Tennessee Supreme Court considers lines on traffic stops

 Stacey Barchenger, sbarchenger@tennessean.com

http://www.tennessean.com/story/news/2015/09/08/tennessee-supreme-court-considers-lines-traffic-stops/71538812/

September 8, 2015

Just how many times do drivers have to cross road lines before police can stop them for a traffic violation?

"Two cases going before the Tennessee Supreme Court this month pose that question. The justices could clarify a gray area of the law where the rules are not well defined and past court decisions are all over the map. Their ruling could limit or expand police powers to make traffic stops.
As one driver's attorney put it in a court filing, this case could "essentially give law enforcement authorities seemingly unfettered discretion to seize innocent drivers upon roadways in Tennessee."
Both cases involve drivers who were stopped by police after crossing road lines only once and for a brief amount of time. The cases are from Williamson and Knox counties.
Each driver was charged with DUI. In each case, county judges said the single line crossing was enough for police to make the stop for not staying within a lane. The Tennessee Court of Criminal Appeals agreed with the county judges.
But other high-profile cases have been dismissed by judges who say a single line crossing was not enough to justify the stop. Those cases include the dismissal of DUI charges against former Tennessee Titans quarterback Steve McNair in 2004 and against state Rep. Bill Beck, D-Nashville, earlier this year.
Those rulings are based on a case known as State v. Binette, said Rob McKinney, a DUI defense lawyer in Nashville. In that 2000 case out of Chattanooga, the state Supreme Court said it was impossible to drive a car in a straight line and that touching a road line a couple of times is not a violation, McKinney said.
McKinney predicted the Supreme Court will overrule that standard and say a single violation — one touch or crossing the line, for example — warrants a traffic stop.
He said that gives police broad power on the road, and not only when they suspect a driver is under the influence. In the first seven months of this year, Nashville police made 216,000 traffic stops. Police officials said 80 percent of those turned out to be warnings only. Over the past 10 years, the city has averaged 4,400 DUI arrests a year.
"I think it opens up the door that (police) can make any kind of traffic stop any time they want to," McKinney said. "You're going to have more traffic stops, police stopping more people solely for hitting that line."
Linzey D. Smith was arrested on DUI charges Dec. 6, 2012, in Williamson County. A Tennessee Highway Patrol trooper spotted her Honda Accord about 6 inches over the white fog line on a curve of Interstate 65, according to court documents. The trooper said that's why he pulled the woman over. Other than that, Smith was driving "perfectly fine" for at least 2.5 miles, records show.
Her attorney, Patrick Newsom of Nashville, argues in court filings that the Tennessee General Assembly did not intend for the driving laws to apply to such minor incidents. He notes that other laws lay out violations in specific terms, while this one does not. "If the legislature intended for even a momentary drift outside of a traffic lane to be considered a clear violation, it could have purposefully stated so as it did with the speed limit statute," Newsom's filing with the Supreme Court reads.
Tennessee Attorney General Senior Counsel Leslie Price, who will argue in defense of the state law, says only suspicion is needed for an officer to pull a driver over. Citing another past case, she said courts also can consider factors such as road and weather conditions in making a determination of illegal driving.
That case, 2010's Tennessee v. Brotherton, found that a broken tail light was enough for police to stop a vehicle.
Smith's case will be argued before the Tennessee Supreme Court on Sept. 30. Her case has been consolidated with one involving William W. Davis of Knoxville. Davis, an attorney, is arguing his own case before the state's highest court on Wednesday.
Read more about Davis' case here. 
Davis was pulled over in 2009 by a sheriff's deputy who was looking for a car reportedly connected to a domestic disturbance. The deputy testified, according to court documents, that video showed Davis crossing the lines one time in a quarter-mile stretch of road, which included a curve. The state argues that the deputy saw Davis cross the lines several times, but those were not caught on video.
In both cases, the attorney general argues that even the brief line crossing violates the law and is enough to warrant a traffic stop."


