Nashville Lawyer Blog

Across the nation the war on drugs has been taken from the streets to doctor's offices, with drug overdoses account for 16 deaths per 100,000 people living in the state. An estimated 116 million Americans are suffering from long-term battles with legitimate pain, but as more people are prescribed powerful painkillers abuse of that medication has become America's fastest-growing drug problem. Locally, a 2010 report by the Center for Disease Control and Prevention listed Tennessee as the 8th state for prescription drug overdoses. Tennessee Highway Patrol Sgt. Greg Roberts said, "at a state level we're finding it to be extremely difficult to do anything when these folks are carrying their own prescription meds."

In response to this growing concern, Governor Bill Haslam has announced a new bill proposal that would require doctors and pharmacists to consult a controlled substance database before writing or dispensing prescription medication. This would eliminate the final loophole that enables patients with pain pill addictions to "doctor shop" in order to gain access to prescriptions. Furthermore, the bill would require pharmacists to consult the database each time they fill a prescription for a controlled substance and then again at regular intervals during treatment. The law as it stands now compels practitioners to enter a patient's information and medication history into a database, however, they are allowed 40 days to enter the data. The new bill would give law enforcement more access to the state's prescription drug monitoring database and improve active monitoring of that database.

The legislature last year unanimously passed Sen. Ken Yager's bill that imposed unprecedented regulations on pain management clinics. Tennessee law defines a pain clinic as a privately owned facility where more than half the patients are prescribed pain management narcotics for durations of more than 90 days. The new regulations, which took effect Jan. 1, require pain clinics to register with the Tennessee Department of Health, outlaw cash payments for treatment, a characteristic of pill mills, and require licensed physicians to be present in the clinics at least 20 percent of the time. A new proposal by Yager would require pain clinic doctors, but not other practitioners, to enter a reason in the database for writing a prescription for a controlled substance. The families of those who have died or still fighting addiction to pain medication are hopeful the new legislation will restore order to the medical community.

Sources
Pain pill epidemic takes its toll on Tennessee

Tenn. Striving to curb deadly pain pill epidemic

TennCare Spending More on Narcotic Prescriptions

States consider requiring physicians to use drug-monitoring databases

Picture Citation

Posted By: Eston Vance Whiteside

Under Tennessee Law, it is a Class D Felony punishable by imprisonment of 2-12 years for evading arrest when such actions create a risk of death or injury to innocent bystanders or third parties. A recent Tennessee case, State v. Winters, requires the prosecution to prove this risk. In such case, the Defendant fled from Police, ran through a stop sign, yet there were no other vehicles near the intersection and no bystanders along the route. The Tennessee Court of Criminal Appeals thereby reversed the conviction for Evading Arrest with risk of death or serious bodily to innocent bystanders or third parties.

The United States Supreme Court ruled today in a unanimous decision that police must obtain a search warrant before using a GPS device to track a criminal suspect.Law enforcement have begun relying on such high tech devices to track the movements of those suspected of criminal activity.

The case that was before the United States Supreme Court involved a GPS device that had been installed by police to track a nightclub owner. The GPS device helped link him to a suburban house used to stash money and drugs. He was sentenced to life in prison before an appeals court overturned the conviction. The United States Supreme Court affirmed the decision to overturn the conviction.

The Court held that the government's installation of a GPS device, and its use to monitor the vehicle's movements, constituted a search, which required law enforcement to first obtain a search warrant. In the case before the Court, law enforcement actions by not first obtaining a search warrant violated the U.S. Constitution's Fourth Amendment's protection against unreasonable searches and seizure.

Some thirty years ago, Tennessee lawmakers first introduced laws now found in Tennessee Code Annotated 36-3-601 et seq. to protect citizens from being battered, abused, stalked, or otherwise harassed by spouses, former lovers, and even family members. The need for such laws is clear, but as with any good law there are those that will abuse the system.

It is not uncommon in Nashville for persons to attempt to manipulate the system by seeking and obtaining an order of protection against a spouse to gain an advantage in upcoming divorce proceedings. At other times, persons may rush to the courthouse first to seek an order of protection against an ex-boyfriend/girlfriend so as to beat the other party to the punch in an attempt to protect themselves against having one issued against them or even worse to protect themselves against criminal charges.

