Category: Uncategorized

Mail and Wire Fraud: Frequently Asked Questions

Because we rely so heavily on the mail system and other forms of communication, mail and wire fraud are commonly-charged white collar crimes. If you are accused of committing fraud, all it takes is a single mailing, telephone call, or email to trigger mail and wire fraud charges. These are serious federal crimes that carry heavy consequences. 

At Barnes Law, we have the experience and skill that you need to face your mail and wire fraud charges and get a fair result. Knoxville criminal defense attorney John Barnes can help you understand the charges, explain your options, and get you through this difficult time. If you’re facing mail and wire fraud charges and don’t know what to do, call us at 865-805-5703 or contact us online

What is Mail Fraud?

Mail fraud is broadly defined under federal lawas any attempt to commit fraud or perform a fraudulent act by using any mail system, including the United States Postal Service, as well as private carriers such as FedEx or UPS. 

The most well-known form of mail fraud is a Ponzi or pyramid scheme such as the one run by Bernie Madoff. Other common forms of mail fraud involve mailings soliciting donations for fake charities, mortgage finance schemes, and fictitious lotteries and other contests. 

It’s important to keep in mind that the fraud does not need to have anything to do with the mail itself. You can be charged with mail fraud simply because you used the mail system as part of your business.  

What is Wire Fraud?

Wire fraud is also a federal offensebroadly defined as any attempt to commit fraud by using telephone lines or other electronic means of communication. 

An extremely common and well-known example of wire fraud is the “Nigerian Prince” email scam. Wire fraud also includes email phishing, telemarketing scams, and other attempts to commit fraud via the telephone, email, and the internet. 

Are Mail and Wire Fraud Federal or State Crimes?

Mail fraud and wire fraud have been federal crimes since 1872. This is primarily because mail and wire fraud frequently cross state lines, and are therefore subject to federal jurisdiction. However, they also typically use either the federal mail system or other interstate means of communications.

Why am I Being Charged with Mail and Wire Fraud in a State Where I Don’t Live?

The rules of federal jurisdiction allow you to be indicted and tried in any state where the fraud took place. 

For example, let’s say someone ran a mortgage fraud scheme out of an office in the District of Columbia.  However, all of the mailings were sent from a mailing address right across the border in Maryland. The mailings were sent to people in 13 different states, including Tennessee. Federal prosecutors could charge the defendants in DC, Maryland, or any one of the states where the victims received their mail.

Federal prosecutors choose where they file the charges based on a number of factors. They may choose a particular state because that state was impacted more than the other states. Alternatively, there may be political reasons behind the choice. And of course, federal prosecutors are likely to choose the state where they believe they have the best chance of obtaining a conviction.  

What Are the Elements of Mail or Wire Fraud?

Every crime has elements (or parts) that the prosecution must prove in order to obtain a conviction. If the prosecution cannot prove one or more of the elements of the crime, the charges should be dismissed, or the jury should acquit the defendant.

There are three elements of wire and mail fraud:

  1. A scheme or plan to commit fraud;
  2. The intent to commit fraud;
  3. The use of interstate mails or wire communications

Again, mail and wire fraud are defined very broadly. Merely using the mail or the telephone can trigger mail and wire fraud charges.

Can I be Convicted Even if I Didn’t Steal Any Money?

Yes, you can be convicted even if you didn’t benefit in any way from your actions. The prosecution only needs to prove that you intended to commit fraud and does not need to prove that anyone was actually defrauded.

What are the Potential Penalties?

Mail and wire fraud are serious federal crimes and prosecutors are aggressive in pursuing convictions. It’s important to note that you can be charged with a separate crime for each alleged act of fraud – for example, each mailing can trigger a separate count for mail fraud. In addition, you can be charged with multiple counts for both mail and wire fraud. As a result, the penalties can quickly add up and seem overwhelming. The possible penalties for each count of mail and wire fraud are as follows: 

  • Prison sentence of up to 20 years
  • Individuals can be fined up to $250,000
  • Organizations can be fined up to $500,000

In addition to prison time and hefty fines, a felony conviction for mail or wire fraud will be public record. Your reputation could be irreparably damaged, and a conviction could harm your prospects of future employment.

What are the Possible Defenses? 

