Miranda Warnings

Last Saturday , I was getting ready to go out to celebrate a friend's birthday. While I was waiting to leave , my daughter had on the show "Cops ". I had never seen the show , so I watched a little bit. The person arrested did not follow any decent attorney's advice "Keep Your Mouth Shut". The guy was picked on on a drivers license charge where he didn't show up to court. A search ensued . Dope was found. The poor guy admitted to selling weed. So it went from a misdemeanor charge to a felony charge. If he would have exercised his right to remain silent, he might have avoided the charges. Remember to always assert your right to remain silent. You can't talk your way out of it.For more information visit my website at www.Mckinneylawfirm.com

Righting Wrongs

The great criminal attorney Clarence Darrow once said " As long as the world shall last there will be wrongs , and if no man objected and no man rebelled , those wrongs would last forever." My task from this day forward is to try to right the wrongs committed on our citizens.

Child Sex Crimes

Last Friday , I was in court in Marion County. Jasper is the county seat. I really enjoy cases outside of Nashville. I put some jazz on the CD and really think about the case while driving. The issue on Friday was my motion to sever counts. In child sex cases , the District Attorney usually tries tho add all the charges in one indictment. The theory is where there is smoke there is fire. Rule 14 of the Tennessee rules of criminal procedure sets forth the parameters of when charges can be separated. In most cases , it is critical to file a motion to sever in child sex cases.

What it Takes to be a Great Criminal Lawyer ?

This is the first of a series of posts on what it takes to be a great criminal defense attorney. First , you must have a thorough knowledge of all the traffic laws in Tennessee. I was in Ashland City , Tn. today on a drug case . The probable cause was a lack of a light on the license plate. Once the cop knew where I was going to attack the illegal traffic stop. The officer changed his mind on the reason for the traffic stop to that the license plate was not visible. Now we have a officer who took out the warrant for one reason now he is changing his reason for the illegal traffic stop. Where do you think this case is heading ? So, you have to know the traffic laws backwards and forwards to contest the traffic stop. Better yet carry a copy of the traffic laws to court with you in case they change their mind.

Withholding Evidence in a Criminal Case

Tennessee has certain rules that govern discovery in a criminal case. Rule 16 of The Tennessee Rules of Criminal Procedure limits what the District Attorney has to provide a criminal defense attorney. In a civil case , open discovery is allowed , but when your freedom is at stake it is a different matter. A criminal case from Memphis is currently before the United States Supreme Court on withholding evidence. Justice Souter told The State of Tennessee's attorney " I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational". It looks like the The Supreme Court is upset about the withholding of evidence , but if the rules of criminal procedure aren't changed it won't make a difference. Why can't we have full discovery in a criminal case ?

Do You Have A Preliminary Hearing Or Not

I was in Gallatin , Tn today for a hearing on an aggravated robbery case. While I was waiting for the case to be called , I was in a discussion with the Assistant District Attorney . He wanted to be to bind the case over without a hearing. I firmly believe in never waiving the preliminary hearing unless your client gets something in exchange.Today , I learned the eyewitness drank one liter of vodka. The consent search was obtained by the threat of having the homeowners children being placed in Tennessee Department of Children's Services custody. Would I have gotten this information if I waived the hearing. I know some lawyers waive the hearing because they don't want the victims testimony recorded , but you have too much to gain by waiving the hearing. If your attorney asks you to bind your case over to the grand jury , ask him or her why. I learned enough to save my client from prison.

Gun Charges In Nashville , Tennessee

I am a huge Tennessee Titans fan. It's sweet to be going back to the playoffs. Most NFL fans have been following the story out of New York about Plaxico Burress and his weapons charge. As a criminal attorney, there seems to be a whole lot going on that the media hasn't reported. In Tennessee , we have several criminal laws dealing with possession of handguns. It is a criminal offense to possess a firearm where beer or alcohol is consumed. It is also a felony charge to a convicted felon in possession of a firearm. It is also a federal offense as well. I have read that Plaxico stands to lose 20 million dollars if convicted of this gun charge. If your convicted , you just lose your freedom.