The scenarios described in the preceding paragraph are unfortunately not uncommon in Davidson County courts. Persons that have an order of protection issued against them (Respondents) are all too often viewed as suspicious at best before they ever get a chance to tell their side of the story as the Judge will have reviewed the written petition and heard the petitioner's version of the events before they ever get to speak. This is why it is so important that the respondent has the most capable attorney that is experienced with these types of cases and prepared to clear the cloud of condemnation.

If an order of protection is sustained after a hearing then the order will be a permanent record that can never be expunged. The order will remain in place for one year and can be extended. The order immediately prohibits the Respondent from possessing a firearm. One must consider that if a person is evil enough to petition for an order of protection against you without just cause one time then such person could very well decide to make a false allegation again within the next year, which would immediately send you to jail. It is imperative to fight orders of protection at the first court date.

The only way for a person to protect themselves is to go to court prepared to defend the order of protection. If after a hearing the judge dismisses the order of protection then the incident is eligible for expungement. If you have questions regarding an order of protection contact Vince Wyatt or David Raybin at 615-256-6666.

Many people find themselves with criminal charges after a routine traffic stop. If an officer initiates a traffic stop, such officer will likely investigate for criminal activity.

If you find yourself arrested after a traffic stop, the first question your criminal attorney should be asking is, why did you get pulled over. If there is no legitimate reason for the stop, there may be no basis to prosecute you.

In a recent case in Tennessee that was decided in Federal Court, United States v. Gross, the court held that a slow lane change where the person's vehicle straddled two lanes for a few seconds while changing from one lane to another without further erratic or improper driving does not give rise to a legitimate stop.

They will generally knock and say "property management" or "U.S Mail" ", but when you open the door you may find that it is really 2 or 3 police officers trying to talk their way into your living room. A routine practice of law enforcement in Nashville, Tennessee this practice is called the "knock and talk" technique.

Officers use this technique where they lack the probable cause necessary to obtain a warrant to search a residence, but when they have some suspicion that a person may possess illegal drugs or weapons in their home.

Once the resident opens the door, the police may try to pressure the resident into consenting to a search of their home or could go as far as to claim to smell an odor of an illegal drug as a basis to get a search warrant.

"Knock and talks" have been upheld as a lawful police technique in many cases; however, in State v. Blackwell, the Tennessee Court of Criminal Appeals found such technique to be unlawful where the police ignored "no trespassing" signs at the entrance to the property and continued to the person's front door to attempt a "knock and talk."

If someone knocks at your door, you don't have to answer it. If you do and you find yourself charged with a criminal offense, contact a criminal defense attorney that understands your rights.

Our office has seen a recent spike in cases where individuals have mistakenly carried firearms into airport security. It is surprisingly common for us to see cases where a client carries a self-defense item like brass knuckles, a knife, or a collapsible baton in their travel bags or hurriedly packs a rarely used bag where such item has been left in a little used compartment, but the recent cases we have seen show that someone that is used to carrying their firearm with them when they travel for business can be just as absent minded. For this reason, it is very important to always carefully check your bag, especially rarely used side compartments, before you go to the airport.

According to a recent blog by the Transportation Security Administration, from October 14 to October 20, 2011 TSA found 22 loaded firearms in carry-on baggage and 1 on a passenger's person.

Just because airport security finds a prohibited item on an individual, bad intentions are not always assumed. Law enforcement officers try to determine the person's intentitions, but in most cases will issue a criminal citation or seek an arrest warrant and leave the final decision up to the local prosecutor. If charged, it is important to hire a criminal defense attorney that can persuade the prosecutor to understand that the actions were unintentional so as to ensure that such charge does not lead to a permanent criminal conviction.

You can travel with your firearms in checked baggage, but they must first be declared to the airline. Don't hesitate to contact Vince Wyatt or David Raybin with any questions related to a charge of an unlawful weapon at the aiport at 615.256.6666.

