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Knoxville Tennessee DUI Attorney

Did the police violate your rights during a traffic stop in Tennessee?

Police officers have sirens, flashing lights, badges, and handcuffs, so they can pull you over or arrest you whenever they want, right? Wrong. Under the law, people in the United States have rights that protect them from the unreasonable actions of police officers, and officers must act within the confines of the law. However, this does not mean that officers do not abuse their authority and violate the law – and the rights of the public. 

When police violate your rights, it can have a significant impact on a subsequent criminal case if you face charges. You should seek help from a criminal defense attorney who can identify whether the police violated your rights at a traffic stop and how to use that violation as part of your defense.

No Justification for a Traffic Stop

The Fourth Amendment of the U.S. Constitution protects you from unreasonable search and seizure, which includes unreasonable detention or arrest. Because of this protection, police must have justification to pull you over – specifically, reasonable suspicion that you have violated the law in some way. It could be as simple as failing to signal for a turn, but there has to be some violation. If an officer has no reason to believe you violated the law, the traffic stop itself violates your rights.

Too often, however, officers will act with racial bias or will pull people over late at night on the off chance they may be intoxicated (without observing any signs of impaired driving). Many traffic stops may be unlawful and may violate your Fourth Amendment rights.

Unreasonable Search of Your Vehicle

An officer can conduct a search of your vehicle if they have a search warrant, if they have probable cause to believe there is evidence of a crime, or if you consent. You always have the right to deny a search request and if you do so, an officer who stopped you will need to demonstrate probable cause for the search (since they usually will not have a search warrant for a vehicle they just pulled over).

Probable cause is a higher standard than reasonable suspicion and must be based on factual information. Officers cannot simply say they had a hunch you had drugs in the car – they must show reason on which to base their suspicions. If police officers arrest you, they can perform a search incident to arrest, but they cannot search closed compartments of your car or anywhere that would not hold evidence of your offense. You would be surprised how many vehicle searches violate a driver’s rights, and any evidence stemming from the unlawful search should be suppressed.

Failing to Read Your Rights

If police arrest you or simply tell you that you are not free to go, you are considered to be in police custody for the purposes of the law. If police want to ask questions of someone in custody, they must first read the suspect their Miranda Rights. These rights include the right to remain silent and the right to have an attorney present under the Fifth Amendment. It is a violation of the Constitution if police ask you any questions in custody without informing you of these rights.

Police Brutality

Police cannot use force whenever they want to. The law allows officers to use a reasonable amount of force to make an arrest or defend themselves from imminent harm. When determining what amount of force is “reasonable,” officers should consider the circumstances, including:

  • The severity of the suspected offense
  • The potential threat of the suspect to the community
  • Whether the suspect was trying to resist arrest or flee

When the circumstances do not warrant using force – such as when a suspect is not resisting – officers who use force engage in unlawful police brutality.

In recent years, much attention has been focused on the unjustified use of deadly force by police. There are specific circumstances under which police have the right to use force they reasonably know will cause severe or fatal bodily harm. Such circumstances include when a suspect poses the threat of serious harm to the officer, or when a suspect who creates a threat to others is fleeing. Police are not allowed to shoot at someone who is running away if they do not pose a threat. Unfortunately, you only need to read the news to see that officers can use unjustified and unlawful force and deadly force against citizens.

Your Rights after Police Misconduct

If police officers violate your rights, you can seek relief in various ways. First, if you are facing criminal charges after a traffic stop arrest, a skilled criminal defense lawyer can examine how to use any police misconduct as part of your defense. Some examples include:

  • If police pulled you over without reasonable suspicion, any information, evidence, or arrests stemming from the traffic stop are unlawful
  • If police illegally searched your car, any evidence they found should be suppressed from your case
  • If police failed to read your Miranda rights, any answers you gave to their questions should be suppressed

Often, raising constitutional violations can result in the dismissal of your charges. You need an attorney who understands how to identify when police violated your rights.

