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March 2015 Archives

Prolonged Detention to Await Backup Was Reasonable

A detention by a police officer accomplished by a show of authority (as opposed to simply a consensual encounter) requires only reasonable suspicion that the detained person has committed or is about to commit a crime. However, the duration of the detention should also be no more than reasonably necessary for its purpose. The Tennessee Supreme Court, in the recent case of State v. Montgomery, M2013-01149-SC-R11-CD (Tenn. 3-27-2015), reversing a previous ruling by the trial court and the Court of Criminal Appeals, has determined that a ten to fifteen wait for backup in a DUI investigation was not unreasonable.

Prolonged Detention to Await Backup Was Reasonable

A detention by a police officer accomplished by a show of authority (as opposed to simply a consensual encounter) requires only reasonable suspicion that the detained person has committed or is about to commit a crime. However, the duration of the detention should also be no more than reasonably necessary for its purpose. The Tennessee Supreme Court, in the recent case of State v. Montgomery, M2013-01149-SC-R11-CD (Tenn. 3-27-2015), reversing a previous ruling by the trial court and the Court of Criminal Appeals, has determined that a ten to fifteen wait for backup in a DUI investigation was not unreasonable.

Prolonged Detention to Await Backup Was Reasonable

A detention by a police officer accomplished by a show of authority (as opposed to simply a consensual encounter) requires only reasonable suspicion that the detained person has committed or is about to commit a crime. However, the duration of the detention should also be no more than reasonably necessary for its purpose. The Tennessee Supreme Court, in the recent case of State v. Montgomery, M2013-01149-SC-R11-CD (Tenn. 3-27-2015), reversing a previous ruling by the trial court and the Court of Criminal Appeals, has determined that a ten to fifteen wait for backup in a DUI investigation was not unreasonable.

Collision with Tennessee police car leads to drunk driving charge

Many people have made mistakes in their lives. Fortunately for most, a mistake turns into a learning experience, and people make changes accordingly. Despite this, it may be assumed that a person is doomed to repeat such a mistake. In regard to a person who has faced criminal charges, an assumption that a person will repeat a criminal act is not enough to gain a conviction. For example, a man in Tennessee is facing a second drunk driving charge after apparently striking a police car.

Convictions Reversed For Misconduct in Closing Argument

Closing argument is an opportunity for each side in a trial to present their theory of the case after the evidence has been presented, and to attempt to persuade the jury that the evidence supports that side's theory, and/or does not support the theory presented by the opposing side. However, attorneys making closing arguments are not allowed to just say anything they want. Their arguments must be made within the confines of rules governing attorney ethics and the conduct of trials. In the recent Tennessee criminal case of State v. Wheeler, W2013-02765-CCA-R3-CD (Tenn.Crim.App. 3-11-2015), the Court of Criminal Appeals reversed trial court convictions for forgery and attempted theft due the prosecutor's improper statements during closing argument.

Convictions Reversed For Misconduct in Closing Argument

Closing argument is an opportunity for each side in a trial to present their theory of the case after the evidence has been presented, and to attempt to persuade the jury that the evidence supports that side's theory, and/or does not support the theory presented by the opposing side. However, attorneys making closing arguments are not allowed to just say anything they want. Their arguments must be made within the confines of rules governing attorney ethics and the conduct of trials. In the recent Tennessee criminal case of State v. Wheeler, W2013-02765-CCA-R3-CD (Tenn.Crim.App. 3-11-2015), the Court of Criminal Appeals reversed trial court convictions for forgery and attempted theft due the prosecutor's improper statements during closing argument.

Convictions Reversed For Misconduct in Closing Argument

Closing argument is an opportunity for each side in a trial to present their theory of the case after the evidence has been presented, and to attempt to persuade the jury that the evidence supports that side's theory, and/or does not support the theory presented by the opposing side. However, attorneys making closing arguments are not allowed to just say anything they want. Their arguments must be made within the confines of rules governing attorney ethics and the conduct of trials. In the recent Tennessee criminal case of State v. Wheeler, W2013-02765-CCA-R3-CD (Tenn.Crim.App. 3-11-2015), the Court of Criminal Appeals reversed trial court convictions for forgery and attempted theft due the prosecutor's improper statements during closing argument.

Tennessee pursuing unique approach to drunk driving

Because of the public service campaigns that have have filled the airways, most people are aware of the potential consequences of drinking and driving. Likely because of this awareness, it may be assumed that people driving at a certain time of night or under certain circumstances are under the influence of alcohol. Such assumptions could lead to charges related to drunk driving. Now, Tennessee politicians want to create additional requirements for repeat DUI offenders.

Self Serving Statement Not an Excited Utterance

In Tennessee, an 'excited utterance' is a specific exception to the hearsay rule of evidence. Generally, extrajudicial assertions of fact are considered hearsay cannot be introduced to prove those facts. Some exceptions apply. One of those exceptions in Tennessee is an 'excited utterance,' which is a statement relating to a startling event or condition made while the declarant was under the stress of the event or condition. Courts consider these kinds of hearsay statements sufficiently reliable to at least be heard by a jury (though the jury is certainly free to determine how much weight to afford the statement). In the recent case of State v Wells, W2014-00185-CCA-R3-CD (Tenn.Crim.App. 3-13-2015), the Court of Criminal Appeals rejected the defense argument that the Defendant's assertions of self defense made to an arresting officer met the requirements of this exception.