What used to come from street dealers and drug lords now comes from a pharmacy safe. Like the rest of the U.S., Tennessee has seen a rapid increase in the number of prescription narcotics dispensed under the control of doctors that are making their way into the hands of anyone willing. Unscrupulous doctors are writing prescriptions for pills such as Oxycodone, Xanax, and Valium across the Southeast at an unimaginable rate, from establishments known as pill mills. Pill mills are usually pain clinics that take cash only and are extremely liberal and generous with the amount of medication they give out. Likewise, because they are in a bottle with their name on it there's nothing the police can do.

However, beginning January 1, 2012, Tennessee will begin to fight to mounting illegal prescription industry through the formal regulation of pain clinics. On October 1, Tennessee recognized the emergency basis of a new prescription law that will be implemented by a new set of rules. The new regulation will require all pain clinics in Tennessee to go through a two-year certification process by the Health Department, forbid dealings in cash and establish stiff civil penalties for medical professionals who work at illegal pain clinics. This emergency basis was born out of the National Office of Drug Control recently naming prescription drug abuse as the most rapid expanding and out-of-control drug problem in the U.S. Additionally, as far as the rankings for the number of dispensed prescription medications goes, Tennessee is second in the nation.

In addition, the Tennessee Bureau of Investigation recently created the Drug Diversion Task Force. Although, the task force has no full-time staff and no budget, they spend their spare time promoting awareness of prescription-drug abuse and assisting overworked local agencies. The task force focuses on all aspects of the drug problem from prescription forgeries, negligent doctors, deaths resulting from drug overdoses, pharmacy robberies and interstate drug pipelines. Between the Drug Diversion Task Force, the Metropolitan Drug Commission, and the recent and future legislative action, the illegal prescription industry will eventually crumble. This is an epidemic affecting our communities and our families and must be ended promptly.

Sources:
Law Enforcement battling to cut off pain drug pipeline

Tennessee declares war on pill mills

A year of pills: Drugs leave a trail of damage, crime

Summary findings from the News Sentinel investigation into the pill trade

Tennessee drug task force waging lonely war on Rx diversion

Posted By Eston Vance Whiteside

Recent court decisions emphasize a growing trend in the acceptance of the notion that battered partners can use force to defend themselves and even kill their abusers. This domestic violence concept, referred to as "battered woman syndrome," is based on the abusive and occasionally life threatening situations in which partners can find themselves. Such violent situations cause them to firmly believe that killing their partner is the only way to ensure their survival. This concept has been controversial however, as neither the DSM nor the ICD medical classification guides include battered woman's syndrome as a condition severe enough to excuse alleged offenders.

The latest judicial decision evidencing such a broad understanding of domestic violence was the Tennessee Board of Probation and Parole's decision to release Gaile Owens, 58. Owens received the death penalty for being an accessory to the first-degree murder of her husband, Ron Owens, in 1984. Owens contracted with a man named Sidney Porterfield to kill her husband while she and her two sons were away. Porterfield beat Ron Owens to death with a tire iron in the couple's home, and also received the death penalty. However, testimony of sexual assaults and physical abuse suffered by Gaile at the hands of her husband Ron led Tennessee Governor, Phil Bredesen, to believe Gaile could have been suffering from "battered woman syndrome." Therefore, Bredesen abandoned Gaile's sentence of death by lethal injection and arranged for her to be released on the condition she would regularly report to a parole officer in Nashville.

While the courts were originally hostile to this "defense," battered woman syndrome (BWS) has now gained widespread acceptance not only as a mitigating circumstance, but even as a complete defense in some circumstances. Christopher Slobogin, a law and psychiatry professor at Vanderbilt University, gave some explanations for this change in judicial opinion. One element of BWS is "learned helplessness," where the victim of domestic abuse believe they are powerless and don't try to remove themselves from abusive and dangerous relationships. In addition, the number of social services, such as crisis hotlines and domestic violence shelters, has grown rapidly over the last 20 years. This increase in support coupled with the learned helplessness characteristic of BWS has persuaded courts to accede BWS as a "legitimate source of mitigation of punishment."