Can You Expunge Your Criminal Record

Under Tennessee Law , you can expunge your criminal record under certain circumstances. If your has been dismissed , retired , or you were placed on a pre-trial or judicial diversion, you can have your record expunged. A plea of guilty to a charge no matter what the punishment makes you ineligible to have your record expunged. Your plea can effect you forever. Our office does help people to clear their record if possible. E-mail me At Rob@RobMckinneylaw.com for details.

Why You Hire A Good DUI Lawyer

There are a lot of lawyers out there who hold themselves out as DUI lawyers. Some are even rated as the best by local news media without any real experience except by gathering votes on line. Baloney. You must seek out a lawyer who knows the ins and outs of DUI law. This week I was reminded of this fact when I was hired by a client to represent her in a DUI case. After several lawyers told her there was nothing she could do but plead guilty They charged her $500.00 to walk her to the courthouse. She decided to meet with me instead. We meet and went over her case. A breath test of .144 was a little problem , but she did not want to plead guilty. After an investigation, the case was plea bargained on a non-dui charge , kept her driver's license and avoided jail. I charged her more , but do you think she wished she would have paid the $500.00 bucks and had a DUI conviction. Disclaimer , all cases are different and no guarantees , but e-mail me At Rob@RobMckinneylaw.com for a free evaluation. You can also call my paralegal Julie at 615-259-9009 to make an appointment.

Murder Trial in Gallatin

In October of this year, I tried a first degree murder trial in Gallatin, Tn. After several days of trial , the jury agreed with our theory of the case and returned a verdict of reckless homicide. Our defense was based on the concept that my client committed the murder , but it was not a premeditated murder. We are now preparing for the sentencing hearing. Many people are not aware of what is a sentencing hearing. A sentencing hearing is where the judge determines the punishment of the offense. Basically, the judge determines the manner and length of the sentence. For example , Reckless homicide carries a range of punishment of 2-4 years. The court could also decide to grant probation or order one to serve their sentence in jail or prison.

Driving Under The Influence of Marijuana

Remember, you can also be charged with driving a car under the influence of drugs. I was reading an article recently and i thought I would share it with you. In 1993, the United States Department of Transportation commissioned a study on marijuana and actual driving performance. Test subjects were dosed on alcohol,marijuana, or a placebo . Later , they drove cars in various controlled on-road traffic situations.The bottom line of the research found that marijuana to have a performance impairment equivalent to a alcohol BAC level between .04 and .08 only in lane maintenance performance measures.

Drug Interdiction In Tennessee

The local police in Middle Tennessee have found a new way to raise money in these hard economic times. Stop citizens on the highways and confiscate their money. Most local police agencies have started drug interdiction units here in Middle Tennessee. The goal is to look for people that are using the interstate on I-65 , I-40 , and I-24 and look for a traffic violation. The police stop your car and then want to search your car. A couple of the the hotspots that police are looking for you is ; Murfreesboro, Tn , on I-40 including the Dickson , Fairview, Centerville exits and the Nashville Davidson County line. Remember you have a right to refuse a search.

Should You Take The Breath or Blood Test ?

Probably not. One of the questions I am asked all the time is whether one should take the breath or blood test. You have a right not to give evidence against yourself. Why give up that right. Tennessee has a "Per Se" DUI law. If your blood alcohol level exceeds .08% BAC, you are guilty of DUI. However, once you refuse the breath or blood test you can be charged with the implied consent law of refusing the breath test. The bottom line is if you consent to a test ask for a independent test. More on the implied consent this week.

DUI Trials

_ Today, I tried a DUI case in Ashland City,Tn. The verdict was not guilty. The District Attorney in this judicial district where this case was tried has a policy of not plea bargaining DUI cases. The counties in this district include Dickson, Cheatam, Houston,Stewart,and Humphreys counties. If you are arrested for DUI in these counties you have two choices, plead guilty or go to trial. You can win your DUI case. They are not hopeless. However, you need to consult with an a lawyer that tries DUI cases. One that concentrates on DUI cases. Call our office for a consultation at 615-259-9009 or toll free 1-866-502-0009 for help.

