Kane & Crowell

The official blog of Kane & Crowell, a Lebanon, Tennessee Law Office.

No More Revoked Licenses for Not Paying Fines

No More Revovoked Licenses for Not Paying Fines- No More Revovoked Licenses for Not Paying Fines-

It has been a long-standing practice in Tennessee that a person’s driver’s license can be revoked when they do not pay court costs or fines. While some may advocate for this policy as a way to make sure a person is responsible, it is completely counter-productive, as U.S. District Judge Aleta Trauger just stated in a recent ruling.

A simple misdemeanor can carry court costs and fines of $500. Someone with multiple misdemeanor convictions or a felony convictions can have fines of thousands of dollars. Many people find it difficult to pay these fines as they have had to pay for legal representation, missed work for court dates and some have served time in jail. The balance of the costs and fines continues to increase when someone isn’t able to pay. The state’s practice has been to revoke a person’s driver’s license in order to coerce them into paying court costs and fines. This practice is ineffective because, if people cannot drive, they will not be able to work and will never be able to pay their balance in full. This scenario commonly leads to a person’s license being revoked for years. As a result, many people are forced to drive without a license just to get back and forth to work, which can lead to further criminal charges such as driving on a revoked license. A new charge would also incur additional court costs and fines. This creates a cycle that many people find difficult to navigate. Judge Trauger acknowledged this in the recent ruling.

Judge Trauger ordered that the over 100,000 people who have been affected by this procedure in Tennessee can begin the process of getting their licenses back. If your license was revoked or suspended due to nonpayment of court costs or fines, contact us at (615) 784-4801 to discuss how you can have your license reinstated. 

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Notable Tennessee Bills - 2018 Legislative Session

 

            As of present, the Tennessee Legislature is in session, and there are a number of interesting bills that have been proposed and await debate, voting and eventual enactment or abandonment.  In today’s blog post, we take a look at some of these bills that could eventually become law. 

            House Bill 1698 is certainly a bill to watch over the next few weeks, as it could result in notable changes to Tennessee DUI laws.  The bill, sponsored by Rep. Bill Hulsey (R – Kingsport) and Rep. Frank Nicely (R-Strawberry Plains), would give criminal judges across the state the discretion to ban those convicted of DUI from purchasing alcohol.  Upon first offense conviction, the judge would have the discretion to bar alcohol sales to the defendant for one year.  Upon a second conviction, a judge would have the discretion to bar alcohol sales to the defendant for two years.  The bill originally gave a lifetime ban of alcohol sales upon an individuals third conviction for driving under the influence, as well as made the sale of alcohol to those convicted and barred from purchasing alcohol a Class C misdemeanor.  This bill was revised by Rep. Michael Curcio (R – Dickson) to remove the lifetime ban and the Class C misdemeanor punishment to sellers of alcohol.  The bill is currently before the House Finance, Ways and Means Subcommittee.  If passed, it could become law as soon as July 2018.    

            House Bill 1862 is an important bill for criminal defendants who enter into pre-trial diversion.  The bill, sponsored by Rep. Raumesh Akbari (D-Shelby), Rep. William Lamberth (R-Sumner), Rep. Karen Camper (D-Shelby), and Rep. Barbara Cooper (D-Shelby), would reduce the cost of expungement for a criminal offense upon successful completion of pre-trial diversion, from $350 to $180.  This bill would make it easier for defendants to have their pre-trial diverted offenses expunged and removed from their record, and ideally, less likely to suffer adverse consequences as the result of having a criminal record. 

            House Bill 2068 would create a new class of criminal offenses related to the false and improper marketing of alcohol and drug treatment services.  Unfortunately, Tennessee has struggled with the spectre of opioid abuse, and as a result a wide variety of treatment programs (both legitimate and illegitimate) are advertised in the state.  This bill, sponsored by Rep. Harold Love (D-Davidson) and Rep. Michael Curcio (R-Dickson) would create criminal offenses for the false or misleading advertising of alcohol and drug treatment facilities or giving or receiving financial incentives or benefits for being referred or referring individuals into such an alcohol and drug treatment facility.  Such laws are undoubtedly designed to prevent opportunistic companies using questionable marketing tactics from taking advantage of individuals suffering from alcohol or drug dependency.  The laws range in severity from Class A misdemeanors to Class E felonies. 

            These bills are only but a few of the many bills presently making their way through the House of Representatives and Senate.  For more information about these bills, or other bills of the 110th Legislative Session, visit http://www.capitol.tn.gov/ or https://legiscan.com/TN/trends

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Domestic Violence: What you should know

Image: Domestic Violence Statistics  

            Every year in America, ten million (10,000,000) men and women are the victim of domestic violence.1  In 2014, 74,023 domestic violence crimes were reported to law enforcement agencies in Tennessee.2  Thousands of other incidents of domestic violence go unreported. 