Self Serving Statement Not an Excited Utterance

In Tennessee, an 'excited utterance' is a specific exception to the hearsay rule of evidence. Generally, extrajudicial assertions of fact are considered hearsay cannot be introduced to prove those facts. Some exceptions apply. One of those exceptions in Tennessee is an 'excited utterance,' which is a statement relating to a startling event or condition made while the declarant was under the stress of the event or condition. Courts consider these kinds of hearsay statements sufficiently reliable to at least be heard by a jury (though the jury is certainly free to determine how much weight to afford the statement). In the recent case of State v Wells, W2014-00185-CCA-R3-CD (Tenn.Crim.App. 3-13-2015), the Court of Criminal Appeals rejected the defense argument that the Defendant's assertions of self defense made to an arresting officer met the requirements of this exception.

Self Serving Statement Not an Excited Utterance

In Tennessee, an 'excited utterance' is a specific exception to the hearsay rule of evidence. Generally, extrajudicial assertions of fact are considered hearsay cannot be introduced to prove those facts. Some exceptions apply. One of those exceptions in Tennessee is an 'excited utterance,' which is a statement relating to a startling event or condition made while the declarant was under the stress of the event or condition. Courts consider these kinds of hearsay statements sufficiently reliable to at least be heard by a jury (though the jury is certainly free to determine how much weight to afford the statement). In the recent case of State v Wells, W2014-00185-CCA-R3-CD (Tenn.Crim.App. 3-13-2015), the Court of Criminal Appeals rejected the defense argument that the Defendant's assertions of self defense made to an arresting officer met the requirements of this exception.

What are the consequences of vehicular homicide in Tennessee?

In Tennessee, a driver may be charged with vehicular homicide if he or she causes a fatal automobile accident while under the influence of alcohol. The driver could face a vehicular homicide charge, along with other charges, if his or her blood alcohol concentration (BAC) is found to have been .08 percent or higher at the time of the crash. This particular charge is considered to be a class B felony, carrying serious penalties in the event of a conviction. 

Reasonable Suspicion Upheld Despite Working Headlight

A police officer must have reasonable suspicion that a crime has occurred or is about to occur before initiating a warrantless stop or detention of a vehicle to investigate. But the suspicion must only be reasonable at the time of the seizure. It does not have to be proven ultimately correct. In the recent Tennessee case of State v. Mullican, M2014-01122-CCA-R3-CD (Tenn.Crim.App. 3-4-2015), the Court of Criminal Appeals affirmed a trial court ruling validating a stop of a vehicle for having one headlight out when it was supposed to be on, despite the fact that both headlights on the seized vehicle later appeared to be working when the vehicle was examined in an impound lot.

Reasonable Suspicion Upheld Despite Working Headlight

A police officer must have reasonable suspicion that a crime has occurred or is about to occur before initiating a warrantless stop or detention of a vehicle to investigate. But the suspicion must only be reasonable at the time of the seizure. It does not have to be proven ultimately correct. In the recent Tennessee case of State v. Mullican, M2014-01122-CCA-R3-CD (Tenn.Crim.App. 3-4-2015), the Court of Criminal Appeals affirmed a trial court ruling validating a stop of a vehicle for having one headlight out when it was supposed to be on, despite the fact that both headlights on the seized vehicle later appeared to be working when the vehicle was examined in an impound lot.

BAC levels and drunk driving penalties

BAC levels, or blood alcohol concentration levels, indicate the amount of alcohol in a driver's bloodstream. Law enforcement officers administer certain tests to determine the BAC levels of a driver. In Tennessee, a BAC of .08 percent or higher is considered drunk driving and is grounds for arrest. However, there are certain circumstances in which a driver could be arrested for a lower BAC. 

Surplusage in an Indictment Does Not Create a Fatal Variance

A fatal variance may occur in a criminal trial where the proof presented at trial differs materially and prejudicially from the specific allegations in the criminal indictment. Such a variance is said to be 'fatal' as it can kill the State's case (and result in dismissal of the charges). It is a violation of an accused person's right to be fairly informed of the criminal charges against him or her. However, for a variance between the indictment and proof to be fatal, it must be both material to the charge and prejudicial to the accused. In the recent Tennessee case of State v. Lewis, E2014-00918-CCA-R3-CD (Tenn.Crim.App. 2-25-2015), the Court of Criminal Appeals rejected an appellant's claim of fatal variance where the variance was with a non-material allegation.

Surplusage in an Indictment Does Not Create a Fatal Variance

A fatal variance may occur in a criminal trial where the proof presented at trial differs materially and prejudicially from the specific allegations in the criminal indictment. Such a variance is said to be 'fatal' as it can kill the State's case (and result in dismissal of the charges). It is a violation of an accused person's right to be fairly informed of the criminal charges against him or her. However, for a variance between the indictment and proof to be fatal, it must be both material to the charge and prejudicial to the accused. In the recent Tennessee case of State v. Lewis, E2014-00918-CCA-R3-CD (Tenn.Crim.App. 2-25-2015), the Court of Criminal Appeals rejected an appellant's claim of fatal variance where the variance was with a non-material allegation.

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