Friday, December 31, 2010

27 years of sober ride in Davidson County

If you party in Nashville New Years Eve, you get a free ride home from the Davidson County Sheriff by participating in the Sober Ride program. Read about it:

Thursday, December 30, 2010

Bumpy ride for DUI 3rd driver

In Elizabethton, Tn a driver drove over a speed bump at high speed. When stopped he turned out to be a 3rd offense DUI, who was driving on a revoked driver's license and he violated the implied consent law. He pled guilty and is spending 170 days in jail. Kudos to officer Douglass Combs for a job well done.
Read more at:

WSMV news story

Last night I was part of the WSMV News story about the new ignition interlock law with Nancy Ammons, who is always a pleasure to deal with. See the report at:

Wednesday, December 29, 2010

Tuesday, December 21, 2010

Cookeville officer runs down impaired driver.

I hope CPD officer Josh Ward is in good shape. It appears from the news he has been running down DUI drivers on foot and has been catching them even when they are driving. Wonder if there is a law enforcement olympics?

Read about it at:

What was this guy thinking

A Rutherford County tractor thief tried to run over 3 deputies in a tractor. How did he think this would end?

Read about it at:

Monday, December 20, 2010

Webinar

Thanks to all who attended the webinar today. Total attendance was 256 from 20 States, D.C. and Canada.

Nashville DUI Arrests drop in 2010. Patrols diverted by flood.

Monday's City Paper in Nashville included a story about DUI arrests in 2010. Quoted are Nashville/Metro Police Lt. Kenneth Walburn, GHSO Director Kendell Poole and Elizabeth Hosmer, finance and marketing administrator for the GHSO. A couple interesting notes:
1) Arrests are down due to the need to shift officers to flood recovery.
2) Fatalities are about level.
3) The percentage of alcohol related fatailites are still at about 40%. The State average is 31%.
4) In 2011 overtime funding will drop to $400,000 after being nearly a million in the past.

Read the article at:

http://nashvillecitypaper.com/content/city-news/flood-funding-woes-lead-drop-dui-arrests-2010

Saturday, December 18, 2010

Remember your oath this Holiday season

I just read a story about a Prince William County, Maryland prosecutor being arrested for DUI and possession of schedule 1 drugs. He is still working and the last line of the story from his boss stated, "He is a good prosecutor".
Please, please, please remember that no part of committing any crime is consistent with the oath we take to be Tennessee lawyers, much less prosecutors.
A criminal act is not something that "honestly demeans myself in the practice of my profession". Don't let the good people of Tennessee down by foolish behavior.

Rule 6, Tennessee Rules of the Supreme Court, requires the following oath for attorneys:
"I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Tennessee, and that I will truly and honestly demean myself in the practice of my profession to the best of my skill and abilities, so help me God."

25 year license suspension for Oklahoma V.H.

Oklahoma City Woman Sentenced to 7 years

A woman who was driving drunk last year crashed into a IHOP and killed a customer and killed a customer sitting inside.

Nina McCollom, 25, crashed her SUV into an IHOP at Northwest Expressway and Council Road in April 2009. James Pitts, a customer sitting in a booth, was killed. Police said McCollom's blood alcohol level was nearly three times the legal limit at the time of the crash.

McCollom pleaded guilty to manslaughter. After she serves her sentence, she won't be allowed to have a driver's license for 25 years

Read about it at:

OKC Woman Sentenced In Deadly DUI Accident - News9.com - Oklahoma City, OK - News, Weather, Video and Sports |

12 years for Vehicular Homicide in Columbia, Tn


Ricky Ray Redd, Junior, 37, was arrested in August on charges of vehicular homicide, vehicular assault and aggravated vehicular homicide. The charges are the result of a May 22nd accident in the city of Lawrenceburg. Mary Jo McDonald, 56, of Lawrenceburg, succumbed to injuries in July that she sustained in that accident. Redd pleaded to the charge of vehicular homicide and received a twelve year sentence to be served at 30 percent.

Wednesday, December 15, 2010

Protecting Lives, Saving Futures Kentucky

JoAnn Michaels, Director of the National Traffic Law Center, had a nice suggestion for prosecutors today. Watch the video. It is 37 seconds long.

Friday, December 10, 2010

Thursday, December 9, 2010

New DUI traffic stop decision

The Court of Criminal Appeals has affirmed a traffic stop that included a citizen call, a couple of land crossing weaves and a right turn executed from the center lane. The case from Wilson County was prosecuted by ADA Linda Walls.
Read it at:

General Gibbons named Commissioner of Safety

Memphis/ Shelby County District Attorney Bill Gibbons has been named Commissioner of the Department of Safety and Homeland Security. Amy Wierich will be the new Memphis, Shelby County DA. Amy has been the chief assistant since August and will be our 3rd female DA out of 31 in Tennessee.

Read about General/Commissioner Gibbons and General Weirich at:

Officers: Twice-daily breath tests help with enforcement

In South Dakota and Helena, Montana officials are attempting a new method to monitor recidivist DUI offenders. The offenders have to report and perform a breath test two times a day or wear an alcohol monitoring ankle bracelet. The monitoring permits recidivist offenders to spend less time in jail, but more time under monitoring supervision.

Read about it at:

Thursday, December 2, 2010

Honor your momma, unless she won't buy your beer?

On most occassions Tennesseans show great respect to the woman who carried them through 9 difficult months of pregnancy, gave birth and raised them to adulthood. One 42 year old resident apparently forgot his debt to his mother. The headline reads:

Soddy Daisy Man Charged With Trying To Burn House Down When Mom Would Not Get Him More Beer

Read the story at:

http://www.chattanoogan.com/articles/article_189639.asp

Tuesday, November 30, 2010

New DUI decision

In Knoxville in 2006 KPD officer Clayton Morrison pulled over a driver after receiving a call to be on the lookout for a possible impaired driver. After the officer observed the vehicle described in the call he followed it and saw clues of impaired driving. The driver refused all field sobriety tests, but was convicted by a jury. The conviction has now been affirmed and the decision is available at:

Kudos to A.D.A. Sara Winningham for her efforts in convicting this offender for DUI 3rd offense.

Drugged fatality report

NHTSA has released a new report indicating that 18% of drivers in fatal crashes had drugs in their bodies. Read the full report at:

Monday, November 29, 2010

K2 and salvia

Interesting characters following this site keep sending posts about the legislative act passed in 2010, which banned both K2, synthetic marijuana, and salvia divinorum, the hallucinogenic plant. Yes, both were banned. Yes, they are two separate things. Yes, the laws will be enforced. Yes, druggies will find other things to poison their bodies with. Get over it gentlemen. If you or your cohorts want to smoke, snort or inject these substances, go to some other State or Nation, or plan to visit a friendly Tennessee county jail.

Wednesday, November 24, 2010

Ohio man gets 10 years for 15th DUI

"It is nothing short of a miracle that no other souls have been harvested by the defendant's four-wheeled scythe.''
stated prosecutor Michael Burnett in a sentencing memorandum. The defendant with a .286 BAC was convicted in a jury trial. He had a history that included killing a young woman in a previous DUI.

Link to the story at:


Monday, November 22, 2010

Centerville man guilty of aggravated vehicular homicide in Nashville

Ian McClellan, 31, of Centerville pled guilty on his trial date Tuesday, November 19th to aggravated vehicular homicide. McClellan will be sentenced by Judge Mark Fishburn January 18, 2011. McClellan killed Katie Kerr of White Bluff, when he crossed the centerline and crashed into her vehicle head on. McClellan faces 15-25 years at sentencing.

