Thursday, June 7, 2012

The Civil Nature of Implied Consent Violations

The most recent cases holding that implied consent violations are civil are:


State v MacKinnon 2011 Tenn Crim App Lexis 228 and
In MacKinnon the implied consent "conviciton" was reversed, because a jury decided the case instead of the Judge. Juries in Criminal cases decide whether a crime was committed, not a civil violation.

State v Prater, 2010 Tenn Crim App Lexis 967

In Prater the Court stated, Tenn. Code Ann. § 55-10-406 with certain exceptions, violating the implied consent statute is not a crime but a civil wrong: “If the court finds that the driver violated [the provisions of the implied consent statute], . . . the driver shall not be considered as having committed a criminal offense; however, the court shall revoke the license of such driver . . . .” Tenn. Code Ann. § 55-10-406(4)(A).

Crash Reconstruction class

Ray the DA, Ray Larsen of Lexington, Ky, posted a nice 4 minute video on his website concerning our vehicular homicide training. See it on his facebook page at: Ray the D.A.

He sent interns over to watch the mock crash and one is interviewed about the training stations and the crash. Thanks Ray.

Tuesday, June 5, 2012

Don't Fall for this tactic!

Recently Attorney Terry McNabb asked for a Bench Trial in Sessions Court. A Prosecutor agreed. After the first witness was called and testified for a moment, attorney McNabb moved in limine to prohibit the State from discussing the blood test result in the case, because no witness was present from the lab. The Court agreed and suppressed the .13 Blood Alcohol Level.

Prosecutors must have a written stipulation from an attorney concerning the BAC or refuse the request for a Bench Trial. The State cannot bring people from the lab to General Sessions Court. They are more than busy enough testing blood and attending the Criminal Court Trials.

Don't fall for the tactic that was used in this case.

Downloading the GARMON

Just learned at our Lethal Weapon seminar that 24 hours of locations can be downloaded from a GARMON GPS! How much information could be gathered if an officer in a DUI or vehicular homicide case got a search warrant and learned where the drunk had been in the last 24 hours. It may even be helpful to show where a drunken or stoned juvenile got his drinks or dope. Interesting!

Prosecutors study road marks

At this training prosecutors have to get on their hands and knees and learn by doing. Here they examine road marks, scuffs and skids after the staged crash.

Vehicular homicide training

Today we crashed cars to study with Kentucky Prosecutors in Lexington. video