Although BWS is not a legal defense, it can be used as a method of defending a woman accused of a crime. Likewise, BWS may legally constitute self-defense, provocation, insanity (according to the M'Naghten Rules), and diminished capacity. BWS helps a jury understand the woman's motive for murdering her abuser, which from her perspective was self-defense. David Raybin, a Nashville attorney with Hollins, Raybin, and Weissman, discussed this tactic in one of his recent articles, stating that BWS works and can be used to support duress not only in homicide cases, but in any case where the woman claims she committed a criminal act because she was forced to do so by her boyfriend/spouse. Furthermore, since the courts have found battered woman have a self-defense right when killing in a non-beating situation, many have become hopeful that the steps being adopted by the courts will help end violence against women once and for all.

Sources:
Court attitudes shift to accept use of battered woman defense

Battered Woman's Syndrome: Trial Tactics

Tennessee woman released after 25 years on death row

Posted By: Eston Vance Whiteside

If someone finds themself charged with felony drug possession in Nashville, Tennessee, chances are before his or her case ever goes to a jury trial that he or she will face amended charges with the enhancing language relating to the drug free school zone.

Years ago, Tennessee enacted the Drug Free School Zone laws aimed at enhancing the punishment for those that sell drugs near minors. No one can challenge the intent of the law ; however, there is nothing that prevents the application of such laws against virtually any criminal defendant in a city such as Nashville. The enhanced penalties increase the sentencing range by one classication, which can basically double the sentencing range and increased the applicable fines. The penalties also require mandatory jail time when charges might have otherwise allowed for the sentence to be served on probation.

Prosecutors can add the enhanced penalties when there is proof that the defendant's criminal act was within 1000 feet of a a public or private elementary school, middle school, high school; or public library, recreational center, park or child care. As one can imagine, in Nashville and other cities this 1000 feet boundary line can encompass almost an entire urban area. There is no requirement that the drug acivity occur during school hours. Many cases stem from instances where individuals are simply driving down a major street. One might wonder if this was really the intent of the legislature, but regardless of that no one can question that the laws raise the stakes on almost every felony drug case in Nashville.

If you are charged with a felony drug possession charge, you should contact a criminal defense attorney. Vince Wyatt or David Raybin may be reach at 615-256-6666.

Second Amendment advocates have been "up in arms" over a recent case that has resulted in a conflict between the constitutional supremacy of the pardon and the Tennessee lawmakers responsible for statutorily restricting the rights of felons. The case involves David Scott Blackwell, a Franklin man who received a felony drug possession in 1989 when he sold cocaine to an undercover police officer while living in Atlanta. As a result of his arrest, Blackwell would go on to serve five years in prison in addition to probation, which he would successfully complete. While incarcerated, he completed a bachelor's degree in nursing, as well as petitioning the Georgia Board of Pardons and Paroles. On August 11, 2003, Blackwell was granted a full pardon, a portion of which read "All civil and political rights, including the right to receive, possess, or transport in commerce a firearm ... are hereby restored." However, shortly after moving to Tennessee he encountered a problem.

Blackwell wanted to take his son hunting one weekend and was denied while trying to purchase a .22 rifle for his son. Two years of unsuccessful communication with the Tennessee Bureau of Investigation and the Attorney General's office led Blackwell to file a lawsuit against the state of Tennessee, Governor Phil Bredesen, and Attorney General Bob Cooper. Blackwell argues that his right to bear arms was restored upon his reception of the Georgia pardon. Also supporting Blackwell's position are various Second Amendment Advocates, who have historically refrained from voicing support for the rights of some felons to possess firearms. More notably, the Tennessee Firearms Association showed their support for Blackwell by filing a brief in the lawsuit, the first time the Association has done so in 16 years. Nashville attorney John Harris, who also serves as the volunteer executive director for the Tennessee Firearms Association, illustrated the significant issue being considered. "This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?"

Although Blackwell's position was dismissed by the Davidson County Chancery Court, the case has been appealed and is under consideration by the Tennessee Court of Appeals. In preparation on the trial, Blackwell has retained the counsel of David Raybin, a distinguished member of the Nashville-based law firm Hollins, Raybin & Weissman, P.C. "The pardon restores constitutional rights, that's what a pardon does," stressed Raybin. "Therefore, it restores his right to a firearm. That's it, in its simplest terms." Moreover, Raybin maintains that the power to pardon and reinstate a felon's rights is preserved in a state's constitution. Furthermore, when a state statute conflicts with such a right, the constitution should prevail. Blackwell's full argument and brief can be found here.