There are defenses that can be successfully argued in order to avoid a conviction for mail and wire fraud. Here are some of the defenses that can be raised:

  • Lack of intent. In order to be found guilty, you had to intend to commit fraud. What may appear to be fraud to the prosecution, may be the result of poor management, reckless business practices, or simple negligence. 
  • Good faith. Another defense that relies on a lack of intent to commit fraud, here it is argued that you had an honest, good faith belief that the venture would be successful for everyone involved. 
  • Puffery. Every business engages in some “puffery” in order to sell their product or service. To put in another way, representations that were made about potential success were statements of opinion, minor exaggerations, or otherwise immaterial. 

Contact a Knoxville Tennessee Mail and Wire Fraud Defense Attorney

Mail and wire fraud charges are complex and aggressively prosecuted. Criminal defense attorney John Barnes can help you face your mail and wire fraud charges and get you a fair result. Don’t delay and jeopardize your future – call us at 865-805-5703 or contact us onlineto schedule a free consultation.  

Identity Theft is a Serious Crime

While identity theft is nothing new, thanks to the internet and our growing dependence on technology and electronic communication, identity theft is skyrocketing. We are much more vigilant regarding identity theft now that we were in previous years. The state and federal governments have enacted legislation in order to aggressively combat this increase in identity theft crimes. In addition, law enforcement is under increasing pressure to charge defendants with identity theft, and more importantly, get convictions.

If you’ve been charged with identity theft, you need someone on your side. This area of the law is complex and carries heavy consequences that could change your life forever. Identity theft defense attorney John Barnes can help you understand your options and prepare the best possible defense. Don’t leave your future in the hands of the prosecution – Barnes Law can help you get a fair result. Call us at 865-805-5703 or contact us onlinein order to schedule a free consultation. 

Identity Theft Under Tennessee Law

Identity theft is governed primarily by Section 39-14-150of the Tennessee Code. The statute makes it illegal to do the following: 

  1. Buy, use, obtain, possess, or sell the someone else’s personal information, which includes any information or data that can be used to identify a person;
  2. With the intent to commit any unlawful act such as obtaining credit, goods, or services in the name of someone else; 
  3. Without that person’s consent or lawful authorization. 

In order to convict you of identity theft, the prosecution needs to prove that you obtained someone else’s personal information with the intention of committing some unlawful act without their consent. 

Identity theft is a serious crime. Under Tennessee law, identity theft is an automatic Class D Felony. This means that you are facing a prison sentence of two to 12 years and a fine of up to $5,000 if you are convicted. Generally speaking, the sentence and fines will increase according to how much harm was done to the victim. 

Identity Theft Trafficking

Identify theft charges aren’t limited solely to instances of obtaining or using someone’s personal information. Tennessee law also makes it illegal to engage in “identity theft trafficking.” Identity theft trafficking is charged when (1) the defendant is alleged to have sold or otherwise transferred someone’s personal information without their consent; and (2) they knew or should have known that the information would be used for unlawful purposes. 

For purposes of proving intent to engage in identity theft trafficking, Tennessee law expressly allows the jury to consider as evidence the fact that the defendant possessed the information of five or more people without their consent. To put it another way, having the personal information of five or more people is sufficient to charge you with identity theft trafficking. 

Identity theft trafficking is a Class C Felony, punishable by a prison sentence of three to 15 years and up to $10,000 in fines. In comparison to simple identity theft, trafficking carries a potentially longer prison sentence and larger fines. 

Common Types of Identity Theft

There are many ways to commit identity theft and for a wide variety of purposes. Here are some examples of obvious instances of identity theft:

  • Using a stolen credit card to make purchases online
  • Using a stolen social security number and other information to apply for a loan
  • Using a stolen ID in order to purchase alcohol
  • Using stolen medical information in order to obtain health insurance coverage
  • Using a stolen social security number in order to obtain a passport

The examples above are pretty straightforward, but it’s important to remember that identity theft isn’t always obvious. In addition, the prosecution has to prove that you have actually committed identity theft.

Identity Theft Defenses

If you’ve been charged with identity theft, it’s important to understand exactly what the prosecution has to prove – that you used someone else’s identity without their consent and with the intent to commit an unlawful act. Understanding the elements of identity theft can help you formulate a defense. 

For example, you may be able to argue that there was a misunderstanding between you and the other person and you thought they had given you their consent. While this defense is difficult between two people who don’t know each other, it can be successful when the alleged identity theft occurred between friends or family. 