If you were the victim of police brutality, you have the right to file a lawsuit under federal law, 42 U.S. Code § 1983. You can seek damages for physical injuries, monetary losses, and emotional distress stemming from the brutality. Family members who lose loved ones due to police brutality also have the right to sue for their losses.

Our Knoxville Criminal Defense Lawyer is Here to Help At Barnes Law, we regularly represent criminal defendants who had their rights violated by police. We know how to raise violations as part of a comprehensive defense strategy. We defend against every type of criminal charge, from traffic offenses to violent crimes.

Man in Courtroom

How does evidence get suppressed?

To get a criminal conviction at trial, a prosecutor must present enough evidence to convince a judge or jury that the defendant is guilty of the specified offense beyond a reasonable doubt. Because this is the highest burden of proof in the U.S. justice system, it often requires a substantial amount of evidence to meet. Law enforcement can provide evidence from investigations and the prosecutor can present the evidence in court.

Evidence can come in many forms, including:

  • Physical objects
  • Photographs
  • Witness statements
  • Video or audio recordings
  • Digital data
  • Scientific findings

The law in the United States does not allow all types of evidence to be submitted in court against a defendant, however. There are many protections for defendants in place and rules of evidence that dictate when evidence can be lawfully obtained and presented in court. When illegal evidence comes against a defendant, it can often lead to a wrongful conviction. For this reason, it is imperative to have a highly skilled criminal defense lawyer handling your case who knows how to get evidence “suppressed.”

Motions to Suppress

The suppression of evidence occurs when a judge rules that certain evidence should not be submitted at trial. In order for a judge to rule on such an issue, a lawyer must often file a motion with the court asking for a ruling. A motion to suppress is the catalyst that can lead to the keeping evidence out of your criminal case.

In order to succeed on a motion to suppress, your attorney must present sufficient factual information and apply specific laws to those facts to convince the judge that the evidence is illegal. Law presented in these motions can include case law, state or federal rules, or often, the Constitution of the United States. These motions must be persuasively drafted with sound legal analysis and reasoning.

The prosecution can respond to your motion to suppress with their own arguments in favor of the evidence. In some cases, the court will hold a motion hearing during which both parties will argue their case. The judge will then rule on whether the evidence should be suppressed or not.

The Importance of Evidence Suppression

Often, the suppression of the right evidence can lead a jury to acquit you at trial, or even to the dismissal of charges before a trial ever happens. A common example happens in drug-related cases. In order to convict you of drug possession, the prosecutor must usually prove that police found a controlled substance. They cannot simply tell the jury you had cocaine – instead, they should have the evidence tested and present test results as proof that the substance in question was cocaine.

If police officers obtained the drugs unlawfully – which is more common than you may imagine – a defense attorney can file a motion to suppress the illegally-obtained drug evidence. If the motion is successful, the prosecutor can no longer use that drug evidence to prove that you possessed drugs. This is often the main piece of evidence in drug cases and without it, the prosecution usually knows it cannot prove the drug charges beyond a reasonable doubt. Therefore, they may often dismiss the charges then and there. This is only one of many examples of how the suppression of evidence can prevent a conviction.

Common Reasons to Suppress Evidence

As part of the discovery phase of a criminal case, your attorney will obtain and analyze all the evidence the prosecution plans to use against you and how the evidence was obtained. An experienced attorney should be able to identify when there is reason to file a motion to suppress.

