Wednesday, March 27, 2013

Repeat Offenders who kill

In Texas the repeat drunk driver who kills is charged with felony murder and faces a sentence up to life imprisonment.
In Tennessee our felony murder statute is limited to certain types of felonies. Our felony murder law states:

"A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy."

Read about the way the Texans deal with third offender felony DUI drivers at: 

Drunk driving can be murder - San Antonio Express-News

Tuesday, March 26, 2013

DUI Arrests Nashville March 25

There were four persons arrested on a cold Monday, March 25th. They were Joseph Porter, Luis Espitia, Camilla Choate and Claire Petty.

What did officers see?

One driver had crashed at an intersection and admitted to taking xanax and had marijuana and a marijuana odor in the car.
Another driver was asleep in the Post Office parking lot with the engine running. An officer had to tap the window with a flashlight to get the driver to awaken.
Another was asleep at the wheel with the engine running after running off a curb leading to an embankment.
One was stopped for swerving and driving onto a sidewalk.

Of the four one took the two breath tests and had readings of .124 and .119. Three refused testing and were charged with implied consent violations. One had six different drugs in a pocket.
Two pled guilty to the DUI at the Court appearance the next day.

Supreme Court Limits Community Care-taking

In State v Moats a three Justice majority has limited the use of community care-taking by law enforcement to consensual use. The 3-2 majority decision is available at:

The ramifications are that officers may not use their blue lights if they are checking out a situation in which a person may be in need of help or may be impaired.
Walking up to a stopped vehicle to see what is going on is not a problem. Turning on the blue lights and then walking up to see what is going on means that evidence of any crime discovered in the stopped vehicle will be suppressed!

Moats, an 8th DUI offender, was parked in an empty Bi-Lo parking lot at 2:00 a.m. There were no other vehicles in the lot and the business was closed.

An officer drove past, but noticed the pick up truck had it's lights on and the engine did not appear to be running. She drove on down the road, but circled back 5 minutes later to see the truck in the empty lot with it's lights on.

She pulled in behind the truck, turned on her blue lights and walked up to the truck to check it out. She admitted that she did not have reasonable suspicion that a crime had occurred or was ongoing. She was simply checking on any occupant, since the truck had it's lights on and engine off in an empty lot.

When she arrived at the truck, the driver window was down. She asked the driver if he was okay and he said he was. She saw a beer in the beverage container on the dash, smelled alcohol and discovered the driver was drunk. He would later have a .19 Blood Alcohol Test Result.

In a decision by Chief Justice Wade, the Court ruled that the officer seized Moats when she turned on the blue lights and community care-taking did not justify turning on the blue lights. The Court recognized the this decision like the previous Williams case in 2006 puts officers in a difficult position, but they did not think that the danger created by failing to use blue lights to illuminate a scene or even failing to check to see if someone was dead in the truck was as important as the continuation of our Tennessee Blue Light Special created by our Courts previously.

The dissent notes that we are one of only four States ever to limit community care-taking in this way.
The tone of the dissent written by Justice Clark is noticeably harsh. Read it at:

Chief Justice Wade was the Appellate Court Judge who was overturned by the Supreme Court in State v Williams in 2006. He took the opposite position on the issue then.

Wednesday, March 13, 2013

Tennessee Crashes

In 2012 there were 201,381 Total Collisions in Tennessee with
70,141 injuries and
1,030 fatalities.
There were 151,733 Total Property Damage Crashes.

The Counties with the most fatalities were:

Shelby 84
Davidson 63
Knox 48
Hamilton 36
Sullivan 28
Rutherford 27
Montgomery 23
Blount 22
Bradley 22
Sumner 20

The counties with the largest increase in fatalities were:

Sullivan 13
Bradley 13
Franklin 10
Obion 9
Cocke 8

The counties with the largest decrease in fatalities with 7 each were:

Henry, Madison, Maury and Wilson

Monday, March 11, 2013

New Case Alert State v Wenzler

In State v Wenzler, a March 6th decision from the Court of Criminal Appeals, Judge Woodall has clarified that a prior judgment for DUI is admissible, even if it is silent as to whether the defendant had an attorney or waived his right to counsel in the prior case.
 In this case a Mississippi prior was used to enhance the DUI to a third offense. The prior was silent as to whether the defendant had counsel or waived counsel. Judge Woodall in a unanimous decision said, we follow Hickman and the valid conviction is a valid conviction and not prior case law that is in conflict with Hickman v. State, 153 S.W.3d 16 (Tenn. 2004).
In Hickman the Court stated that: “The judgment’s silence as to whether the petitioner was represented by counsel or waived the right to counsel does not defeat the presumption of regularity and render the judgment void. Judge Woodall concludes that State v Whaley and it’s progeny are no longer valid as they conflict with Hickman.
 The Court States: “In summary, we reject the State’s argument that since the Mississippi judgment did not require actual incarceration, rather than just a suspended jail sentence and probation, that the rule in McClintock would not apply. However, under the definition of a “facially invalid” or “facially void” judgment set forth in Hickman, we conclude that O’Brien, Whaley, and their progeny no longer offer relief to Defendant. Furthermore, the applicable case law does not require the State to affirmatively prove that Defendant had counsel or waived counsel in Defendant’s case. Accordingly, Defendant is not entitled to relief in this appeal.”
Read the case at:

Tuesday, March 5, 2013

Brooklyn, NY - New Legislation Would Assume Hit and Run Drivers Were DUI; Reward Offered in Glauber Case --

We know a lot of legislation is reactive as opposed to proactive. In New York, legislation has now been proposed that would have a significant impact on hit an run drivers. Those who would leave others to die after hitting them are particularly nasty, inhumane people. There is nothing as frustrating as not being able to find them or finding them after all the evidence of their intoxication has disappeared. This attempt to change that in New York might be the beginning of something to change that despicable method of avoiding responsibility for deadly actions. Read about it at:

Brooklyn, NY - New Legislation Would Assume Hit and Run Drivers Were DUI; Reward Offered in Glauber Case --

Escaping on a Power Wheel

Sometimes drunken reality is stranger than fiction. In the news from Memphis, a 27 year old Arkansas woman crashed her car, got out without wearing any pants and tried to escape on a power wheel. She was not successful and may have a hard time explaining herself in Court. Read about it on the WREG Channel 3 News site at:

Saturday, March 2, 2013

2013 Fatalities

In 2013 we had more fatalities in January than in 2012, but fewer in February. The Daily Traffic Report shows a decline of 10 fatalities, so far this year. In January, 84 people died. I reviewed each of their crash reports and discovered that 10% of fatalities involved alcohol, 10% involved the drugs and 61% died when the vehicle left it's lane or the roadway. In February, 51 people died on our roadways. Crash reports have not been posted yet for all, so data will be available at a later time.