Friday, September 28, 2012

Drugged Driving Homicide case

Take 3 minutes to hear the story of the Case of the Week from the Lexington, Kentucky prosecutors on the Ray the DA website:

Office of the Fayette Commonwealth's Attorney » Case Of The Week: Drugged Driving Results In Homicide Charge And Prison Sentence

Witness Order

Clois Dean Asbury was convicted of DUI 7th offense, leaving the scene of a crash, and an implied consent violation. The case has some instruction for us as prosecutors. In this case the prosecuting officer was called as the fourth witness. As the prosecuting officer, he was not subject to the sequestration rule. The Court found this did not have a prejudicial effect, but the Attorney General conceded that failure to call the witness first was an error, although a harmless one. The Court in this case agrees.
The simple lesson is, if you choose to use the prosecuting witness subsequent to other witnesses, keep him/her out of the room, until he or she testifies. That should avoid the problem.
Read the case at:

New case: Traffic Stop

Morristown officer, Brad Rice, spotted a driver come to an abrupt stop at a stop light. The light had been red for a while. He decided to watch the car. It pulled into a parking lot and stayed for a minute, then pulled out at an excessive speed. The officer caught up and saw that the car was stopped in a driveway of a locked plant.

After officer Rice mad contact with the driver he discovered he was impaired. The defendant lost a motion to suppress, pled guilty and appealed. The conviction was affirmed in State v Barlow. Read the case at:

Another Defense Trick implodes

In a case issued Thursday, September 27th, the Court of Criminal Appeals removed a trick we have been dealing with for a couple years across the State.
Many prosecutors have dealt with this situation. A driver is arrested. The case lingers for a while in Sessions Court. The defendant waives his right to a preliminary and binds his case over to the grand jury. It takes a while for the case to come out of the Grand Jury. An Indictment is issued and it is more that a year from the date of the arrest. 
Defense attorneys then file a motion to dismiss the case, because the prosecution has not commenced within the one year statute of limitations.
Most Judges deny those motions, recognizing that the case was commenced in Sessions Court by the issuance of the warrant.
In State v Joyner, the CCA reverses the decision of a Trial Court, which bought the argument. Judge Wedemyer for the Court wrote:

"The trial court dismissed the charges finding that the State had not commenced prosecution before the expiration of the statute of limitations. After a thorough review of the record and relevant authorities, we conclude that the trial court improperly dismissed the charges because the Defendant waived his preliminary hearing and agreed to allow the case to be bound over to the grand jury before
the expiration of the statute of limitations."

Read the case at:

Thursday, September 27, 2012

New Case from Lincoln County

In Lincoln County Myron Webb committed his 6th DUI offenses while on bond for his 5th offense. After he pled guilty a sentencing hearing resulted in consecutive four-year sentences. During the sentencing hearing he asked to be sent to treatment, so that he could become a law-abiding citizen. During cross-examination by ADA Holly Eubanks, he admitted absconding from a halfway house and admitted he had made the promise to follow the law in a prior sentencing hearing. Since the defendant committed a felony while on bond for another felony, consecutive sentences were mandatory. The sentence was affirmed.

Monday, September 24, 2012

Motorcycles to the rescue

200 motorcyclists recently raised $530,000 for St. Jude Children's Hospital. They rode from Peoria to Memphis. The good people of Dyersburg, Tennessee, fed the riders and hosted them for a celebration.
Read about this good news and great dedication to a worthy cause at:
Dyersburg State Gazette: St. Jude Rides - Peoria - Memphis riders enter Dyersburg

Tuesday, September 18, 2012

3 more convictions affirmed

The Court of Criminal Appeals has issued 3 more opinions affirming DUI and Vehicular Assault convictions.
The first is State v Pollock can be seen at:

Pollock was convicted of vehicular assault. He tried to pass a car in a no passing zone and ran head on into a car severely injuring two people. Pollock had Soma, Methadone, Valium, and Xanax and Meprobamate in his blood. He admitted taking his prescribed dose of methadone.
This case includes an excellent analysis of the testimony of Dr. Tonya Horton, TBI special agent and forensic scientist and is highly recommended for all prosecutors dealing with drugged driving cases. 
Trooper Avery and Investigator Moore also did an outstanding job as did ADA Kelvin McAlpin in this case from Obion County.