Conversely, the state insists that the challenged statutory authority, which makes it unlawful for a felon to possess a firearm, does not exempt pardoned felons whose rights have been restored. Likewise, the Tennessee Attorney General's Office stated that a correlation between guns and drugs makes it reasonable for Tennessee legislators to expect the possibility of felony drug offenders, pardoned or not, to misuse firearms in the future. Another supporting factor for the state is a similar case tried in 2002, where the Tennessee Supreme Court held that a violent felon whose rights had been restored was forbidden to possess a firearm. Attorneys for the state asserted that, "the constitutional right to possess a firearm is not absolute." A full summary of the state's argument and their brief can be found here.

However, a recent U.S. Supreme Court Decision, District of Columbia et al. v. Heller, may prove to be more essential to resolving this case. In Heller, the Court ruled that the Second Amendment declares an individual, constitutional right to firearm possession for all citizens. Raybin asserts that a felon's Second Amendment rights are included in the restoration of their civil rights. Similarly, Raybin believes the Blackwell case will mark the first use of the Heller decision in Tennessee. The Tennessee Court of Appeals ruling on Blackwell is expected sometime mid-October.

Sources:
Should pardoned felons have gun rights?

Convicted Felon Sues State Over Right To Bear Arms

U.S. Constitution: Second Amendment

District of Columbia et al. v. Heller, 554 U.S. 570 (2008)

Verified Complaint for Declaratory Relief: Blackwell Motion in Chancery Court

Brief of the State

Brief on behalf of Amicus TN Firearms Association, Inc.

Brief of David Blackwell

Posted By Eston Vance Whiteside

In a General Sessions courtroom in Sumner County this week, Lindsey Lowe, age 25, confessed to killing her two newborn sons just moments after they were born last Monday night. Lowe told investigators she delivered the twins in the bathroom of her parent's house and in an attempt to hide the pregnancy she covered each of the babies' mouths until they suffocated. She then wrapped the bodies in blankets and hid them in a clothes basket where they were later discovered by Lowe's father, who called the police. Lowe, who is now out on a $250,000 bond, left jail Tuesday evening with her family and lawyer. Moreover, Lowe has agreed to submit to a mental evaluation and treatment if necessary.

Although not representing Lowe, prominent Nashville attorney David Raybin, of Hollins, Raybin, and Weissman, P.C., provided his own unique perspective regarding the mental evaluation process and its legal applicability. Raybin explained that despite the absence of an institutional record ripe with mental problems, it is still possible for such problems to have existed in an individual for a long time. He continued, saying that pregnancy in young women is associated with considerable hormonal fluctuations, which in turn is likely to influence their thinking and behavior. These aspects coupled with the fact that Lowe was placed on suicide watch while in jail supports the contention that this case could be very psychological in nature. Moreover, the mental evaluation is a key element in the ability of Lowe to enter a plea of insanity for the murders.

A plea of insanity establishes that a person is unaware of the criminality and wrongness of their actions when committing an offense. Raybin points out, an acquittal by reason of insanity is legally permitted if it can be established that the defendant, due to mental disease, lacked the capacity to differentiate between right and wrong behavior at the time of the offense. It is up to Lowe's lawyer to prove that this lack of judgment existed due to a mental deficiency. If successful in establishing an insanity defense, Lowe would be immediately committed to a mental hospital rather than prison. Likewise, Lowe would not be released from the mental institution until the psychiatrist and the court agree that it is proper to do so. A preliminary hearing had been set for September 28, however, on Monday the judge announced his intention to reschedule the hearing in the days to come. Lowe is currently facing two counts of first-degree murder, in addition to the potential for the death penalty upon recommendation by the prosecution.

***Final Important Note***
The state of Tennessee has what is known as a "Safe Haven" law. Under this statute, a mother who within 72 hours of having a child, can bring her newborn baby to any hospital, fire or police station and drop the child off, no questions asked.