You may also be able to argue that although you had the other person’s personal information without their consent, you did not intend to do anything with it. Intent can be difficult for the prosecution to prove, and they will have to rely on circumstantial evidence. That said, you should understand that the prosecution doesn’t have to prove that you actually committed an unlawful act, only that you intended to. Conversely, actually committing an unlawful act would be considered evidence of your intent.  

If the alleged identity theft occurred in the context of a business transaction, you may be able to argue that you had the legal authority to access and use the other person’s personal information.  

If You’ve Been Charged with Identity Theft, Contact the Barnes Firm for Help 

Identity theft is a serious crime that carries severe consequences. In addition to jail time and heavy fines, a felony conviction could ruin your reputation and even make it difficult to get a job. You’re probably feeling overwhelmed, but understand that you do not need to face these charges alone. An experienced criminal defense attorney can level the playing field and give you a fighting chance at a fair outcome. 

Identity theft defense attorney John Barnes works with clients in the Knoxville area to make sure they get fair treatment. At Barnes Law, we understand that this isn’t just a case – this is your life. We provide dedicated, skilled legal representation so that you can face your charges with confidence. If you’d like to schedule a free consultation and case evaluation, call us at 865-805-5703 or complete our online contact formtoday. 

The Basics of Healthcare Fraud

Healthcare fraud is considered a white collar crime, and charges are typically brought against doctors and healthcare organizations. Due to the complexity of the healthcare industry, it can be hard to detect and difficult to prove. As a result, allegations can be made even when no fraud occurred or there was no intent to commit fraud. If you’re facing charges for healthcare fraud, it’s imperative that you seek legal counsel to make sure you get the best possible result. 

Knoxville criminal defense attorney John Barnes and former federal prosecutor Ed Holt represent those who have been accused of healthcare fraud to make sure their rights are protected. If you would like a free consultation and case evaluation, call us at 865-805-5703 or send us an emailtoday.

Who You Are Up Against

If you’re facing charges for healthcare fraud, it’s important to understand who the parties are. The “victims” of the alleged healthcare fraud are the insurance providers, which are usually national corporations that serve multiple states. As a result, healthcare fraud cases are typically handled by the federal government and investigated by the Office of the Inspector General from the Department of Health and Human Services, often in concert with the Tennessee Bureau of Investigation. 

Healthcare fraud isn’t limited to just private insurance companies, however. Charges for healthcare fraud can also be brought on behalf of Medicare and Medicaid, federal insurance programs with specific laws that govern healthcare fraud claims. Most claims for healthcare fraud include fraud against both private insurance providers and either Medicaid, Medicare, or both. 

Common Healthcare Fraud Allegations

Healthcare fraud typically occurs when medical providers or patients abuse the healthcare system for their own financial benefit. Given the complex relationship between healthcare providers and the insurance industry, healthcare fraud can occur in a variety of circumstances and situations. Here are some of the common healthcare fraud allegations that we see:

  • Accepting kickbacks or other financial benefits for patient referrals
  • Falsifying medical records or diagnoses in order to bill for unnecessary tests, surgeries, or other procedures
  • Performing unnecessary procedures or providing unnecessary services for the purpose of increasing billings
  • Billing for procedures or services that were never performed or provided
  • Using a patient’s identity or creating a false identity to bill for services or procedures that were never performed
  • “Upcoding” – billing for services or procedures that are more expensive than what is medically necessary
  • “Unbundling” – billing for each step of a procedure as if each were a separate procedure
  • Billing non-covered services, procedures, or other treatments as covered treatments
  • Waiving patient co-pays or deductibles and then overbilling the insurance provider to recover the loss
  • Billing patients for amounts that were covered by the insurance provider

The practices above are typically committed by people in the healthcare industry, but individuals can also be accused of healthcare fraud in the following scenarios:

  • Providing false information in order to obtain insurance coverage
  • Adding someone to your insurance coverage by providing false information
  • Exaggerating a claim
  • Visiting different doctors in order to obtain multiple prescriptions
  • Using someone else’s insurance

Healthcare fraud is extremely complicated, and it may be difficult to understand what exactly the government is claiming that you did wrong. No matter what the circumstances are surrounding your case, it’s critical that you hire a defense attorney as soon as possible.  