DUI proof is less demanding after a murder


Some DUI's are easier to prove than others. The evidence in State v Whited was that the officer recieved a call to look out for and stop the Defendant. The defendant appeared to be extremely intoxicated. A blood sample was drawn with a .23 and a variety of drugs. There were no challenges to the stop or failure to conduct SFST's, challenges to the blood test result or any other wacky defenses.
That may have been due to the fact that the defendant was leaving a murder scene in which he shot and killed an old friend. Whited was convicted of second degree murder, DUI 4th offense and suprise, suprise: Driving on a revoked license!
Congratulations to John Galloway in the 8th District.
Read the case at:

http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/104/State%20vs%20Keith%20A%20Whited.pdf

Friday, November 19, 2010

Canada's Implied Consent penalty

Those who refuse a breath or blood test in Canada better have some deep pockets. The penalty for refusal is a minimum fine of $1,000 plus a $150 surcharge for victims and a loss of license for a year.

Read about one unhappy refuser at:

http://telegraphjournal.canadaeast.com/city/article/1313401

Monday, November 15, 2010

These pills won't result in DUI's!

Father, son sentenced for delivery, sale of pills

By Staff Reports
JohnsonCityPress.com

A father and son arrested for the delivery and sale of more than 1,000 oxycodone pills in the Johnson City area pleaded guilty Nov. 3 in Greeneville Federal Court, according to a news release.

Ronnie Vaughn Kwaitkowski, 62, 1907 6th Street, Bradenton, Fla., and Matthew Todd Kwaitkowski, 27, 171 Hillendale Lane, Gray, were sentenced on charges of selling illegally diverted prescription drugs in the city.

Police charged the Kwaitkowskis in September 2009, following an investigation. Ronnie Kwaitkowski was sentenced to 70 months in federal prison, and Matthew Kwaitkowski was sentenced to 60 months.

Friday, November 12, 2010

Illegal immigant who killed legal immigrant driving impaired gets 8 years to serve

Kudos to ADA Kyle Anderson of the 20th Judicial District in Nashville, who prosecuted the sad case of State v Neri. Neri came across the border from Mexico several years ago. He was driving impaired when he killed Bhima Koirala, a legal immigrant and father of five, who came from the island of Lilai, near Indonesia. The Judge sentenced Neri to eight years in a decision rendered Wednesday.
Read and see the coverage from Channell Four news and hear the Judge take a shot at the federal govenment for it's policies at at:

http://www.wsmv.com/education/25649308/detail.html

NEW DUI pill Case

Kudos to ADA Darrell Julian, of the 31st Judicial District in McMinnville. The Court of Criminal Appeals has affirmed his trial conviction in a case in which the defense asserted that therapeutic levels of prescription drugs should have excused the horrendous impaired driving of the defendant. For a second offense, the defendant was sentenced to serve 73 days of her 11 month 29 day sentence.
The Defendant also messed up by delaying the case until she was able to pick up a new DUI. Some people don't learn. Read the case at:

http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/104/State%20vs%20Evelyn%20Cotton%20Self.pdf

Wednesday, November 10, 2010

Lawnmower driver convicted of DUI 6th


Kudos to ADA Brandon Haren, who prosecuted and convicted Martin McMurray in a jury trial Tuesday. McMurray drove his lawnmower on the wrong side of the highway on April 9th with a .15 BAC level. He was convicted of DUI 6th offense and for a violation of the habitual motor vehicle offender act. Sentencing will occur in December. Read about it at:

Supreme Court grants cert in Bullcoming v New Mexico

The U.S. Supreme Court has granted cert in Bullcoming v New Mexico. This case is worth watching.
The issue: Whether the Confrontation clause permits the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the lab0ratory analysis described in the statements.

The New Mexico Court had determined:
" Although the blood alcohol report was testimonial, we conclude that its admission did not violate the Confrontation Clause, because the analyst who prepared the report was a mere scrivener who simply transcribed the results generated by a gas chromatograph machine and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy Defendant's right to confrontation.

In almost all Tennessee cases, the analyst who wrote the report testifies about the report. The exceptions I recall two exceptions. One occurred when the supervisor came to testify after an analyst moved out of State with cases pending. The second occurred when the lab analyst had to be in Knox County and Hamilton County for trials on the same day. A supervisor came and testified in Hamilton County. Hopefully, the Court will recognize that the test is performed by the gas chromatograph. The human, forensic analyst simply writes down what was found by the instrument. We will have to wait and see.

Monday, November 8, 2010

Man Pleads Guilty In Deadly DUI Case, Gets 10 Years

ADA William Lamberth in the 18th Judicial District (Gallatin) is quoted in this article about another tragic death on Tennessee roadways. The defendant was a .13 BAC, when he ran a red light and slammed into a mechanic, Calvin Miller, Jr., who was returning a repaired car to it's owner. Excellent investigative work by the Hendersonville police department was honored as was the excellent work by the THP C.I.R.T. unit.
Contrasting to Mr. Miller's reason for being on the road were the facebook brags of the defendant, Timothy Rush, who was drinking heavily and proud of it the night of the crash.

Read about it at:
http://www.newschannel5.com/Global/story.asp?S=13460740

Friday, November 5, 2010

Kelly Jackson, 23rd District

A new DUI decision has affirmed a DUI conviction in the 23rd Judicial District, prosecuted by Kelly Jackson. The defense argued that the breath test observation period was not observed, because at some point the officer, Deputy Donnie Brasco, reached into a drawer, got a mouthpiece out and placed it on the instrument. The Court did not buy it and pointed out that the key to the observation period is that a defendant not drink, smove, reguritate or put anything in his mouth.

Read the decision at:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/104/HaleChadNicholasOPN.pdf

Saturday, October 30, 2010

Wednesday, October 20, 2010

DRE Recognized as Expert Witness

In Sequatchie County Assistant District Attorney David Shinn succeeded in a jury trial in Circuit Court in qualifying Drug Recognition Expert Paul Howard as an expert witness. Once Deputy Howard testified about the results of the HGN and other testimony about drug impaired eye movements, the defendant changed his plea to guilty as charged.

Prescription drug DUI issue in the USA Today

The USA Today includes an article which focuses on a case from Florida. The problem of proving impairment, when the impairment comes from prescription drugs is the issue. Read about it at:

http://www.usatoday.com/news/nation/2010-10-17-dui-drugs_N.htm

Sunday, October 17, 2010

In the news 2

The Tennessean ran a nice article today about drugged driving issues. I gave a hint as to where we are going in the next Legislative session in which the DA's Conference is going to push to end the privilege or refusal to test for multiple DUI offenders.
Read it at:

http://www.tennessean.com/article/20101017/NEWS01/10170360/Rise+in+drugged-driving+crashes+brings+call+for+tougher+laws

Wednesday, October 13, 2010

In the News

Nancy Ammons at WSMV tv has been running a series of stories about the ten year gap period in our DUI law. The first story Friday was about a vehicular homicide guy, who got out of prison after 13 years and was then a first offender. The second was about a DUI 10th offender, who was only a 2nd due to a 10 year gap in prior convictions. The third was an interview with me. Read about it at:
http://www.wsmv.com/news/25385218/detail.html

Monday, October 11, 2010

Wednesday, October 6, 2010

World reknown burn specialist killed by impaired driver


In Dallas, Texas, Dr. Gary Pardue was riding his motorcycle at 7:30 a.m., wearing his helmet and protective gear. Dr. Pardue was a burn specialist at U.T. Southwestern. He was struck by a car driven by a 24 year old, who has been charged with intoxication manslaughter.
After the 9/11 attacks Dr. Pardue arranged a much needed delivery of skin replacement to New York City to treat those burned in the attack. In 1998 Dr. Pardue was recognized as Physician of the Year.
His journey ended abruptly, but his contributions to society will continue due to his great work with burn victims and as a leader and educator.