Sources:
Mental state of woman accused of killing twins in question

Bond Set For Mother Accused of Killing Infant Twins

Help sought for woman charged with killing twins

Lindsey Lowe: TN newborn twins infanticide highlights need for Safe Haven law awareness

Posted By: Eston Vance Whiteside

Tennessee Governor Bill Haslam has signed a groundbreaking legislation that went into effect July 1st, making the theft of "subscription entertainment services" a crime. Previously, the state law in Tennessee deems it illegal to steal a "service." A "service" was specified to include satellite television, mail, gas, water, telephone, and "any other activity or product considered in the ordinary course of business to be a service". With the passage of House Bill 1783, the term "service" will now include "entertainment subscription services," making it illegal to use someone else's subscription to account to access entertainment services, such as Netflix and Rhapsody.

However, the scope of the new law is unclear. It suggests that even with the consent of the owner of the account, the use of their account by another person is prohibited. The law further states that anyone who is "directly or indirectly harmed" by the theft of service has standing to report the violation to the police. Likewise, the penalties for such an offense are significant. Stealing $500 or less of entertainment would be a misdemeanor punishable by up to a year in jail and a fine of $2,500. For thefts of more than $500, the thief risks serious jail time.

Gerald McCormick, the Tennessee House Majority Leader, has said his intention behind the legislation was not the targeting of family members or small circles of friends who casually share passwords. Rather, the law is in anticipation of a continued increase in the number of subscription sites that will result in a surge of large, illegal password-selling rings that are the target of the legislation. Not only the capital of the first state to enact such a law, Nashville, "Music City," is also home to the Recording Industry Association of America (RIAA), a strong supporter and proposer of the bill. Nashville recording industry executives, artists and songwriters all agree and cite the plunge in the music industry's domestic revenue by more than half in ten years, from $15 billion to $7 billion.

However, some businesses believe the bill to be a solution in search of a problem, as subscription entertainment service providers say they haven't experienced any problems with password selling or sharing. Most entertainment service have built-in solutions to password sharing by not allowing content to be streamed to more than one location at a time for a single login. These businesses express the fear that they could be liable for customers misusing their establishment's free-Wi-Fi. Also concerned, Civil rights groups, such as the American Civil Liberties Union, worry about a trend of increased scrutiny of individual's private Internet behavior. Due to the likeliness of vagueness in the legislation, law-abiding consumers could be exposed to criminal prosecution. This suggests that additional measures could become necessary in the near future.

Sources:
House Bill 1783

Tennesseans face new Internet rules aimed at curbing piracy, bullying

Stealing "entertainment services" now a crime in Tennessee

Tennessee passes law making it a crime to use friend's login to access Web-based entertainment.

Posted By: Eston Vance Whiteside

The Tennessee Court of Criminal Appeals reversed a trial court ruling last month relating to a pat down search of a Defendant outside a bar that led to the Defendant's charge for possession of a Schedule II controlled substance. The trial court had concluded that the officer's search under the circumstances was justified since a domestic dispute was in progress and the situation was volatile and after the search was upheld the defendant was found guilty of the charge. The court of criminal appeals overturned the trial court, holding that the police officer lacked reasonable suspicion to conduct the pat down search since the officer failed to establish that the defendant was likely to be armed and dangerous.

The holding in State v. Samir Ramon Mejia makes it clear that police officers are only allowed to perform a pat down search when they have reasonable suspicion that the person may be armed and dangerous and cannot just routinely perform these types of searches. If you are charged with a criminal offense in Nashville or the Middle Tennessee area and believe you were subjected to an illegal search, you should contact a criminal defense attorney. You may reach Vince Wyatt or David Raybin at 615.256.6666.

From time to time, as a Criminal Defense Attorney I encounter individuals charged with State Misdemeanor Citations wherein the police officer failed to provide a decription of the underlying actions.

In a recent Tennessee Court of Criminal Appeals case, State v. Benjamin Word, the court found that a charging instrument that does not sufficiently describe the essential facts to apprise a defendant of the offense that they are charged to defend is invailid and does not provide a trial court with jurisidiction.

If you have questions about a criminal charge in Nashville or Middle Tennessee, don't hesitate to contact Vince Wyatt or David Raybin at 615.256.6666.