Consequences You May Be Facing

Healthcare fraud is a serious crime, punishable under federal law. If convicted, you may be facing both civil and criminal sanctions. In addition, it’s important to realize that each alleged act of fraud can be charged as a separate offense, meaning that the consequences can quickly add up. 

Healthcare fraud can result in lengthy prison sentences. A conviction for a single charge of Medicare or Medicaid fraud can result in five years in prison. Convictions for other types of healthcare fraud can carry a sentence of up to 10 years in prison. If the alleged fraud resulted in bodily injury or death, you may be facing a sentence of twenty years to life in prison.

On top of a prison sentence, you may also be facing harsh fines. Medicare and Medicaid fraud is punishable by fines of up to $250,000 for individual healthcare providers, while healthcare organizations face fines up to $500,000. And again, these fines can be imposed for each count of healthcare fraud. 

In addition to the fines, you may be subject to restitution if you are convicted. This means that you may be ordered to pay back any funds that were obtained as a result of the alleged fraud. 

While no one wants to go to prison, the fines and restitution can also be a significant burden. If you are convicted of healthcare fraud, you may be required to sell your home and other assets in order to pay these amounts. 

Lastly, a conviction for healthcare fraud may require you to serve a probation sentence. While probation is preferable to time in prison, the probation system can be onerous, requiring you to comply with various specific conditions and serve your time under close supervision.  

Defending Yourself Against Healthcare Fraud Charges

If you’ve been charged with healthcare fraud, you can’t afford to lose hope. The prosecution wants you to believe that the evidence is overwhelming and your conviction is a certainty. However, they have to prove the charges against you, and you have the opportunity to challenge the evidence, examine their witnesses, and argue for a fair result. Most importantly, don’t think that by pleading guilty that you’ll definitely get a more favorable outcome. It’s critical to hire a skilled criminal defense attorney to help you formulate the best possible defense. 

Most defenses to healthcare fraud focus on the element of intent. You can’t accidentally commit fraud – you have to have mean to do it – otherwise known as having intent. As a result, you may be successful if you can argue that you lacked the intent to commit fraud. Your attorney can help you assemble the evidence to demonstrate that the alleged fraud was the result poor management or negligent business practices. 

Contact a Tennessee Healthcare Fraud Defense Attorney

Healthcare fraud is a very serious crime with severe consequences that can change your life forever. The law is complicated and virtually impossible for non-lawyers to navigate successfully. If you’ve been charged with healthcare fraud, contact Barnes Law for help. We bring experience, skill, and dedication to our clients to ensure a fair result. Call us at 865-805-5703 or send us an emailin order to schedule a free consultation. 

What is Embezzlement?

Embezzlement is considered to be a white collar crime since it doesn’t involve violence or other elements that we typically associate with crime. Regardless, it is still a crime with serious consequences. As a result, if you’ve been charged with embezzlement, you need a criminal defense attorney who can give you the help you need.

Knoxville criminal defense attorney John Barnes at The Barnes Law Firm represents defendants charged with embezzlement and other crimes. Call us at 865-805-5703 or send us an emailin order to schedule a free consultation with him about your case. 

Embezzlement Defined

Embezzlement is a type of property theft and occurs when someone in a position of trust takes property belonging to someone else for their own benefit. To put it another way, the person who committed the theft had legal access to the property but did not own it. Here are some common examples of situations where embezzlement occurs:

  • A cashier takes money from the cash register to buy new clothes
  • The treasurer on a Board of Directors for a non-profit organization withdraws money from the organization’s operating account to pay for a vacation
  • The office manager for a doctor’s office routinely takes money from the petty cash account to buy lunch 
  • A corporation’s CFO creates false invoices for various services and directs payment to accounts under his sole control for several years

Embezzlement can encompass a wide variety of thefts by different people and can involve simple one-time thefts of some small amount of money to sophisticated schemes and hundreds of thousands of dollars.  

It’s also important to remember that embezzlement can include things other than money – you can be charged with embezzlement for theft of any type of property. 

Potential Penalties of Embezzlement Convictions

Embezzlement is a very serious crime under Tennessee law. You may be facing heavy fines, time in prison, or both. The value of the property alleged to be stolen will determine whether it is charged as a misdemeanor or a felony, and will also determine the severity of the potential penalties.  