15 year sentence for Aggravated Vehicular Homicide

An Elizabethton man pled guilty and recieved a 15 year sentence, which is the minimum for aggravated vehicular homicide. James Allen Griffey had two prior DUI convictions.
In the case he weaved onto the right shoulder, overcorrected, crossed the centerline and slammed into a motorcycle driven by James Gano of Ohio.
Griffey had a .06 BAC and had four drugs in his system: diazepam, nordiazepam, meprobromate and carisoprodol.
Read the complete article in the Johnson City Press at:

http://www.johnsoncitypress.com/News/article.php?ID=81774

Monday, October 4, 2010

Newsletter Available

The 32nd issue of the DUI NEWS is available on our website at: http://dui.tndagc.org

It includes a discussion concerning the 1966 Schmerber desicion by The U.S.Supreme Court, which permitted mandatory blood draws in DUI cases; new case law, information about inhalant abuse and Court decisions including plea agreements in vehicular homicide and assault cases.

Hope it is helpful.

Friday, October 1, 2010

New DUI Decisions from the Court of Criminal Appeals

State v Berry http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/103/BerryRickyNOPN.pdf

Berry passed a police cruiser going the opposite direction. When he did he ran off the roadway and hit the curb. The officer turned around, pulled him over and found an impaired driver. Berry went to trial and was convicted for his 3rd DUI. The Court gave him 200 days in the slammer to think it over.

State v Patterson
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/103/State%20vs%20Larry%20J%20Patterson.pdf

Patterson was driving so badly that a fireman pulled him over. The fireman flashed his lights and honked his horn until he stopped. The fireman, also an E.M.T., discovered Patterson had tipped back a few too many. When Patterson realized the fireman was not an officer, he peeled out and nearly hit him. When officers found him later Patterson locked himself in his car. He's locked in the jail now.

Wednesday, September 29, 2010

Worst traffic in America---Nashville, Tennessee

Which city has the worst traffic? For years we have been hearing about the notorious traffic jams of Los Angles, the worst in the nation. But now a new study is saying hold on -- Nashville

Read about it on ABC NEWS at:

Vehicular Assault brings 4 year sentence to serve

A new case from the Court of Criminal Appeals affirmed the sufficiency of evidence and sentence of four years to serve.
In State v Teaster, the driver's blood test indicated she had taken prescription medications that had impaired her ability to drive. They included valium and soma. The driver slammed into and caused serious injury to an 85 year old victim.
Read the case at:

Effects of salvia


This person is showing the effects of salvia. Notice how he loses his ability to speak and fears his own hand. There is a reason the legislature banned this stuff!

Tuesday, September 28, 2010

Tn Supreme Court reinstates taillight conviction

The Tennessee Supreme Court has reversed the Court of Criminal Appeals and reinstated the conviction in State v Brotherton. In the case a trooper saw a bright white light shining from a broken, but partially covered taillight. The light had been covered by red tape, but the tape only covered a little more than 50% of the light and bright white light was visible to the trooper.
The Court found the trooper had reasonable suspicion to stop the car based on the taillight. It made a point of stating that a taillight did not have to be in perfect condition. It can be properly repaired or covered with red tape, but if a bright white light is shining through an officer can stop the vehicle to check it out.
Read the case at:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/103/State%20v%20Mike%20Brotherton%20opn.pdf

Monday, September 27, 2010

55 years for driver who killed Angel's pitcher, Adenhart

Nick Adenhart had pitched 6 scoreless innings in his first start in 2009 for the California Angels. Hours later he and two friends were dead. Two others were injured. The impaired driver, Andrew Gallo, 22, had a BAC of .19. Gallo had been convicted of DUI three years earlier and was still on probation when he crashed. Video in the trial depicted him and a friend drinking heavily at a bikini bar earlier in the evening. Gallo received a 55 year sentence for second degree murder in the case.
Read about the case in the Los Angeles Times at:

Thursday, September 23, 2010

Marijuana driving kills 3

SALT LAKE CITY (AP) — An arrest report says a 26-year-old driver smoked marijuana heavily for several days before falling asleep at the wheel of a tour bus that crashed in Utah, killing three Japanese tourists and injuring 11 last month.

Yasushi Mikuni was charged Wednesday with 10 felony counts of negligent driving under the influence, and one misdemeanor charge of having marijuana residue in his system.

Read the full story at:

Tuesday, September 21, 2010

Distracted Driving

The Department of Transportation is conducting a summit today concerning distracted driving. It can be seen live on C-Span or viewed later on that channel.

Watch it now or later at:

10 year sentence for vehicular homicide

Two motorcyclists were killed by a driver who had two pending DUI cases, including one in which she drove teenagers around while impaired. The driver, Sara Smith or Lamb, had a .13 BAC level and crossed into the path of the motorcycle. Smith was facing up to 32 years, but apparently benefitted from the fact that her childhood and past were pretty lousy.
Read about it in the Chattanoogan at:
Read about it in the Chattanooga Times Free Press at:

Sgt Mark Chesnut testimony

For those who don't wear a badge every day, the testimony of Sgt. Chesnut in the trial of those facing trial for attempted murder is chilling and revealing.
For those who wear the badge every day, the testimony is a reminder of how quickly danger can swoop in and take life on this earth away.
Read about it the Tennessean at:

Wednesday, September 15, 2010

Persistence is 3 DUI's in one evening

Police: Man crashes, tries to tow cars while drunk

A 54 year old guy in Washington crashed his truck into a utility pole. He walked home and got his wife's car and crashed it into a guard rail. He went back again and got his tow truck to try and tow the two vehicles. He pulled up to one of the crash scenes, while the police were investigating. He ended up with three DUI arrests. Read about it at:

Tuesday, September 14, 2010

ADAT Treatment

Last year 1,529 convicted DUI offenders completed in patient treatment in Tennessee, funded by the A.D.A.T. program. 80% of them did not get arrested again within 6 months of treatment completion. To receive ADAT funding the driver had to be indigent. This information was provided by the A.D.A.T. Director.

Vanderbilt Pediatrics

I heard a presentation today from Purnima Unni, MPH, CHES, Injury Prevention Coordinator of the Pediatric Trauma Program at Vanderbilt Children's Hospital. She stated that 18% of pediatric emergency admissions are due to traffic crashes.
For children aged 10-14, traffic crashes are the leading cause of admission. 50% of kids in the pediatric emergency room for traffic crash injuries were not wearing seat belts.
Seat belt or surgery?

Friday, September 10, 2010

Three new DUI decisions

The Court of Criminal Appeals has issued three new opinions in DUI cases.

(1) State v Thompson: Defendant Thompson won a statute of limitations argument in the Trial Court. The Trial Judge dismissed a DUI after determining the statute of limitations for the misdemeanor had expired. The Court of Criminal Appeals reversed the decision. The case had not been tried in the Criminal Court within a year after arrest. However, the defendant had bound his case over to the grand jury prior to the running of the statute, so the prosecution had been commenced despite problems with the affadavit of complaint.

(2) State v Daqqaq: Defendant Nader Daqqaq used the old favorite defense of "my passenger was really the driver and the officers were either blind, stupid or dishonest." It did not work. The jury convicted and Daqqaq recieved a sentence including nine months in jail.

(3) State v Adkins: Defendant Adkins argued that his two prior convictions for DUI should not have been admitted and that the State did not prove that he drove and crashed his truck. The Court affirmed the Trial convictions.

