Nashville Lawyer Blog

1. What does it mean to get a Criminal Misdemeanor Citation in Davidson County, Tennessee?

The short answer is that it is basically the same thing as getting arrested, yet you were spared the humiliation of being physically arrested, put in jail, and forced to call someone to bail you out.

2. If it is basically the same as an arrest then why didn't the officer arrest me?

Tennessee Code Annotated section 40-7-118(b)(1) provides:

A peace officer who has arrests a person for the commission of a misdemeanor committed in such peace officer's presence ... shall issue a citation to such arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate [unless:]. . .
(1) The person arrested requires medical examination or medical care, or if such person is unable to care for such person's own safety;
(2) There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
(3) The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation;
(4) The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized;
(5) A reasonable likelihood exists that the arrested person will fail to appear in court;
(6) The person demands to be taken immediately before a magistrate or refuses to sign the citation;
(7) The person arrested is so intoxicated that such person could be a danger to such person or to others; or
(8) There are one (1) or more outstanding arrest warrants for the person. (emphasis added).

Essentially, this statute provides that although a person who has committed a misdemeanor in an officer's presence may be placed under arrest, the person should be placed under custodial arrest and given a citation unless one of the eight exceptions is applicable. The Tennessee Court of Criminal Appeals has previously held that under this statute, a police officer must issue a citation and may not effect a full custodial arrest of a person who has committed a misdemeanor unless one of the eight exceptions is applicable. State v. Chearis, 995 S.W.2d 641, 644 (Tenn.Crim.App.1999).

By giving an individual a citation in lieu of arrest, it also saves the police officer a considerable amount of time as the officer can simply completes the citation form and avoids having to escort the offender down to the Nashville jail and apply for an arrest warrant before a night court commissioner.

Continue reading "What you need to know about Criminal Misdemeanor Citations in Nashville, Tennessee" »

Tennessee Code Annotated 55-10-416 makes it absolutely illegal for the driver of an automobile to possess an open container of alcohol. The law does not forbid a passenger from possessing alcohol or other persons not in an automobile from possessing an open container. However, despite the fact that Tennessee law limits open container violations to drivers of automobiles, local city laws do in many cases prohibit passengers and other persons in public from possessing an open container of alcohol.

In Nashville, Local Oridinance: 7.24.040 named: Alcoholic beverages in open containers states:
A. It shall be a violation for any person, while in or on a street, alley, sidewalk, parking lot, parking garage or other area generally open to the public, except (1) enclosed structures, (2) premises owned by scientific, religious or educational institutions, or (3) premises specifically permitted or licensed for the on-premises consumption of alcoholic beverages or beer; to have in their possession beer, ale, wine or other alcoholic beverage for the purpose of consumption in a glass, aluminum, or metal container unless such container is commercially sealed.
B. Possession of beer, ale, wine or other alcoholic beverage in an open container not permitted in subsection A hereof shall be prima facie evidence of having said beverage for the purpose of consumption.

A close reading of such ordinance reveals that the law allows for one to possess alcohol in a plastic container. So don't forget to grab some plastic cups for your next Titans tailgate.

Ever wonder how people get away with selling fake Rolexes on the street or imitation designer purses? You might think that this sort of thing would be illegal and it is.

18 U.S.C. 2320 makes it illegal to traffic in counterfeit goods and is punishable by imprisonment of upto 10 years on a first offense. The fact that the seller tells you that the product is simply a replica does not make a difference. Courts have interpretted the law to punish those that traffic in counterfeit goods while acknowledging that their products are imitation the same since the presence of such goods is likely to create confusion in the marketplace

Such counterfeit goods are subject to forfeiture and destruction from anyone in possession of them so you are certainly better off saving for the real thing.

Under Tennessee Law, all persons charged with criminal offenses are entitled to a reasonable bail amount with the exception of those charged with murder, in which Tennessee law does not require that bail be set if the evidence is strong that the defendant commmited the offense.