The next case is a DUI from Hardin County, State v Hartnest. It can be found at:

In this case the officer suffered a very bad day on the witness stand due to an incomplete and sketchy report. Despite his mediocre report there was enough evidence to sustain the conviciton. The defendant had a blood alcohol level of .13. He was stopped in part due to having a can of been on his back bumper as her drove slowly in Savanah. Trial Judge Creed McGinley commented that if you drive down the road with a beer on the bumper, you will be stopped ten out of ten times. My guess is that this case would have never resulted in a trial, but for the report.

The third new case is State v Barham. It is at:

Mr. Barham ran into a work van in a person's driveway. Jerry Morris in Jackson, Tennessee, had been sleeping when he heard the loud bang. He immediately went outside and found the defendant climbing out of the passenger side window. The defendant left and returned in the same clothes about five minutes later. The defendant used the old SODDI defense (Some other dude did it), but wasn't able to convince a single juror that Mr. Morris was wrong about what he saw.

Friday, September 14, 2012

New Case from the CCA

Another motion to suppress a stop has been denied by a Trial Judge and affirmed by the Appellate Court based on a violation of TCA 55-8-115 and crossing lane lines. Judge Richard Vance in Sevier County found that crossing lane lines in violation of 55-8-115 and 55-8-143 gave the officer probable cause to stop the driver.
The defense attempted to use the Binette decision to attack reasonable suspicion to stop for DUI. When the Binnette decision was issued in 2000, the law did not include the legislation that becam 55-8-115 and 55-8-143.
Read the case of State v McGee at:

Rapper tweets about drunk driving, crashes and dies

This is pretty sad. A 21 year old aspiring rapper sent out a tweet about drinking and driving and minutes later died in a crash. It appears he was a passenger. Three other young men in the car died with him after the driver ran a red light  and crashed into a wall.
Read about it at:

Wednesday, September 12, 2012

Labor Day No Refusal Weekend

In 16 counties during the Labor Day weekend 74 persons were arrested for DUI. One search warrant was needed for a driver, who attempted to refuse testing. The other 73 consented to tests, perhaps due to their knowledge that refusal would have led to a search warrant and a test without consent.
Read the Department of Safety report at:
Department of Safety & Homeland Security Announces Results of Labor Day "No Refusal" DUI Enforcement Effort | Newsroom

Tuesday, September 11, 2012

New DUI Decision

Lexington, Tn., officer Brad Wilson responded when a citizen called and informed the dispatcher that a car was being driven recklessly. The officer arrived and the citizen pulled out of the way, so the officer could see the suspect car for himself. After pulling away from a stop sign the officer noticed the car was going faster than he was, which was 42 mph in a 30 mph zone. Officer Wilson pulled the car over and found an impaired driver.
The defendant file a motion to suppress and lost and was found guilty by a jury at trial. His appeal focused solely on the motion to suppress.
The defendant, Charles White Sr., either had plenty of money or a pretty good buddy. He called a land surveyor to testify for him. The surveyor watched a video, looked at the distance between telephone poles in the video, measured the slope of the road and came up with an opinion that the average speed of the White vehicle was 30 mph.
That was an interesting use of a land surveyor. What was not indicated was that the starting speed (starting from a dead stop or 0 mph) and stopping speed as the driver slowed to a complete stop would be substantially less than the fastest speed. The average could have easily included the 42+ mph the officer observed.
The Court found that the officer was credible and simply told what he saw. When he, officer Wilson, was going 42 mph, White was still pulling away from him. The Court affirmed the decision of the jury.
Read the case at: