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

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

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

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

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.

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.

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

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

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

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.

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.

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.

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

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?

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