       COPYRIGHT CHELSEA NICHOLSON ATTORNEY AT LAW

The Tennessee Supreme Court reinstates DUI charges in case where subject passed field sobriety tests...

Just because you pass the tests folks, doesn't mean you are going home...State v. David Dwayne Bell, Sevier County, Submitted: 2/20/14

From the Tennessee Administrative Office of the Courts Website: 

http://www.tncourts.gov/press/2014/02/20/supreme-court-reinstates-dui-charges-case-where-suspect-passed-field-sobriety-tests


The Tennessee Supreme Court today reinstated DUI charges against David Dwayne Bell. Mr. Bell was stopped in 2009 by police for driving on the wrong side of a divided highway and performed several field sobriety tests with reasonable success. Despite his performance on the tests, police arrested Mr. Bell for DUI because he smelled of alcohol, and he admitted that he had drunk “more than he should have.” The Circuit Court for Sevier County suppressed blood alcohol test results and dismissed all charges, finding that police lacked probable cause to arrest Mr. Bell. In light of Mr. Bell’s satisfactory performance on the field sobriety tests, the Court of Criminal Appeals agreed. In a unanimous opinion, the Supreme Court ruled that police had probable cause to arrest Mr. Bell for DUI. The Court observed that the existence of probable cause is quite distinct from guilt at trial. While a criminal conviction must be supported by proof beyond a reasonable doubt, probable cause requires only facts that would support a prudent person’s belief that the defendant committed an offense. Mr. Bell’s significant driving error, odor of alcohol, and admission of drinking warranted a belief that he was driving under the influence and, therefore, established probable cause for his arrest. The Court, recognizing that an individual may pass field sobriety tests and still be under the influence of alcohol, concluded that Mr. Bell’s satisfactory performance on field sobriety tests did not sufficiently undermine the belief that he was driving under the influence.

(615) 913-3932

219 2nd Avenue North, Suite 400

Market Street Building

Nashville, TN 37201

 

Department of Safety Seizures: What you need to know

Just because the Government takes your stuff away: car, money, XBOX, (yes, the government can and does take people's XBOX), does not mean that there is no way to get it back. When this happens, you get a Notice of Seizure. Within the Notice, the government states in very, very small print that you have thirty (30) days to either hire a lawyer or petition the government to get your stuff back. This is done through the Department of Safety. As you might guess, it can be a long process.

Here are some things you should know:

 

1. Simple Possession is an exception. It is not absolute, but it is an exception. Pursuant to Tenn. Code Ann. § 53-11-451(a)(4)(c), “A conveyance is not subject to forfeiture for a violation of Tenn. Code Ann. § 39-17-418(a) or (b)…” 39-17-418 is the statute for simple possession and casual exchange. This exception to the seizure statute prevents, “the forfeiture of a vehicle when the operator is found guilty of simple possession of a small amount of a controlled substance and the vehicle's only connection with the substance is as a means of transportation.” Donihe v. Tennessee Dept. of Safety, 865 S.W.2d 903, 906 (Tenn.App.1993); Hill v. Lawson, 851 S.W.2d 822 (Tenn. Crim. App. 1992).  

2. Just because you have a large amount of cash does not mean that you are up to something illegal.   Pursuant to Tenn. Code Ann. § 53-11-201, you have the opportunity at a hearing to show you have a legitimate interest in the property, which you acquired lawfully and in good faith, and that you, “had at no time any knowledge or reason to believe that it was being or would be used in violation of the laws of the United States or of the state relating to narcotic drugs or marijuana.”

These are just some basics. In my practice, I have noticed that many seizures go unchallenged whether that is because the person is in jail and has no ability to file a petition or for a number of reasons.

dui and criminal defense blog

Chelsea Nicholson

 

 

IGNITION INTERLOCK DEVICES: When do you have to have them?

The biggest question I get in DUI cases is do I have to have an ignition interlock device and will I lose my license?