Why Waive A Preliminary Hearing

Yesterday, I posted about the jail docket here in Nashville. I have never waived a preliminary hearing in a case with one exception. Once , I waived a preliminary hearing in a aggravated statutory rape charge as to not inflame the family. I was afraid if the person's family heard some of the evidence they might push for jail time.Fortunately, the strategy worked. I read about a case in Murfreesboro,Tn in which the lawyer waived a hearing in a serious case. It appears from the article that nothing was gained by waiving the hearing. Criminal defense rule number one never waive the preliminary hearing unless you get something ion return. Test the state's case early and often.

Nashville's Jail Docket

If someone is arrested in Nashville, Tennessee , a person accused of a crime is entitled to a bond with the exception of a capital murder charge. Suppose someone cannot make a bond. What happens next? Shortly after your arrest , you are placed on a review docket. The review docket is a chance to settle some types of misdemeanor cases. Most of the time the case is placed on the "jail docket". Felonies and misdemeanors alike are placed on the jail docket. Several things can happen to one's case.First a preliminary hearing might be held. The Rules of Criminal Procedure requires a hearing to be held within 10 days from the date of arrest. Secondly, the case could be settled.More on that tomorrow. Finally, you can waive your right to a hearing in exchange for a reduction in your bail bond. I will write more about this topic this week. remember , you can make a post and I will try to answer your questions.

DUI Charges and Diabetes

Diabetics may have problems passing a breath alcohol test. Diabetes produces an effect called ketoacidosis which causes the production of acetone. Acetone can cause a breath test machine to give false positives of alcohol consumption or if you have had a drink increase your level of intoxication. The National Highway Traffic Safety Administration has published a report that that discusses acetone interference on breath testing machines. Visit my main website WWW.Mckinneylawfirm.com and leave a post and we will send you a copy.

Videos in DUI Cases

Be aware your DUI/DWI arrest may be videoed. In Nashville, Tennessee only the DUI enforcement officers have videos in their police cars. However, most law enforcement officers outside Davidson County have Video cameras installed in the cars. In Williamson County, Brentwood, Franklin and Williamson County Sheriff's Department all have video cameras. In Rutherford County, Murfreesboro City , Smyrna , LaVergne, and Rutherford County Sheriff's department all have cameras in their cars. The point is that the videos are excellent proof of your sobriety and evidence of the field sobriety tests. Your defense starts with the videos.

Your Right To Testify Or To Remain Silent

The decision to testify in your defense is one of the toughest calls for a client or a criminal defense attorney to make. That choice is illustrated by a murder case that happened in Shelbyville,Tennessee. Ashley Cook did not testify in her first murder trial and the jury could not decide the case which resulted in a hung verdict. In the retrial, Ms Cook testified and the jury returned a guilty verdict after a short deliberation. The jury was impaneled in Lynchburg,Tennessee due to pretrial publicity. It appears Ms. Cook was caught in a lie during redirect examination. The teaching point is Twofold. First , always tell the truth. Second, think long and hard about the risks and rewards of testifying. You have a right not to testify and the jury can not put any weight in your decision not to testify.

DUI Sobriety Checkpoints

Earlier this week, I was discussing DUI sobriety checkpoints.Sobriety checkpoints are permissible under Tennessee's DUI laws, however they must follow certain guidelines. St v Downey was the first Tennessee Supreme Court case that discussed sobriety checkpoints and DUI roadblocks. In State v Hicks, the Tennessee Supreme Court confirmed that the standards adopted in Downey apply to constitutional challenges to all types of non-emergency roadblocks or check points under the Tennessee Constitution.

School Zone Drug Cases

Tennessee has enacted a law that calls for increased punishment for possession of drugs within a 1000 feet of a school zone.It also includes other type locations such as day cares. The main point is that it increase the punishment. A school zone drug charge conviction increases the drug offense one class. Also, it requires that the sentence be serves at 100%. For example, a person charged with possession of one gram of cocaine within a 1000 feet of a school zone is facing 15 to 25 years in prison and must serve 100 % of that time. The District Attorney's office in Nashville investigates most major drug busts to determine if they qualify for the school zone enhancement.