To view the opinions go to:
http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/103/adkinseopn.pdf
http://www.tsc.state.tn.us/OPINIONS/Tcca/cc3qtr2010.shtml
http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/103/thompsonsopn.pdf

Lifesavers Conference

The Tennessee Lifesavers Conference was conducted this week in Nashville. It was attended by over 400 persons dedicated to saving lives on our highways. The Governor's Highway Safety Office and Director Kendell Poole had wonderful break out sessions for educational purposes. The luncheon speaker, Ken Sharp, runs a radio program in Los Angeles called Ridin Dirty, which focuses on changing behavior to eliminate impaired driving.
He noted, the time to change our society is now and it can be done. Remember the campaign to eliminate littering called Keep America Beautiful? Littering is extremely rare now. Of course, their was not a littering industry advertising littering like the alcohol industry. There were no pro-litter lobbyist in Congress. Ken is right though. The time to eliminate impaired driving is here and now. Once impaired driving is eliminated, won't people look back and ask what were those people thinking? Why did that society permit thousands and thousands of deaths on the highways every year? Why didn't people stop their friends, familiy members and co-workers from driving impaired? Did they not care about one another? Was driving impaired more important to them that the lives of their fellow citizens? Talk about it with your families, friends and co-workers. Stop the madness now!
Check out www.ridindirtyradio.com

Thursday, September 2, 2010

Supremes grant cert. in State v Cooper

The Tennessee Supreme Court has agreed to hear the appeal of Alecia Cooper from a sentencing decision affirmed in the Court of Criminal Appeals. Cooper, a nurse, committed a DUI in Illinois and a second in Tennessee with a .22 B.A.C. within a week. The Trial Court sentenced her to serve 11 months 29 days at 100%, but indicated a furlough would be granted after 90 days, so she could attend in patient treatment. The Court of Criminal Appeals reviewed the case with a presumption that the sentence was correct and that the appellant failed to overcome the presumption.

20 year Vehicular Homicide sentence


In Dyersburg, pro-se defendant Vincent Williams went to trial and decided to enter a plea.

Williams was accused of stealing a truck, leading police on a high-speed chase through town and crashing head-on into a pickup truck in front of the Dyer County Jail on July 25, 2009. The driver of the pickup truck, Jeffery Lynn Richardson, was killed.

Williams faced charges of first-degree murder, vehicular homicide as a result of intoxication, theft of property in excess of $1,000 and evading arrest in a motor vehicle.

With the consent of Richardson's family, District Attorney Phil Bivens entered into a plea agreement. Williams would plead guilty to the vehicular homicide charge and the rest of the charges would be dismissed. Williams accepted the maximum penalty for the crime as a multiple offender, 20 years. However, he will be eligible for parole after serving only 35% of his time, due to Tennessee sentencing law, where vehicular homicide is not considered a violent crime. Read the full story at:

Poll results

Fifty one people took the poll about potential 2011 legislation. No one could vote for more than one result. The winner with 54% of the results was a proposal to eliminate the implied consent refusal option for multiple offenders. In second place was a proposal to set a zero per se limit for illicit drugs and driving. In third place was the proposal to lower the extreme DUI level from .20 to .15. Thanks for your input. It will be reported to the DA's Legislative Committee for their consideration.

Learning about speed

At an SFST class at Arnold Air Base near Tullahoma yesterday I learned something new, proving even an old dog can learn new tricks. I never knew that as part of radar speed measurement training, every officer watches 20 cars in traffic and has to estimate the speed of the various cars within 5 mph, using only his/her senses. Correct speed estimates are required to complete the course. That should be a nice bit of evidence of training and experience in a case where a stop is based on speed. I asked the officers in the training how many Prosecutors they thought knew that tidbit. They answered none. Let's change that right now. Let your co-workers know about it. Use it in Court. Talk about it. The training that officers recieve is very diverse and extensive.

Friday, August 27, 2010

New Vehicular Homicide Affirmation

The Court of Criminal Appeals has affirmed the conviction in State v Craft. This Madison County tragedy occurred in June, 2008. The Trial prosecutor was Anna Cash. The THP expert crash reconstruction officer was Trooper Chris Lee. First on the scene was Trooper Tracy Stanfill.
The Defendant challenged the sufficiency of the evidence and the admission of a 9-1-1 call as an excited utterance.

Read the full decision at:
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/103/State%20vs%20Terry%20Lynn%20Craft.pdf

Recognizing Partners

This summer seven Clarksville, Tn., Shell and BP convenience stores operated by Huddleston Oil Co. recieved state certification as "Responsible Vendors" with the help of the Community Anti-Drug Coalition of Rutherford County.
"Being a locally owned company, we are very committed to being good neighbors and being a positive influence in our community," said George Huddleston, president.
"CADCOR provided the training to our employees on responsible alcohol sales through their TIPS training program, which enabled us to achieve this certification for each store employee and reduce the possibility of sales to underaged or intoxicated customers, thereby enhancing safety and quality of life for all of us." (reprinted from Clarksville Daily News June 27, 2010)

Businesses that eliminate sales to underage drinkers or intoxicated persons do us all a big favor. Maybe, just maybe, someone did not suffer injury or death, because this company is proactive.
Thanks to CADCOR for making this possible.

Wednesday, August 18, 2010

News from Memphis

Congratulations to Amy Weirich, who has been named the Chief Deputy in the Shelby County office. Amy succeeds James Challen III, who has retired after 32 years of service. Amy started in the Memphis, Shelby County DA's office in 1991 and had recently served as chief prosecutor in the gangs and narcotics unit.

Tuesday, August 17, 2010

Ignition Interlock Companies

Dis you know there are currenly 24 companies that install and maintain ignition interlocks in Tennessee that have been approved by the Department of Safety.
To see the list visit our website at:

http://dui.tndagc.org




Monday, August 16, 2010

Can you forfeit 2nd Amendment right due to stupidity?

From the Maryville Daily Times:



I discovered this news on the Lexington, Ky DA's website and thought you might want to know about it:

Ta Kisha Fitzgerald and Leland Price were honored by the National District Attorneys Association (NDAA) in a ceremony at it’s annual conference in California.

The “Home Run Hitter’s Club” recognizes exemplary effort by America’s prosecutors in the search of justice in some of the nation’s most horrendous crimes.

Prosecutors Fitzgerald and Price are inducted into the NDAA's Home Run Hitters Club.

Prosecutors Fitzgerald and Price are inducted into the NDAA's Home Run Hitters Club.

Both Ms. Fitzgerald and Mr. Price were inducted into NDAA’s “Home Run Hitter’s Club” for their exemplary prosecution of four defendants who committed a horrendous case involving the murder and rape of two University of Tennessee students.

THE FACTS OF THE CASE:

In Knoxville, Tennessee, on January 6, 2007, Channon Christian, age 21, and Chris Newsom, age 23, while on a date, were carjacked at gunpoint by three men. Blindfolded and bound, they were taken to a nearby house where a woman was waiting. Soon after, Chris, still bound, was led to secluded railroad tracks nearby, where he was anally raped, shot execution style in the back of the head, and his body doused with gasoline and burned. Channon, held captive at the house for 24 hours, was raped repeatedly and brutally beaten and kicked. At the end of the ordeal, she was hog tied and stuffed into a trash can, causing death by suffocation. The perpetrators then fled.

THE OUTCOME:

By the end of May, 2010, the ringleader, Lemaricus Davidson, was convicted of four counts of first-degree murder and given four sentences of death. George Thomas was convicted of four counts of first-degree murder and given four sentences of life without parole. Davidson’s half brother Letavis Cobbins was convicted of two counts of first-degree murder and given two sentences of life without parole. These three men were also each convicted of numerous counts of rape, kidnapping, and aggravated robbery. Davidson’s girlfriend Vanessa Coleman was convicted of facilitation of murder and most of the other related crimes and faces a sentence of up to 77 years.

An outstanding job done by two bright and articulate young prosecutors in District Attorney Randy Nichol’s office. Congratulations on a job well done.