Value of Property ChargeFinesPrison Sentence
$1,000 or lessClass A MisdemeanorUp to $2,500Up to 11 months, 29 days in jail
$1,000 to $2,500Class E FelonyUp to $3,0001-6 years in prison
$2,500 to $10,000Class D FelonyUp to $5,0002-12 years in prison
$10,000 to $60,000Class C FelonyUp to $10,0003-15 years in prison
$60,000 to $250,000Class B FelonyUp to $25,0008-30 years in prison
$250,000 or moreClass A FelonyUp to $50,00015-60 years in prison

As you can see, the crime becomes more serious and the penalties more severe as the amount stolen increases. However, even a misdemeanor embezzlement charge can result in jail time.

That said, it’s important to emphasize that the consequences of an embezzlement conviction can go beyond prison and fines. Criminal convictions are public record, and felony convictions can harm your reputation in the community. If you hold a professional license, such as attorneys or accountants, you may lose your license if convicted of embezzlement. The conviction can subsequently result in a loss of employment and make it difficult to get another job. 

Defending Against Embezzlement Charges

In order to be convicted of embezzlement, the prosecution has to prove that you intended to steal property that you had access to as a result of being placed in a position of trust. People can be falsely accused of embezzlement as a result of a misunderstanding or in retaliation or other vindictive purpose. 

First, note that you have to have been placed in a position of trust over the embezzled property. For example, you probably can’t charge a janitor with embezzling funds from the petty cash account if he was never given access to the account. While the janitor can still be charged with larceny, the point is that he could not be convicted of embezzlement. 

Generally speaking, most defenses to embezzlement involve showing that you didn’t have the required intent or believed in good faith that you were acting within your authority. Here are some of the ways we can help you establish a defense against embezzlement charges:

  • You were given authority and permission to take the money or property for a legitimate business purpose rather than for your own gain. 
  • You did not embezzle the property – it was lost or put somewhere else. 
  • You did not intend to steal the property – you believed that you were acting within your authority. 
  • Someone else with access to the same property could have stolen it. 

The prosecution has to prove that embezzlement occurred and it was committed by you. Given the complexities of modern businesses, embezzlement charges are an easy accusation to make that are often difficult to prove.

It’s important to remember that acquittal or dismissal of the charges isn’t always possible, and in those cases, a plea bargain may become attractive. A plea bargain may allow you to avoid jail time, fines, or plea to a lesser charge. That said, plea bargains offered by the prosecution can often be skewed in their favor. If you are considering a plea bargain, it’s critical that you work with a criminal defense attorney to make sure the terms of the offer are fair.  

Contact a Knoxville Tennessee Embezzlement Lawyer for Help

Embezzlement charges are serious and can change your life forever. In addition to jail time and fines, a conviction will be on your permanent record and result in irreparable damage to your reputation, your career, and your ability to find a job. However, just because you’ve been charged doesn’t mean you’ll be convicted. A skilled criminal defense attorney can defend you against these charges and help you get a fair result. 

If you’re facing embezzlement charges and don’t know where to turn, contact attorney John Barnes at Barnes Law. Mr. Barnes can evaluate your case and help you understand your options. If you would like a free consultation and case evaluation, give us a call at 865-805-5703 or contact us online

A Drug Trafficking Arrest is a Serious Matter

If you are facing drug trafficking charges, it’s imperative that you speak to an attorney right away. Penalties for drug traffickers typically include substantial fines and jail time, and the sentences imposed often start at several years of imprisonment and get stiffer the more drugs are involved. What’s more, trafficking is not a particularly uncommon charge when a person is arrested in connection with drugs. In fiscal year 2017, nearly 67,00 people faced federal drug charges, and, of those individuals, more than 19,000 were chargedwith drug trafficking.

Drug Trafficking Cases Are Often Federal

While drug possession charges that involve small amounts of drugs are generally handled on a state level, trafficking charges involving larger amounts of drugs are often are prosecuted in federal court. The federal government doesn’t play games with drug traffickers and aggressively pursues harsh legal consequences. For this reason, if you are facing drug trafficking charges, you should speak to an experienced attorney as soon as you can.