The factors the court should consider when setting a bail are found in Tennessee Code Annotated 40-11-115 and include:

1. The defendant's length of residence in the community
2. The defendant's employment status and history and financial condition
3. The defendant's family ties and relationships

Continue reading "Factors Courts in Tennessee Consider When Setting a Bail Amount or Bond" »

One of the first calls that an attorney may receive about a prospective client may come from a friend or family member, who is calling on behalf their loved one, who is behind bars. Typically the first thing that person needs to know is what the bail amount is so as to know if he or she can afford to post such bail or go through a bondsman.

If the bail amount is very affordable then such individual may choose to post the full amount of bail rather than go through a bondsman since at the conclusion of such case in Nashville, Tennessee (plea disposition, jury trial, etc.) as long as the criminal defendant makes it to each of his or her court dates then the amount of bail is returned to the payor after payment of court costs and fees.

However, most choose to go through the assistance of a bondsman. Bondsmen charge 10% of the bail amount to act as a surety to the court of the individual's presence at trial. The 10% paid to a bondsmen is never returned, but is a small fraction of what one would have to tie up with the court.

In Nashville, if the bail is set in excess of $75,000 than a source hearing for the court to legitimate the source of such funds is required regardless of whether the person is posting the full bail amount or attempting to post the money through a bondsman. In such cases, loved ones cannot immediately post a bond to the court, but should immediately contact an attorney to represent them on the source hearing.

The United States Supreme Court in Berghuis v. Thompkins took a significant retreat from the privileges against self incrimination long afforded to individuals subjected to custodial interrogation through the Miranda decision of the 1960s. In Thompkins, the Defendant was silent for almost 3 hours before making an inculpatory statement. During the interrogation, the defendant also refused to sign a written waiver of his Miranda rights. The Miranda decision had long recognized a defendant's right to remain silent and it further required the State to carry a heavy burden to prove that a defendant knowingly waived this right and other constitutional rights if the defendant ultimately made a statement since "waiver cannot be presumed by the fact that the defendant eventually made a statement." The court's decision in Thompkins basically shifts the burden from the State to prove waiver of Miranda rights to the defendant to verbally announce that he wishes to invoke his right to remain silent. David Raybin was quoted in a recent article discussing this case in yesterday's Tennessean
click here to read Tennessean Story

Under Tennessee law, a prior DUI conviction raises the standard minimum sentence of 48 hours in jail to 45 days in jail on a new DUI charge. Two prior convictions means a DUI defendant is facing a minimum sentence to 120 days and the minimum sentence increases with subsequent convictions.

The Tennessee Court of Criminal Appeals in Tennessee v. Albright, recently held that a prior conviction in which the judgment did not contain the trial judge's signature was not adequate to establish a prior conviction, finding such judgment to be void, and thus ordered that the defendant's sentence be reduced.

Tennessee Court of Criminal Appeals Opinion

A criminal defendant should contact an attorney experienced in DUI law that is aware of all possible defenses to their case.

Vince Wyatt had an article that was recently featured in the Tennessee Bar Journal relating to the consequences of a conviction. In such article, he discussed how individuals can be prevented from practicing many occupations due to a felony or even a misdemenaor conviction.

Tennessee law outright prohibits an individual previously convicted of a felony from ever working in many occupations. In other instances, Tennessee requires individuals to be licensed to practice certain occupations, and when a license is required in most cases, a felony conviction and even some misdemeanors may serve as a basis to deny an application for such a license or establish grounds to revoke the license of an individual currently licensed. The occupations that either preclude employment for some convictions or have licensing laws that may allow the state to deny employment for criminal convictions in certain occupations include:

•Emergency 911 call takers and dispatchers,
•Sheriff office employees,
•Police officers or special deputies,
•Employment at jails or correctional institutions,
•Private security business operator,9 or private security officer,

Continue reading "In Tennesseee, A Conviction Today May Cost You a Job Tomorrow" »

David Raybin represents Dr. Jeannie Beauchamp, a Clarksville, Tennessee area dentist, who was recently charged for illegal possession of prescription painkillers after being stopped by Nashville Airport Police en route to Haiti to provide medical attention.