Ray the DA

Yu have probably heard of Lexington, Kentucky prosecutor, Ray Larson. You should visit his website. It is remarkable.

Thursday, August 12, 2010

Meth Lab Found At Drug Rehab Center

You may have chosen the wrong rehab, when you discover that some of the patients used their room as a meth lab.
Read about this LaVergne, Tn crime at:

http://www.wsmv.com/news/24606051/detail.html

Jury Selection Interesting Law

Did you know:

TCA 22-3-104 permits either party in a lawsuit to challenge for cause a juror's qualification to serve if:
1) The juror is drunk;
2) The juror has been drunk during the term of the Court; or
3) The juror is a habitual drunkard.


That could make a voir dire interesting. Imagine asking: "Who, if anyone has been drunk during the last (fill in the term of the Court here)?"
Of course, you might want to wait until seven of your twelve jurors tell you they have had a DUI conviction in the past!

Monday, August 9, 2010

Multiple DUI driver arrested on 49 cc Scooter

On Friday afternoon a Kingsport driver, Carson L Reed, with a revoked license and numerous prior DUI convictions was arrested driving a scooter on U.S. Highway 11W. He was going between 5 and 10 mph near the Allendale Mansion causing a traffic mess. Imagine the surprise if you were driving the speed limit of 45 or 55 and came up on this guy. Thanks goodness no cyclists or joggers ran him over!

Gallup Poll---Alcohol

Gallup's annual drinking poll indicates that 67% of U.S. adults drink alcohol, an increase over last year and the highest rate of alcohol consumption since 1985. The poll also showed that beer remains the most popular drink in the U.S., followed by wine and then liquor.

Friday, August 6, 2010

Monday, August 2, 2010

15 years for Aggravated Vehicular Homicide in Monroe County

Eric Peterson, 41, of Tellico Plains, Tn has recieved a 15 year sentence. He killed his passenger, Angela Nichols when he lost control of his pick up, went down an embankment and slammed into a tree. Pederson had a .20 blood alcohol level and one prior DUI conviction from Rio Rancho, New Mexico in 1990. Jim Stutts prosecuted the case for the State.

Friday, July 30, 2010

DUI Traffic Stop Affirmed

The Court of Criminal Appeals affirmed the decision of Nashville Judge Fishburn in upholding the traffic stop based on weaving across lane lines on I75 and Vietnam Veterans Boulevard. The officer involved was Corporal Daniel Okert of Goodlettsville. The prosecuting attorney was David Vorhaus. The Court examined TCA 55-8-123 which requires that a vehicle " be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety". The Court also affirmed that the driving gave reasonable suspicion to the officer for a DUI investigatory stop.

Read the case at:
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/103/State%20vs%20Gary%20Lee%20Hunt.pdf

New DUI Decision

The Court of Criminal Appeals has affirmed a DUI trial conviction from Putnam County. The defendant challenged the stop and was upset that the recording equipment had malfunctioned. The DUI 3rd offender refused testing like most multiple offenders.
Marty Savage represented the State. Read the decision at:

http//www.tsc.state.tn.us/OPINIONS/TCCA/PDF/103/State%20vs%20William%20Robert%20Wilson.pdf

Thursday, July 29, 2010

Marshall County bond jumper gets $500,000 bond


John Lynch is facing trial for his 11th Tennessee DUI and for violation of the habitual traffic offender law. He skipped out on bond two years ago and was arrested in Key West, Florida for yet another DUI. After extradition his bond was set at half a million dollars. Note to bond jumpers: if you are on the run, lay off the margaritas!

Drug Recognition Expert officers and toxicology

Between January 1, 2010 and June 30, 2010, 22 Drug Recognition Evaluations were conducted in cases in which the driver was suspected of drug impaired driving by 11 specially trained officers in Tennessee. Twenty one of the evaluations were confirmed with toxicology results. That was a 95.45% confirmation rate. That's some outstanding work!

Monday, July 26, 2010

SFST Training

Tom is headed to Sneedville to teach law, report writing and pre-trial preparation to about 25 law enforcement officers in an SFST class. At about the same time Jim Camp will be teaching a similar SFST class in Burns. Every prosecutor, who handles DUI cases should attend an SFST class at some point. A schedule of law enforcement training classes is available at:

Thursday, July 22, 2010

TDOS Releases Annual Safety Belt Enforcement Report

NASHVILLE --- The Tennessee Department of Safety today released a 90-page report on Safety Belt Enforcement in Tennessee. The annual report, provided to the Tennessee General Assembly, indicates that statewide safety belt convictions increased 138.5 percent from FY 04-05 to FY 08-09. The study also provides data and analysis on safety belt citations issued by the Tennessee Highway Patrol, statewide convictions involving child restraint device (CRD) violations and child restraint device citations issued by THP.

Read full story at:

Great Seat Belt news

Seat belt surveys conducted by the University of Tennessee indicate that seat belt use in Tennessee is now at 87.1%. Thats up 7% from last year. The GHSO attributes the increase to the Rural Demonstration project, participation in traffic enforcement programs by 82% of Law Enforcement Departments and the "Get Nailed" advertising campaign.
Whatever the cause of the increase in use, it is welcome. More seat belt use almost always results in reduced fatalities.

Monday, July 19, 2010

Two DUI Decisions

I am back from vacation and have caught up on my reading. There have been two new DUI decisions of note in the last week. In State v West, a Putnam County case, the defendant had lortab and hydrocodone in her system. TBI Special Agent Dawn Swiney testified that the drugs /could cause a synergestic effect causing impairment. The defense objected to her testimony, but the CCA affirmed. Kudos to Prosecutor Marty Savage. Read the case at:
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/103/State%20vs%20Hollena%20Arlene%20West.pdf

In State v Eatherly, the driver pled to vehicular assault and reckless agg assault and wanted judicial diversion or at least a suspended sentence. The Court believed the defendant was eligible for consideration of judicial diversion, but did not grant it. The driver was going over 100 mph on I-40 with a .22 BAC. The Court agreed with Prosecutor, Rebecca Schwartz, that the driver would recieve a sentence if convicted for DUI. It made no sense to give diversion for the more serious crime of vehicular assault. Read the decision at:
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/103/State%20vs%20Sarah%20Ellen%20Eatherly.pdf

Friday, July 9, 2010

NAPC meeting

I heard an excellent speaker, Mark Warren, from Texas yesterday. He spoke about communication skills and used among other things some of George Thompson's Verbal Judo writings. He reminded us of the acronym L(listen) E(Empathize (A) Ask (P) Paraphrase and (s) Summarize. He also spoke of "Servant Leadership" and referred to Robert Greenleaf. Check http://www.greenleaf.org/

My favorite quote of the day: Good conversation should be like a tennis match, with each player gracefully sending the ball back across the net. Instead, most conversations are like a golf game, with each player stroking their own ball and waiting impatiently for the other to finish.

Tuesday, July 6, 2010

DUI NEWS

The 31st issue of the DUI News, including a focus on new legislation is available on our website. The direct link is: http://dui.tndagc.org/newsletters/DUI News - Issue 31.pdf

Friday, July 2, 2010

Be Safe this weekend

The Highway Patrol and local law enforcement agencies throughout the State have increased enforcement this weekend for good reason. This is a huge travel and huge drinking weekend. Be careful this weekend and drive defensively. There are a lot of people out there that don't care about whether you get home safely. Be alert, Be aware and Be SAFE!