When it comes to trafficking and distribution charges, the federal government seeks to impose stiff penalties. These penaltiesapply to the selling, transportation, and importation of drugs such as marijuana, cocaine, heroin, methamphetamine, and other drugs. All of these trafficking charges are felonies, and the government doesn’t even have to prove that you intended to sell the drugs. The trafficking charge is based on the amount of the drugs in your possession, but the amount that triggers a trafficking charge rather than a possession charge depends upon the drug in questions.

Drug Trafficking Charges Carry Significant Penalties

People charged with drug trafficking are quite likely to face prison time. According to the United States Sentencing Commission:

  • The vast majority of drug trafficking offenders – 95.6% – get at least some prison time
  • Roughly three-fourths of those charged with drug trafficking receive sentences either within the sentencing guidelines, at about 39%, or below the recommended sentence range, at nearly, 24% 
  • The average sentence for those convicted of drug trafficking, the average sentence was roughly 70 months. 

The sentences for drug trafficking can be quite substantial. Getting caught with even a relatively small amount of drugs subject to trafficking charges can result in significant legal penalties. Some of these minimum first-offense sentences include the following:

  • For possession of cocaine in the amount of 500 grams to 4,999 grams (or various other drugs in different amounts), the minimum sentence is no less than five years up to 40 years. Fines can be $2 million or more
  • For a second-offense, defendants can be sentenced to no less than ten years and no more than life in prison.
  • For larger amounts of drugs subject to trafficking laws, a first-offense charge can result in a sentence of 10 years or more, while a second offense can lead the prison time of at least 20 years, and up to life imprisonment. Fines could range from $4 million to $10 million.

Defenses to Allegations of Drug Trafficking

If you are facing drug trafficking charges, it’s easy to feel like there is nowhere to turn. If the authorities found you with a sufficient amount of drugs to justify a trafficking case, it’s hard to see how a judge or a jury may even begin to think that the drugs were not yours or that you did not know they were in your possession.

Fortunately, in many cases, there are legal defenses available that may keep certain evidence out of court or case enough doubt on the prosecution’s case to obtain an acquittal at trial. For this reason, if you have been accused of drug trafficking, you should speak to an attorney as soon as you possibly can. Some of the defenses that an attorney may be able to raise include:

  • Alleging a 4thAmendment Violation – The 4thAmendment of the United States Constitution prohibits police from conducting unreasonable searches and seizures of people and property. If they violated your 4thAmendment rights during a traffic stop, a search of your home, or an encounter on the street, any evidence they gathered could potentially be suppressed, meaning that the prosecution could not use it against you. In many drug cases, the suppression of evidence forces the prosecution to drop its case completely.
  • Introducing Evidence that Indicates that You Were Not Aware that You Possessed the Drugs –In order to be guilty of trafficking, you must have knowingly possessed the drugs of which you are accused of trafficking. So if someone planted the drugs in your car, home or on your person, you are not guilty of drug trafficking. Of course, directly establishing your mental state at the time of your arrest is impossible, as the court cannot read your mind. For this reason, casting doubt regarding your knowledge of the drugs must be done through circumstantial evidence. Examples of circumstantial evidence that could be used to cast such doubt include the fact that you were driving someone else’s car, a clean drug test, or the fact that a person who is a known drug dealer or trafficker had access to the place the drugs were found shortly before your arrest.

In some cases, there are no defenses available, and a defendant’s best bet is to negotiate a plea bargain. If you find yourself in this position, it is imperative that you retain an experienced defense attorney that knows how to work with prosecutors. A lawyer will be able to spot weaknesses in the prosecution’s case or ways in which you may be able to leverage insider knowledge of a drug distribution organization that could significantly mitigate the consequences you are facing.

Schedule a Free Case Evaluation with a Knoxville Drug Trafficking Defense Attorney Today

If you have been arrested for drug trafficking, it’s important that you retain an attorney as soon as you can. The sooner a lawyer is representing you, the sooner your rights will be protected. To schedule a free consultation with Knoxville criminal defense lawyer John Barnes, call our office today at 865-805-5703 or contact us online.

Is Drug Court an Option for You?

Tennessee offers drug offenders an option that is not available in most states. This option, commonly known as “drug court,” gives drug offenders who have drug abuse issues the option of avoiding a jail sentence. Formally known as Recovery Court, drug court gives drug offenders who are facing charges of non-violent drug offences the chance to enter a substance abuse program instead of going to jail. Recovery Courts are special courts set up to handle cases of drug offenders through drug testing, treatment, and sanctions, as well as incentives, rather than with jail time. The expectations of participants are high, but the program gives participants a chance to come out of the program drug-free and without a criminal drug conviction.