Some examples of evidence commonly suppressed include:

  • Evidence obtained by an unreasonable search in violation of your Fourth Amendment rights
  • Evidence obtained due to an unlawful traffic stop or arrest, which constitutes an unreasonable seizure in violation of your Fourth Amendment rights
  • Confessions obtained without proper Miranda warnings in violation of your Fifth Amendment rights
  • Confessions obtained by coercion or physical force
  • Evidence that constitutes hearsay without a valid exception under the Federal Rules of Evidence
  • Evidence that is not relevant to the case at hand
  • Evidence that is unreasonably prejudicial to the defendant
  • Evidence that is not reliable

The question of reliability often arises in criminal cases, as prosecutors often try to admit evidence based on questionable science. This can include evidence involving fingerprints, bloodstain patterns, eyewitness identifications, or DNA. For example, for decades, many people took the witness stand and claimed they were “experts” in analyzing blood spatter and giving their opinion on how the crime occurred. However, in recent years, scientific studies have cast substantial doubt on the reliability of blood spatter analysis and claim such “experts” led to many wrongful convictions. In this day and age, defense attorneys regularly question a prosecutor’s blood spatter testimony and seek for it to be suppressed.

In addition, defense lawyers know that forensic labs can make many mistakes that lead to unreliable testimony. This is common in DUI cases in which a blood test showed a defendant had drugs in their system or a blood alcohol content (BAC) over the legal limit. Labs may mislabel or switch samples, store them improperly, fail to record results right away, use uncalibrated testing equipment, and make many other mistakes that should render their testimony and the test results unreliable for admission at trial.

Contact a Knoxville Criminal Defense Attorney for Help Today

There are many, many other types of evidence that should be suppressed from criminal trials. The problem is that unrepresented defendants often do not realize when evidence against them is unlawful or how to go about getting it suppressed. Suppressing key evidence is only one of many defense strategies we regularly pursue at Barnes Law. If you were arrested or face criminal charges, you should not wait any longer to call a skilled Knoxville defense lawyer for a free consultation. The sooner Barnes Law starts working on your case, the sooner we can start building the most effective defense strategy for you.

DUI Second Offense

Unfortunately, if you’ve been charged with a DUI second offense, the potential penalties aren’t just twice as bad as a DUI first offense.  The minimum jail time in Tennessee on a DUI second offense is 45 days, versus just 2 days on a DUI first offense.  That’s a 2,250% increase!

The other penalties increase with a second offense as well.  The fine increases to a minimum $600 and the loss of license period increases to 2 years.  Additionally, an alcohol and drug assessment is required and the assessor’s recommendations, no matter how stringent, must be followed.  Add on court costs, increased cost of insurance, and attorney fees and its obvious a second offense DUI is a big deal.

The Good News

Despite the penalties being greater, defending a DUI second in court is very similar to defending a first offense.  That is because if your case gets tried to a jury, the jury won’t know you’ve been convicted before.

Only certain prior offense can “come into evidence” in a trial.  Prosecutors can’t use the fact that you’ve been convicted of a DUI before to prove that you are guilty of a DUI this time.  That’s because a prior conviction is not relevant to the question the jury must answer, “was the defendant impaired while driving or in physical control of a motor vehicle?”

Rehabilitation and Jail Time

Some people who have been charged with DUI second offense have substance abuse problems.  If that is the case, it serves the person charged and the community to get help with his or her addiction.

The law allows for a portion of the jail time imposed on a DUI second offense conviction to be served in an inpatient drug and/or alcohol treatment facility.  However, there are restrictions on how much time can be awarded and other aspects of this program.  Getting a spot in a facility can be difficult and costly, though there are insurance plans and state programs that can help out.

Plea Bargaining

There are times when a DUI second offense can be “reduced” to a DUI first offense.  This usually happens when your attorney can identify strong defenses and convince a prosecutor that there are either good legal and factual reasons or good mitigating personal reasons to reduce the charge.

It is not easy to get a second offense reduced to a first.  Many people think it should be as simple as asking the prosecutor, but at least in Knoxville and East Tennessee, district attorneys take DUI cases seriously, especially multiple offense DUIs.

Whether any particular negotiated agreement is a “good deal” depends on the facts and law of each case.  A reduction to a first offense could be a great result for one client and could also be wisely rejected by another, depending on the circumstances.