Tuesday, June 29, 2010

48 YEAR Putnam County Sentence Affirmed

Bobby England was sentenced to 48 years in prison for two aggravated vehicular homicides committed March 14, 2008. His consecutive sentences of 24 years were affirmed by the Court of Criminal Appeals. His history include 5 DUI convictions, two felony convictions, failed attempts at supervision and the fact that he was on probation when he committed the offense.
The defense argued the sentence should have been less, because the two killed were passengers of the defendant. The Court refused to create a law that would de-value the lives of passengers. Kudos to ADA Gary McKenzie and General Randy York for their efforts.
Read the case at:

http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20Bobby%20Dwaine%20England.pdf

Undearage Alcohol Sales

In Dickson County, Tennessee a sting operation revealed that the Wet Bar, Sir Pizza, Logan's Roadhouse, GreyStone Golf Club, Camino Real, East End Liquors, White Bluff Wine and Spirits, Scottish Shield Liquors and West End Liquors would sell alcohol to minors. The employees who sold face misdemeanor charges. The businesses will face fines or a suspension of their liquor license.
In the linked article below an employee claims he was distracted by another agent, so he did not check the i.d. of the buyer. I guess in that world, stores can only have one customer at a time.

Read about it: http://www.tennessean.com/article/20100624/DICKSON01/100624053/1991/DICKSON01/10+local+businesses+cited+in+liquor+sale+sting

Monday, June 28, 2010

5 year old vehicular homicide ends with 15 year plea

In Chattanooga, Herineldo Cintron, 47, pled guilty and received a 15 year sentence. Years of delay resulted from the defendant claiming incompetence to stand trial. While out on bond Citron was accused of killing another person while beating him with the walker he used due to injuries sustained in the fatal wreck. The murder case is still pending.
Cintron ran into and over a passenger on a motorcycle stopped at a light. He had a .21 BAC and cocaine in his system. He was speeding and driving like he owned the road.
The victim's husband, who was also injured in the crash, was relieved and happy with the plea. ADA Brian Finley fought the hard fight through years of delay and did a great job of keeping the family informed along the way. He deserves appreciation for a job well done. Please keep the deceased victim, Deborah Kenyon and her husband, Donald, in your thoughts and prayers.



Read the full story at:
http://www.chattanoogan.com/articles/article_178814.asp

New laws are now Public Chapters

The four laws that were promoted by the District Attorneys General Legislative Committee are now all in Public Chapters. None of them are exactly as proposed by the Committee, but pretty close. The links to each are below. The laws:

PC 1080: The counting of priors goes to current offense with a 10 year and 20 year look back for prior offenses. Effective July 1, 2010.
PC 1096: The determination of an implied consent violation can now be made in Sessions Court. Effective January 1, 2011
PC 867: Multiple offenders and repeat offenders shall recieve more srutiny in bond determinations. Effective January 1, 2011
PC 1015: Redefines 55-10-401. Adds and removes language to permit conviction for driving under influence of additional impairing substances and drugs. Effective January 1, 2011

http://state.tn.us/sos/acts/106/pub/pc1015.pdf
http://state.tn.us/sos/acts/106/pub/pc0867.pdf
http://state.tn.us/sos/acts/106/pub/pc1096.pdf
http://state.tn.us/sos/acts/106/pub/pc1080.pdf

Friday, June 25, 2010

Significant new DUI opinion

This week Judge Ogle in an opinion in which Judge Tipton and Witt concurred issued an opinion affecting two significant areas of law. The defense attempted to suppress the "traffic stop", which was based on a community caretaking function. The defense also tried to supress the breath test result, because they could not examine the computer source codes of the breath testing instrument. Each position was rejected in this case. It is an opinion prosecutors and officers should read and keep in mind in future cases.
I have never figured out how the source code issue could ever be examined. If the defense read the source code, which is represented in computer language that looks like numerous number 1's, they would use a computer to read it. Would that mean the State would be entitled to the source code for the Microsoft program used by the defense? And then would the defense get the source code for the program used by the State to read it's review? Sounds like an endless loop. The case would then be heard in 2017. Of course, that might be the whole goal of the defense request for the source code.
Read the case at:

http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20Elizabeth%20Gay%20Tindell.pdf

Wednesday, June 23, 2010

Woman Arrested 207 Times Pleads Guilty To DUI Charges

In Gallatin today, Rhonda Hesler, 42, pled guilty to 2 counts of DUI. According to the article below, her record was 130 pages long. I wonder if it fit into one of those General Session Court file envelopes.

Read about it at: http://www.newschannel5.com/Global/story.asp?S=12693342

Tuesday, June 22, 2010

Vehicular Homicide plea

Tina Gail Strickland of Johnson City pled guilty to vehicular homicide in Carter County today. Sentencing is scheduled for July 13.
Trooper Jacob Stielow investigated the crash August 3, 2009. The defendant was at a residence drinking and had a minor accident. The homeowner attempted to stop her from driving. She ran into and killed Opal McGhee. The defendant had a BAC of .20.

Read more at: http://www.johnsoncitypress.com/News/article.php?ID=78042

At the DUI Conference

I was sitting with 3 prosecutors when this conversation happened:

ADA 1: I don't think the defense attorney knows I have a problem with the law in my case.
ADA 2: So, what are you going to do?
ADA 3: If he doesn't know, could you win?
ADA 1: Yes, but it would be wrong. I have to tell him.
ADA 2: Yeah, you do.
ADA 3: No doubt about it.

That's what makes Prosecutors different. It is an honor to be a Prosecutor. For the ADA it is not about winning or losing. It is about doing the right think every day.

Monday, June 21, 2010

VH plea for driver who killed Court clerk

A Knox County Criminal Court clerk was killed in April, 2008. The 21 year old driver who ran into Mary Lynn Hurley will serve a 5 year sentence. The driver, Charles Berry, was convicted of reckless vehicular homicide. He had a medical condition that should have banned him from driving. He ignored the condition, drove, passed out behind the wheel and killed Ms. Hurley.

Read more at: http://www.knoxnews.com/news/2010/jun/18/knox-driver-headed-to-prison/

salvia divinorum K2 spice banned

The Tennessee General Assembly passed a law this year making it illegal to produce, manufacture, distribute, possess or possess with intent to produce, manufacture, or distribute the active chemical ingredient in the hallucinogenic plant salvia divinorum. This drug is commonly known as K2 or Spice. It is the synthetic marijuana susbstitute that has been sold in stores as an incense for the last few years. The law takes effect July 1, 2010.
Read the law at:
http://state.tn.us/sos/acts/106/pub/pc0922.pdf

Vacation is over

A week on the Atlantic Coast of Florida was good for the body and soul. I even took a blog vacation!
We begin our three day Advanced DUI Prosecution course tomorrow for about 50 prosecutors. It looks very promising with outstanding speakers including our Chief Justice, Alcohol Treatment Court guru, David Wallace and former prosecutor John Bobo, Drs Ferslew and Davis and even former Tennessee Vol, Dane Bradshaw.
Sadly 9 people died on our roads over the weekend in Grainger (2), Maury, McNairy, Dyer, Hancock, Decatur, Lawrence and Scott Counties.
The one thing in common in these wrecks is that they all happened in rural counties. We have had 67 traffic fatalities in June. There were 43 in June last year.
The average age of the deceased was 44 years. One was on a motorcycle. Eight were drivers in single vehicle crashes who ran off the road or into a fixed object. The ninth was a driver in a 2 vehicle crash. Please keep these drivers and all 461 people who have died this year in Tennessee in your thoughts and prayers.
Please drive defensively as you trek to Nashville for our conference or anywhere else.

Friday, June 11, 2010

Comments concerning posts

I occasionally receive a comment about a post. If the comment is relevant and the person making the comment wants it published, I will publish it.
Obscene hate mail will not be published. I'd suggest the author of the recent filth laden comment try to find the doors of a church and spend some time inside.