DUI Roadblocks

Yesterday, I met with someone who was stopped in a DUI sobriety checkpoint or roadblock in Mt Juliet , Tennessee. So, I thought I would discuss DUI roadblocks today. The Tennessee Supreme Court has issued two key decisions in DUI roadblock cases. The cases are St. v Downey and St. v Hicks. The Court has set forth a standard for the roadblocks.They must be established accordance with predetermined operational guidelines and supervisory authority that minimize the risks of arbitrary intrusion on individuals and limit the discretion of police at the scene. I have to go to court so I will continue tomorrow. Visit my website www.Mckinneylawfirm.com for more information.

Should I Take the Breath Test

Most of my friends know I am a DUI attorney. When I go to a party, I am always asked whether they should take the breath test. Tennessee has an implied consent law that provides that if an police officer has reasonable grounds to believe you are under the influence of alcohol or and intoxicant they can request you submit to a chemical test to determine your blood alcohol level. The law is found at T.C.A. 55-10-406. So, what should I do ? If you have a just a few drinks, take the test. If you have no idea how many drinks you have had, you have a right to refuse the test. However ,there will be repercussions of that refusal. If you do submit to a test, always ask for an independent sample.

The Citation Docket

In Nashville , The General Sessions Courts have established a docket for misdemeanor citations. Basically, the police issue a criminal citation for charges like assault, DUI, simple possession of marijuana, and driving offenses. You show up to court and can settle your case on the spot. The judges refer to the docket as the one stop docket. Do not be fooled . A plea of guilty can have an impact on the rest of your life. A lot of these cases have defenses that you may use to avoid a conviction. Only you can protect your rights in court.sometimes it might be a idea to consult with an attorney before you enter a guilty plea.

Dui First Aid Kit

I have recently produced a DUI/DWI first aid kit. The dvd covers several basic areas of DUI/DWI law which will help you survive the first few days of your DUI arrest. The dvd is free and you can email me at Rob@Robmckinneylaw.com , call 615-259-9009 or visit my web site WWW.McKinneylawfirm.com. I will send you a copy as soon as possible.

Field Sobriety Tests

Yesterday, I started a series of posts from a legal seminar I organized. Tony Corrato from Atlanta spoke on Field sobriety testing. Tony is one of the experts that I have used in cases here in Nashville and surrounding counties. In fact , his forensic review of a video tape lead to a reduced charge of a DUI in Franklin, Tennessee which is rare.There are three main parts the field sobriety tests: HGN,Walk and Turn, and the One Leg Stand. The HGN test is the horizontal gaze and nystagmus test. I want discuss it here in this post because it is not admissible at this time due to current case law. The walk and turn test and the one leg stand are the two major tests used by police in Tennessee. The bottom line is that if the tests are not administrated correctly the findings may not be reliable. More on the field tests in future posts.

Dui Defense

In the spring of this year, I was asked to organize a continuing legal education seminar by the Tennessee Association of Criminal Defense Lawyers. The seminar was held last week over two days. For the next couple pf posts, I will discuss the issues addressed in the seminar. the seminar devoted one topic to vehicular homicide and accident reconstruction issues. A vehicular homicide charge is where a death occurs in an traffic accident and intoxication was the proximate cause of the accidental death. There are other circumstances where one may be charged with vehicular homicide. A vehicular homicide can be charged as an aggravated homicide based on various other factors. A though investigation by an accident reconstructionist is required in most of these cases.

Simple Possession of Maijuana and Juvenile Law

If your son or daughter is charged in Juvenile Court with simple possession of marijuana, you might think it is no big deal. Wrong. An adjudication of a simple possession charge will have your child's Tennessee drivers license suspended.Another conviction increases the length of the suspension. An alternative plea can prevent your child from losing their drivers license. The lesson is fight the charges that can impact your life.

Nashville Criminal Defense

How do you avoid a DUI/DWI conviction ? The first step most seasoned DUI attorneys investigate is the traffic stop. If the traffic stop was illegal , the evidence obtained at the scene will be supressed. So, the breath test or blood test does not come into to evidence. Fighting the traffice stop is your first step in defending your DUI case.