Qualifying as a Second Offense

Just because someone has a prior conviction for DUI, does not mean a current charge is a second offense.  In order to qualify as a prior for the purpose of making someone a multiple offender, the most recent conviction had to occur within the past ten years.  If someone has had no DUI convictions in the past ten years, then any current charge should be a first offense.

Also, if the DUI charge was from out of the State of Tennessee, a lawyer will need to examine the other states statute to make sure it qualifies.  He or she should also examine the documentation of any prior judgment of conviction for DUI, since an invalid judgement could be attacked and potentially not count against you.

These are just a few of the considerations when dealing with a DUI second offense charge.  We’d be happy to discuss the specifics of your case.  Just fill out the case evaluation form or give us a call at (865) 999-0294.

Free Legal Services for Those Affected by the Wildfires

Gatlinburg Wildfire Relief
Offering help to our neighbors in Gatlinburg and Sevier County

Our thoughts and prayers go out to everyone affected by the devastating wildfires in Gatlinburg and Sevier County.

In an effort to do our part to help in anyway we can, the Barnes Law Firm is offering free legal services to those individuals and businesses that have suffered.

Over the coming weeks and months our neighbors are likely to face some of the following issues:

  • Landlord/Tenant disputes
  • Home and property insurance claims
  • Unemployment benefits
  • Mortgage difficulties and foreclosures
  • Food benefits and public assistance
  • Family medical leave
  • Home repair conflicts and scams

The Barnes Law Firm is donating its time and resources to those affected. We will work to provide free advice and where necessary, pro bono representation.

For those issues that are outside our legal expertise we will work to put people in touch with other local attorneys that can help.

Please do not hesitate to call and let us know how we can be of service.

 

John Barnes

Owner/Attorney

(865) 805-5703

Supreme Court to Hear Drug Free School Zone Case

The Tennessee Supreme Court is hearing oral argument this week in State v. Gibson.  In Gibson the Court of Appeals upheld the trial court’s imposition of the Drug Free School Zone enhancement when the Defendant was convicted for facilitation of a felony cocaine charge.

Facilitation is a lesser included offense of the charged crime. The Defendant’s lawyers are arguing on appeal that the enhancements should not apply to the lesser included offense, but rather, only to the charged offense of possession of more than .5 grams of cocaine.

The Court of Appeals has previously held that “attempt,” also a lesser included offense, does warrant application of the Drug Free School Zone enhancement.  Therefore, the Supreme Court’s decision would likely affect how lawyers and courts handled attempt convictions under the School Zone statute as well.

The Court of Appeals case can be found at State v. Gibson.

Knox County Courts Closed Due to Inclement Weather, January 20th, 2016

FullSizeRender
View of Oak Ridge Highway in Clinton this morning

Last night the Knox County Courts announced their closing for today, January 20th, 2016.

Yesterday the city salted the highways and main roads, but with our overnight snow, today back roads have accumulated enough snow to make driving hazardous. If you must get out, drive with caution!

There is no word on closings tomorrow, but you can watch the news or check the court website here
for closing information.

Stay Safe this Halloween Weekend! Don’t Drive Intoxicated!

Candles pumpkins

Knoxville is a fun town with a lot going on this Halloween weekend.

With children out trick-or-treating and drivers behind the wheel, the police will be out in droves watching for impaired drivers.

It’s always a better bet to prepare ahead of time- better safe than sorry! You have a few options:

Have a designated driver!

Use a driving service. There are many options, two of which include Zingo and Uber.

Zingo

Zingo is a local driver service that we found on the AAA website “Sober Ride”. We called and asked more about it and found out from Kathy that you may call (865) 776-3465 to schedule a ride in advance. They will meet you and drive in your car and have a “chase” car follow, that way if you’re out and need a ride home but would like your car home too, they can drive your vehicle for you. The cost for Zingo is based on mileage and is as follows: 0-10 miles, $45; 10-20 miles, $65 miles. They will also make stops for you, say if you need a bite before returning home, for an additional $5 per stop.