New 55-10-401 effective January 1, 2011

The law defining DUI will be replaced as of 1/1/2011. The law includes inclusive terms to clarify that drivers under the influence of drugs or substances are in violation of the DUI law. Read it at:
http://state.tn.us/sos/acts/106/pub/pc1015.pdf

Thursday, June 10, 2010

DUI felon to get new sentencing hearings

William George Soller Jr. was arrested for his 4th DUI January 29, 2007 and for his other 4th offense DUI August 27, 2007. He had a trial in both cases, was convicted in both and his convictions have been affirmed in both.
His second case occurred while he was on bond. Perhaps the new bond law would have prevented this travesty. He ran a red light and slammed in a motorcycle nearly killing the driver and then left the scene. The 32 page opinion addresses the multiple issues raised during a trial in which the Soller defense attempted to blame the motorcyclist as the culprit.
He is getting a new sentencing hearing. The Courts ruled that his prior aggravated burglary and aggravated assault convictions had to be counted as one, since they occurred within 24 hours of one another.

The two appellate affirmations and reversals os sentencing are available at:http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20William%20George%20Soller%20Jr_2.pdf

http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20William%20George%20Soller%20Jr_1.pdf

Wednesday, June 9, 2010

Rogersville vehicular homicide sentence

In Rogersville, Tennessee, Martin Garrett was sentenced to six years for killing two people when he crossed his lane of travel and smashed head on into their car. A twelve year old daughter survived. The crash happened in 2002. Garrett also received a sentence of 11 months 29 days for simple possession of marijuana, which ran concurrent.

Drag racing motorcyclist sentenced

Two Paris, Tennessee motorcyclists thought it would be fun to drag race. One of them had a female passenger on board. After the crash she died. Both racers have been sentenced to 5 years for vehicular homicide to be suspended after 240 days.
Read the full story at: http://www.parispi.net/articles/2010/06/08/news/local_news/doc4c0e758f6fd62786417108.txt

Tuesday, June 8, 2010

Vehicular Homicide sentence

Congratulations to Latasha Wassom and Jared Effler, Assistant DA's in Claiborne County and Troopers Jim Lee and Charles Massengill for outstanding work in the tragic case of State v Amber Williams. Williams was on probation for DUI, when she drove with alcohol, trazodone (anti-depressant) and Alprazolam (anxiety)in her system. She left Tiprell Road and crashed into a tree killing two passengers. Williams recieved a ten year sentence.
Alcohol and prescription medicines exxaberate the effects of each other. People taking prescriptions must be extremely careful about decisions to drive even without alcohol. The decision should be easy if alcohol is added to the mix. It is a deadly combination.

Monday, June 7, 2010

Hippa issue

Every now and then hospital personnel or a defense attorney claims a blood test or medical record can't be used in a DUI case due to Hippa. Know Hippa and learn that is absolutely wrong.

The Health Insurance Portability and Accountability Act (HIPAA) is not violated by either the State requesting the results of a defendant's medical BAC results, nor by a medical facility providing them to the State. The United States Code of Federal Regulations, 45 CFR §164.502(b)(2)(v), states that HIPAA does not apply to "uses or disclosures that are required by law as described by 45 CFR §164.512(a)". CFR §164.512(a)(1) states: "A covered entity may use or disclose protected health insurance information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law."
CFR §164.512(f)(1)(C) permits a covered entity to disclose protected health information for a law enforcement purpose to a law enforcement official if an administrative request, administrative subpoena, summons, authorized investigative demand, or similar process authorized under law has been made, provided that: the information sought is relevant and material to a legitimate law enforcement inquiry; the request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which information is sought; and de-identified information could not reasonably be used.
Moreover, even assuming a violation of HIPPA, suppression is not the remedy. Remedies for violations of HIPAA are specifically provided for by the statute: violations are remedied by civil and/or criminal sanctions against the individuals who inappropriately disclose information. 42 USC §1320d-5, §1320d-6. HIPAA was not meant to apply to purported police misconduct and does not contain an exclusionary rule as a remedy in the statute.

Saturday, June 5, 2010

Legislature

Whew, it is all over. It has been an honor to work with the General Assembly this year on DUI legislation. We had great sponsors, great ideas and very nice results. More will be posted Monday. We did a lot to fix some long time problems that delayed the resolution of DUI cases like counting prior convictions based on the conviction date of the current arrest, delay in taking the license of the offender, repeated dangerous driving on bond and after multiple convictions and the lack of of a DUI definition that included substances and drugs of different types. The public chapters of new legislation will be posted on our website Monday.
It doesn't hurt that the Legislature this year left the statutory pay adjustment in place and didn't cut pay this time around.

Friday, June 4, 2010

Senate passes bill to change method of determining prior convictions

The Senate has passed SB 0844 as amended to override the Conway and Bowen cases and change the method for counting prior DUI offenses.
Beginning July 1, 2010, if an offender is arrested and is a fourth offender, he will be a fourth offender when he is tried and convicted no matter how long it takes.
The amended language tells us to claculate times from the time of the present violation (arrest) and look back 10 years for other violations (arrests) that resulted in a conviction. The 20 year look back period then comes into play.
If the prior arrest occurred 11 years ago and the conviction for the arrest happened 9 years ago, that prior will not count!
However if the prior arrest happened 9 years ago and the current conviction occurs 11years later, that will count!
This eliminates the incentive to delay cases to have priors fall off the record.
The House has already passed this bill. It is expected they will conform to the Senate amendment today and the bill will be sent to the Governor for his signature.
Read the amended bill at: http://www.capitol.tn.gov/Bills/106/Amend/SA1538.pdf

You can watch the video for clarification of the intent of the Senate at:
http://tnga.granicus.com/MediaPlayer.php?view_id=63&clip_id=3155
Scroll down to SB 0844

Wednesday, June 2, 2010

Johnson City tragedy






In Johnson City, police believe a Gate City man under the influence failed to stop for a red light and killed a fellow humam being.
Perhaps the best thing about red light cameras is the fear drivers have of getting a ticket for running a light. Would that fear have stopped this impaired driver? Maybe or not. In the red light camera debate, do the debaters think about it?

Tuesday, June 1, 2010

Highway Fatalities through May

Preliminary reports for the Department of Safety indicate that 383 persons have died on our roadways so far this year. That's 13 fewer than last year at this time.

Most (301) were in passenger cars. Most (242) were drivers of passenger cars.Most of the drivers (132) did not wear seat belts.
Some (49) were on motorcycles. Most(42) wore helmets.
Fewer (26) were in medium & heavy trucks.

There has been in increase of 12 to 47 fatalities on Interstates.

New Miranda decision

Please find below a brief summary of the Berghuis v. Thompkins case, from Michigan Attorney General Eric Restuccia, who argued the case before the United States Supreme Court.

"The United States Supreme Court reversed the Sixth Circuit in a 5-to-4 decision today, reinstating a murder conviction out of Oakland County.
The Court's decision was written by Justice Kennedy. He wrote in broad terms, establishing three significant principles. First, the police need not obtain a waiver before interrogating a suspect but need only inform the suspect of his rights under Miranda and may begin questioning once the suspect acknowledges his rights. Second, a suspect waives his rights under Miranda once he voluntarily answers questions knowing that he need not do so. Third, a suspect must unambiguously invoke his right to remain silent if he wishes to invoke his right to cut off questioning -- he cannot do so through ambiguous conduct or by merely remaining silent."

See the opinion, briefs and more on the U.S. Supreme Court website at:

http://www.scotuswiki.com/index.php?title=Berghuis_v._Thompkins

NEW DUI CCA opinion

Judge Kelly Thomas has and the Court of Criminal Appeals has issued a new decision concerning the use of prior convictions.
It is a must read item with three key points:

1)If a prior is not signed by a Judge, you can’t use it.
2)If the judgment document does not show a defense lawyer or waiver, that does not mean the judgment cannot be used.
3)If the judgment document does not show the name of the Court, other documents can be used to prove what Court had jurisdiction.
Read it at:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/State%20v%20Jason%20A%20Albright.pdf

Friday, May 28, 2010

In the General Assembly

The Senate worked until midnight last night. Unfortunately, they got did not get to our bill that was number 34 on the docket. They will be back in session Wednesday. I'm tipping my hat to them though. They were on the clock for 16 hours yesterday and did get a lot done.