It’s important to understand that there is no guarantee that anyone gets into the drug court program, and the court has complete discretion as to who to let in. For this reason, if you would like a chance to avoid a criminal conviction by going through drug court, it’s critical that you retain an attorney to represent your rights. Even something as simple as the judge not liking your demeanor in court could keep you out of the program and leave you with a completely avoidable criminal conviction on your record. Fortunately, however, an attorney can guide you through the process and maximize your chances of getting into drug court. To schedule a free case evaluation with a Knoxville drug offense attorney, call Barnes Law today at 865-805-5703 or send us an email through our online contact form.

A Drug Offense Conviction Can Affect Your Life for Years

If you are facing a drug charge, you need to do everything you possibly can to avoid a conviction. To understand why, it’s important to understand that the consequences of a drug offense conviction can go far beyond those ordered by the court, and they can last for much, much longer. If you have drug conviction on your record, that information is available to the general public as well as government agencies who make decisions about your rights or privileges that could have a substantial impact on your rights. In this way, a drug conviction could affect you long after your court-imposed sentence has come to a close. Some of the specific areas in which a drug conviction could have an impact include the following:

  • Employment –Most employers conduct background checks on applicants, and a drug conviction is almost certainly going to appear in even the most superficial of searches. Employers are often hesitant to hire anyone that has a history of drug use, and you may actually be completely disqualified from certain positions if you have a drug conviction on your record. Also, don’t make the mistake of thinking you are safe if you have a good job already – because Tennessee is at-will employment state, your employer could let you go because a drug conviction – or even an arrest.
  • Professional Licensure – If you are planning on going into a regulated profession like law, medicine, nursing, accounting, or engineering, a drug conviction on your record could frustrate your ability to obtain a professional license. In addition, as is the case with employment, a drug conviction could affect a professional license you already have.
  • Housing –Landlords have an interest in preventing illegal activity at their properties, and often conduct background checks on prospective tenants as a result. As result, if you have a drug conviction on your record, it may make it difficult to rent the apartment that you want.
  • Education –Schools are starting to inquire about applicants’ criminal histories, and a drug conviction may not make you an attractive candidate for admission. Furthermore, most colleges and universities have codes of conduct that prohibit students from using illegal drugs or otherwise engaging in illegal activity, and a drug conviction could result in your school imposing significant sanctions. These sanctions could include probation, the loss of a financial aid package or scholarship, suspension, or even dismissal from the institutional altogether.

Tennessee Drug Court Eligibility

To be eligible for “drug court” in the Knoxville area, you must be:

  • An adult convicted in Knox County
  • A nonviolent felony offender charged with certain felonies
  • Willing to participate in the Recovery Court program

There also are conditions that could render you ineligible, including:

  • If you have already been convicted of a violent offense
  • You carried, possessed, or used a firearm or dangerous weapon during the crime for which you were arrested
  • The crime with which you were charged involved the death of or significant injury any person, or the use of force against another person
  • Have one or more felony convictions involving the use of force against another person
  • You refuse to cooperate with the admission screening procedures for the program

If you are eligible for the program, you will be required to undergo a treatment program that is intended you put drug use behind you. If you are able to complete the program, though, you can not only avoid jail time but you also can find a drug-free life, as a significant partof the program is rehabilitation. In fact, it has been found that the program:

  • Reduces drug use among participants through frequent drug testing
  • Results in fewer drug crimes by people participating in the program
  • Reduces tax-payer costs by cutting jail time for program participants
  • Gives program participants intensive supervision and monitoring
  • Gives program participants alternatives to lifestyles involving drugs by giving them supervision, treatment, education, and counseling.

If You Have Been Arrested on Drug-Related Charges in the Knoxville Area, You Should Consult with Criminal Defense Attorney John Barnes at Barnes Law

If you have been arrested on drug charges, you have options to avoid having a drug-charge conviction on your record.  Tennessee offers options a program that can keep you out of jail. To find out whether you can enter such a program, contact Barnes Law. He has the experience to help you through your situation. For a consultation, contact Barnes Law at 865-805-5703 or through the firm’s online contact form.

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