Uber

Many of you may already be familiar with or Uber at this point, as it has been in Knoxville for over a year. Uber is a transportation network that allows users to connect with drivers via their smartphone app.

Download the app and you can receive a driver to your exact location. You can check out their rates here.  We did and found that from Downtown Grill and Brewery to our office at 5401 Kingston Pike in Bearden (about 7 miles), the fare will run between $13 and $26. Not bad- and a heck of a lot cheaper than a DUI! Safer too!

The Barnes Law Firm, is dedicated to DUI defense, but of course we always promote safe driving! Have fun this weekend and stay safe, Knoxville!

Tennessee Scraps $800,000+ Drunk Driving Ad Campaign

Tennessee’s Highway Safety Office has apologized for an anti drunk-driving campaign after getting backlash that it was offensive and sexist.

(Photo: John Partipilo / The Tennessean)
(Photo: John Partipilo / The Tennessean)

The campaign included fliers and coasters with phrases on them including, “Buy a drink for a marginally good-looking girl…If this sounds like something you would do, your judgment is impaired…” and “After a few drinks the girls look hotter and the music sounds better. Just remember: if your judgment is impaired, so is your driving.”

This tax payer funded campaign was pulled mid-July and made national headlines. According to WBIR, the campaign cost $846k. The apology asserted that no offense was intended.  Tennessee and other states continue to search, without much success, for effective ways to curb drunk driving, but many question whether these taxpayer funded ads benefit anyone other than the companies being paid to create and air the ads.

 

Tennessee Court Holds DUI Blood Draws Without a Warrant Illegal

The Court of Criminal Appeals recently reaffirmed an earlier decision, finding that when a DUI suspect refuses to give consent to have his blood tested, that the police must get a search warrant prior to a forced blood draw.  Search Warrant

Previously, a state law requiring “mandatory” blood draws, for suspects with a prior offense of who were involved in an accident with injury, had been interpreted to allow police to take the suspect’s blood over his objection, without a warrant.

The Tennessee Court cited the United State Supreme Court decision in Missouri v. McNeely, for the proposition that alcohol leaving the blood stream due to the passage of time is not enough, by itself, to equal “exigent circumstances.”  Without exigent circumstances, or some other established exception (like consent), police must get a search warrant in order to legally take a DUI suspect’s blood.

Read the full opinion here.

Congratulations to fellow Tennessee Association of Criminal Defense Lawyers member Claiborne Ferguson, of Memphis, on prevailing in both the trial and appellate courts.

Knox County Courts Closed for Weather – UPDATE

UPDATE 2/18/15 @ 7:15 – Both Knox County General Sessions and all divisions of Criminal Court have announced they will be closed tomorrow, Thursday the 19th.  The policy on the General Sessions Court website, states those courts will be closed when Knox County Schools are closed for “road conditions due to snow and/or ice.”  While Knox County Schools have already announced they are closed Friday, I don’t know whether thats due to “road conditions” or due to the extreme cold temperatures.  For now, its too early to say General Sessions will be closed Friday. Stay tuned for further updates.

For the second day in a row, Knox County General Sessions Courts are closed.  The General Sessions Courts follow the Knox County Schools for weather related closings, but do not do weather delays.  So, in the future, if you see schools are closed, so are the General Sessions courts.  BUT, if schools are on a 2 hour delay, courts will open on time.

Icy trees on Wall Avenue
Icy trees on Wall Avenue

As of this morning the streets around downtown and main road were in good shape and easily drivable, but much of the county is still inaccessible.  I drove on Middlebrook, Sutherland, and Kingston Pike, all of which were easily drivable, though Sutherland was pretty white.  Dallas and I both made it into the office today, but Kendahl lives a little farther out and is still snowed in.

There is no word yet on court or school closings tomorrow, though with the low of -8 tonight and snow still coming down, I’m not betting on either being back up and running.  As long as its safe to be here though, the Barnes Law Firm will be open and serving clients.

Stay warm and safe.

– John