Thursday, May 27, 2010

Trial Convictions Affirmed May 17th

Case Name-----------Prosecutor---------Top Charge

State v Beasley-----Deborah Housel-----Att 1st Degree murder
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20Demance%20Marshall%20Beasley.pdf

State v Stewart----Weakley Barnard-----Agg Burglary
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20Ronald%20Lee%20Stewart.pdf

State v Pigg-------Weakley Barnard----Theft of Property
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20Sidney%20Leonard%20Pigg%20III.pdf

State v Chadwick---Hugh Ammermon----Agg Assault
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20Roderick%20Samuel%20Chadwick.pdf

State v Cope-----Barry Staubus---- Especially Agg. Kidnapping
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/State%20vs%20Tracy%20Lynn%20Cope.pdf

State v Frith----Walt Freedland and Neil Oldham----Burglary of vehicle
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Ricky%20Frith.pdf

State v Robinson----Ben Mayo----Contraband in penal institution
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Rashad%20G%20Robinson.pdf

Trial Convictions Affirmed May 24th

Case Name-------Prosecutor-------Top Charge

State v Daugherty--Kent Chitwood and Kaylin Hortenstine--Attempted 1st degree murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Gary%20Edward%20Dougherty.pdf

State v Saint Jr.----Brian Holmgren-----Agg. Sexual Battery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20James%20H%20Saint%20Jr.pdf

State v Riggs-------Kevin Allen------Theft over $10,000
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Barbara%20Ann%20Riggs.pdf

NEW 55-10-401 has passed both Houses

The effective date of this law is January 1, 2011. It still has to be signed by the Governor, so it isn't a new law yet. It has been passed in both Houses as follows:
§ 55-10-401.

It is unlawful for any person to drive or to be in physical control of any
automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises that is generally frequented by the public at large, while:

(1) Under the influence of any intoxicant, marijuana, controlled substance, drug, substance affecting the central nervous system or combination thereof that impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess; or

(2) The alcohol concentration in the person's blood or breath is
eighthundredths of one percent (.08 %) or more.

NDAA Training Opportunity: Child Sex Exploitation

Please share this information with the prosecutors who handle these cases in your districts...

The National District Attorneys Association is presenting Safety Net: Multidisciplinary Investigation and Prosecution of Technology-Facilitated Child Sexual Exploitation, September 27-October 1, 2010, at Stonehill College in Easton, MA.

Safety Net addresses multiple areas within the investigation and prosecution of technology-facilitated child sexual exploitation, including online luring and soliciting, child pornography, forensic examination of the computer, pro-active and reactive investigation strategies, search and seizure issues, compliant victim scenarios and meeting untrue defenses.

Due to the intensive hands-on nature of the course, the number of teams accepted is limited. NDAA's National Center for Prosecution of Child Abuse (NCPCA) supports a multidisciplinary approach to technology-facilitated child sexual exploitation cases. Preference will be given to those who apply to attend as a multidisciplinary team (MDT). The ideal team consists of a law enforcement investigator or officer, a forensic examiner and a prosecutor.

All applicants must be affiliated with an Internet Crimes Against Children Task Force (ICAC) to be considered.

Applications must be received by Monday July 26, 2010. All notifications will be made via email. Please do not hesitate to contact Gabriela Manero, Staff Attorney with NDAA's NCPCA at gmanero@ndaa.org or 703.519.1643 with any questions regarding this course.

Wednesday, May 26, 2010

THP to have more than 70 checkpoints this weekend

NASHVILLE — The Tennessee Highway Patrol will have more than 70 checkpoints over the long Memorial Day weekend.

And, according to a news release from the Department of Safety, "drivers can expect to see plenty of troopers on the road enforcing seat belt laws and looking for aggressive and impaired drivers."

Driver charged with Attempted Murder


Ronnie Dale Johnson, pictured, was arrested in Kingsport for trying to run over two law enforcement officers. That's never a good idea! Read the full story at:

http://www.timesnews.net/article.php?id=9023354

When does excessive speed become reckless driving?

Did some research today and found:

These speeders were Reckless:

State v Wilkins 654 SW2d 678 Tenn 1983-----<-------120 in 45 mph
Burgess v. State, 369 S.W.2d 731 Tenn 1963-----15 over school zone
State v Crehan 2000 Tenn. Crim. App. LEXIS 889---76 in 55 mph

These speeders were not Reckless:

State v Gose, 1996 Tenn. Crim. App. LEXIS 42--------53 in 40 mph
State v. Brown, 1998 Tenn. Crim. App. LEXIS 776-----55 in 30 mph
State v. Mitchell, 1997 Tenn. Crim. App. LEXIS 871--77 in 50 mph
State v. Miller, 2002 Tenn. Crim. App. LEXIS 137----47 in 35 mph

Tuesday, May 25, 2010

Thoughts and prayers

The eight year old daughter of State Representative Joey Hensley, a physician, was struck bey a car this morning. She was airlifted to Vanderbilt's Childrens Hospital. Please keep the young girl, her family and the medical team at Vanderbilt in your thoughts and prayers.

Monday, May 24, 2010

8th offender pleads guilty

William Duffer pled guilty in Sumner County Criminal Court today for his 8th DUI and Habitual Traffic Offender violation. He committed the crimes while on community corrections for his 7th DUI and another habitual offender violation. He recieved a sentence of 4 years with a minimum parole eligibility of 35%. His sentence will be consecutive to his prior sentence.

High Risk Offenders

In Tennessee approxiamately 23% of DUI convictions posted to driving histories are for multiple convictions. These offenders drink and drive frequently, often at high blood alcohol levels. Research indicates that a driver with a B.A.C. of .15 is 385 times more likely than a sober person to be involved in a crash.
To see more information, check our website at http://dui.tndagc.org and look in the resources folder.

Oxycontin express

A Prosecutor sent me this link to a Current television documentary depicting the availability of pain pills from pain clinics. They are given out like candy in Broward County, Florida.
They are killing people from overdosing and from impairment of driving skills.


http://current.com/groups/vanguard-the-oxycontin-express/

Fewer Seek Treatment for Alcohol Only

Tuesday May 18, 2010
Fewer people are seeking treatment for alcohol-only problems and for alcohol and drugs together, but treatment for drugs alone has increased significantly in the past 10 years. Treatment admissions for drug abuse alone has increased from 26% to 37%, while admissions for alcohol alone fell from 27% to 23%.
These figures are the result of a new study by the Substance Abuse and Mental Health Services Administration (SAMHSA).

The SAMHSA report showed that treatment admissions for the co-abuse of substances dropped from 44% to 38% between 1998 and 2008, although the concurrent abuse of both alcohol and drugs has remained a widespread problem.

A Rise in Opiate Treatment

Some of the other findings of the study included:


•A rise in opiate admissions from 16% of admissions to 20% in 2008.

•A decline in cocaine admissions from 15% in 1998 to 11% in 2008.

•An increase in marijuana admissions from 13% in 1998 to 17% in 2008.

•A rise in stimulant admissions from 4% in 1998 to 6% in 2008.

In regarding treatment for teens, admissions for treatment increased from 1998 until 2002, but then declined between 2002 and 2008. Of those teens seeking treatment, 79% of those admissions was for marijuana and about half of those were ordered by the criminal justice system.