The Leaf Chronicle's Article detailing this case

David Raybin recently filed a lawsuit against the state of Tennessee, the Governor of Tennessee, and the Attorney General of Tennessee after his client was denied a right to purchase a firearm even after receiving a full pardon from his conviction in the state of Georgia, which had restored his clients full rights of citizenship.

News Channel 5 Story

Blackwell v Bredesen FILE STAMP copy.pdf

Tennessee Code Annotated 40-28-105 establishes the procedures relating to Parole Hearings in Tennessee. Pursuant to such statute, parole hearings are held in jails, department of correction facilities, and other locations within the state where eligible offenders come under the review of the Board of Probation and Parole. Parole Members preside over hearings or may designate hearing officers to conduct such hearings. At such hearings, parole board members or designated hearing officers take testimony and make proposed findings of fact and recommendations to the board regarding a grant, denial, revocation or rescission of parole. The findings and recommendations are reviewed by parole board members who adopt, modify, or reject the recommendations. The grant of parole requires the concurrence of 3 members in many cases, but in the most serious offenses under 40-28-105(d)(4), four votes are required.

Continue reading "Tennessee Parole Hearings" »

David Raybin, notes in this Tennessean article, that the new immigration ruling by the United States Supreme Court is "the immigrant's Miranda rule." The Court ruled that changes to immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear the duty to give correct advice is equally clear. Many States -but certainly not all - require judges to provide a general advisement to a defendant before accepting a guilty plea, warning the defendant that if he or she is a noncitizen the conviction may result in adverse immigration consequences. Tennessee does not require this but probably will in time. This does not alter the lawyer's responsibility to give appropriate advice.

Link to Tennessean article quoting David Raybin on new immigration ruling

In Davidson County (Nashville, Tennessee), the General Sessions and Criminal Courts require a bond source hearing pursuant to Tennessee Code Annotated 39-11-715 before any bond can be posted of $75,000 or more or before any person can post a cash bond of $10,000 or more.

The courts have the authority to require such source hearings to ensure that proceeds that are directly or indirectly derived from a criminal offense are not used to secure a bond or pay a premium bond. The burden of proof is on the party seeking to post the bond to get the approval of the court.

If you need an assistance with obtaining a source hearing or any other criminal matter, feel free to call Vince Wyatt or David Raybin at (615) 256-6666.

In a recent Tennessee Court of Criminal Appeals decision in State v. Teddy Ray Mitchell, the court found that the Defendant's actions by arguing with police officers did not violate the law against disorderly conduct. In this case, the Defendant attended a rally at the County Courthouse. He was confronted by officers initially for parking in an area that had been designated as a "no parking zone" due to the rally and then he was later confronted for attempting to bring an American flag on a standard flagpole to the rally as flagpoles had been prohibited due to concerns that they could be used as weapons. The police officers testified at the trial that when they confronted the Defendant that he became irate and belligerent and used the flagpole against one of the officers when the officers arrested him. After a jury trial, Mr. Mitchell was acquitted of the resisting arrest charges but was found guilty of disorderly conduct and sentenced to thirty days in jail. The Tennessee Court of Criminal Appeals reversed the decision holding that the proof did not demonstrate that the Defendant acted in a threatening manner.

If you are charged with disorderly conduct or any criminal offense, do not hesitate to contact Vince Wyatt or David Raybin at 615.256.6666.

KoulisMotion Letter.pdf

David Raybin recently filed an appeal with the Tennessee Court of Criminal Appeals seeking to vacate the conviction of his client, Dr. Christ Koulis, a former plastic surgeon that was convicted of criminally negligent homicide in Franklin, Tennessee (Williamson County) in a case that drew significant media attention.

Mr. Raybin had originally filed an appeal challenging both the sufficiency of the evidence and raising a double jeopardy claim. Dr. Koulis died this past week. Mr. Raybin's recent appeal seeks to vacate Dr. Koulis' conviction by reason of death. In Mr. Raybin's most recent filing he cites the majority rule of law which requires that the appeal be abated and the conviction be vacated.

Below are links to a number of news sources reporting on this case:

Nashville City Paper Story

WKRN Channel 2 Story

Nashville Newschannel 5 Story

Williamson Herald Story