You do not have to have an ignition interlock device unless you are convicted of DUI or implied consent. If you plead guilty or are found guilty of these offenses, by statute, the law requires you to lose your license. You can apply for a restricted license, which requires you to install an ignition interlock device and have SR22 insurance. However, if you are not found guilty of these offenses and plead to a lesser offense such as reckless driving, you do not have to lose your license.

Do you have to lose your license or have an ignition interlock device when you are charged with DUI and are on bond? No. You do not lose your license or are required to have a restricted license with the use of an ignition interlock device until you plead guilty or are found guilty of DUI or violation of the implied consent law.

If I have an ignition interlock device, can I drive anywhere? Yes. If you have a restricted license because of a DUI conviction, and you have an ignition interlock device along with your SR22 insurance, there are no restrictions on the hours you drive or where you drive.





Chelsea Nicholson

  Attorney At Law

7 Years of Practice as Chelsea Nicholson, Attorney at Law

This year marks my 7th year of private practice as a criminal lawyer. Seven was my father's lucky number. So to mark that anniversary, I thought I would write an article on certain issues and lessons I have learned as a private practice criminal lawyer:

1. Be Present. One of my mentors attorney Jack Butler used to state to me that the hardest thing for a lawyer to make it in private practice was to simply "be present." It took me a long time to understand what that meant, but I know exactly now. It is not easy to go to court every day, have jury trials, and to just carry on the day to day lawyer duties and run a business. No one is going to stand over your shoulder and make you be the lawyer you need to be for each and every client every day. Learning how to manage this on your own is it's own beast for solo practitioners to tackle and learn. This was a very good piece of advice from an old pro.

2. Take some "me time" every now and then. This is self explanatory. The practice of law is not going anywhere. If you do not take some time for a hobby that you enjoy that does not involve the law every now and then, you will get burned out, which is very easy to do in such a stressful environment. Our client's lives weigh on us. If you do not step aside from that weight from time to time, it can get very heavy. 

3. Talk to your collegues and ask for help. This was especially hard for me. Learning to reach out and say that you need help or that you cannot figure something out on your own is okay. The law is a practice, and you cannot ever expect to know it all....not ever.

4. Care for your clients. I think we as lawyers can become numb to the issues that our clients are facing. We get so used to the conflicts, heavy duty serious crimes and cases, heavy case loads, and conflicts with the court and other side so much that we become numb to the issues. We have to remember that each and every clients matters, and their individual facts and concerns are new to them while they may be something we see every day and old to us. We have to remember to take the time to still keep our empathy. 

5. Listen. It is so hard to just sit back and listen to our clients, opposing side, and the court especially all in the same morning. We have a million things to do, other courts to check in, and people to call back. But, part of what we do is counseling. Listen...Being a good listener will make you a better all around lawyer, friend, and person.

6. Call everyone back within 24 or at least 48 hours. I learned this from another mentor. It is not easy. But, it works. If you go ahead and do that every day, it makes everyone happy. Client issues get addressed on the front end instead of causing built up stress for everyone involved. This is a good habit to maintain in your practice. 

7. Remember to enjoy the practice, and why you are doing all of this. This is my last lesson I have learned, and "lucky number seven." You go to school for 7 or 8 years. You take this awful bar exam that takes months and months to get the results back. You went through this particular hell for a reason. Because you wanted to be a lawyer. We all had our individual reasons for wanting to do that. Remember that when things get tough because they will. This job is no job for people that want an easy job and life. It is a life choice. It effects every part of your life, and it is not something that you can go home and not take with you. But, not everyone gets to effect people's lives in the manner that we get to. People are depending on us. We need to remember that, and why we carry the torch that we do. Mine was justice. I wanted to help people. Plain and simple. I wanted to be a part of a greater good in this world. Sometimes I have to remember that. I will leave on this note, and a quote for my seven year anniversary. 

"Don't go around saying the world owes you a living. The world owes you nothing. It was here first." " Mark Twain