            Law enforcement and the courts of the State of Tennessee approach domestic violence issues very seriously.  Accordingly, there are a number of statutes about domestic violence that Tennesseans should be aware of. 

            Often, when domestic violence is alleged and an arrest is made, the individual arrested will be held in jail for a minimum of twelve (12) hours.  Equally often, when such an individual makes bail and is granted release, a court will issue bond conditions which require the arrested individual to stay away from the victim.  For parties who reside together, this can mean no longer residing in the same house or apartment. 

            In addition, those who plead guilty or are convicted of domestic assault are prohibited from possessing firearms or acquiring firearms in the future in addition to the other statutory penalties, including misdemeanor imprisonment and fines.  Multiple convictions for domestic assault may result in felony penalties, including imprisonment. 

            Certain individuals, including victims of stalking, domestic abuse, or sexual assault may seek an order of protection from a court to prevent their attacker from coming about their person or contacting them.  Individuals against whom an order of protection is issued may not possess firearms and are required to transfer any firearms in their possession to a third-party within forty-eight (48) hours of the issuance of the order. 

            Individuals who violate an order of protection are subject to arrest and a mandatory twelve (12) hour hold in jail.  Violation of an order protection is a Class A misdemeanor, and any sentence imposed must be served consecutively to any sentence for a related domestic violence crime based upon the same factual allegations. 

            Attorneys at Kane & Crowell Family Law Center are experienced in both domestic and criminal matters related to domestic violence.  If you are interested in information about divorce or child custody, or if you have been arrested and charged with domestic violence, call us at (615) 784-4800. 

            If you, a friend, or a loved one, have experienced domestic violence, you have options.  Contact The National Domestic Violence Hotline at (1-800)−799−7233, or HomeSafe (for Wilson County residents) at (615) 444-8955.  You can also contact the Wilson County District Attorney’s Office at (615) 443-2863 or the Wilson County Sheriffs Department at (615) 444-1412 to learn more about orders of protection.

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1 https://ncadv.org/statistics

2 https://ncadv.org/assets/2497/tennessee.pdf             

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Going on Your Permanent Record: the Juvenile Justice System

The Wilson County Criminal Justice Center in Lebanon.

           The term “juvenile” is sometimes associated with thoughts of immaturity, inexperience and curiosity. Juveniles often make mistakes from which they can learn, but may have lasting consequences. Thankfully, in Tennessee, there are ways to keep a juvenile’s criminal record confidential to prevent harm to their future.

            In Tennessee, an arrest as a juvenile should not show up on a background check. However, there is no guarantee that will not happen. Sometimes a simple clerical error can cause a juvenile arrest to show up on a background check. However, juvenile convictions, or guilty pleas, can show up on background checks. In order to prevent an arrest or conviction from showing up on a background check, a juvenile’s parents, guardian or attorney should ensure the juvenile’s criminal record is expunged, or “wiped clean” as soon as possible. Some offenses, such as sexual crimes or certain felonies, are not able to be expunged. For all others, records can be expunged as long as the juvenile meets certain criteria, such as not getting into trouble and making good choices for one year from the date the court entered the judgment.

            To have a criminal record expunged, a juvenile’s parents, guardian or attorney must petition the court on his/her behalf for an expungement. Most courts require an expungement fee to be paid before it can be finalized. Once the expungement order is signed, the juvenile’s parents, guardian or attorney should keep a copy of the order as they cannot obtain another copy in the future, if needed.

            Many people ask if a juvenile has to answer “yes” when asked if they have been convicted of a crime. The short answer is, an arrest is not a conviction and is confidential but a conviction may show up on a background check unless it is expunged. If the record has not been expunged, it’s usually best to answer “yes” and then explain the situation later. However, before you answer “yes”, it’s best to consult with a criminal attorney experienced in juvenile matters. At Kane & Crowell, our attorneys have experience dealing with matters of juvenile justice.  Contact us at (615) 784-4800 to learn more. 

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Hands-Free or Hands Off!

A woman uses a cell phone while driving           

          In 2018, drivers across Tennessee have at least one new law to be wary of.  Beginning January 1, it shall be a Class C misdemeanor to operate or talk on a hand-held cellphone while in a school zone marked by flashing lights.  This offense is punishable by a $50 fine. 

            However, adult drivers (18 or older) may operate a motor vehicle in a school zone and use a “hands-free” cell phone device. 

            Unfortunately for drivers under 18, they cannot use either a conventional cell phone or “hands-free” device while in a school zone. 

            These new laws supplement the existing laws regarding cell phones and driving, so texting and driving remains illegal. 

            Don’t get caught this year with your head in your apps.  Seems better to spend $50 in the App Store than on a traffic fine! 

            If you have a legal issue requiring representation in criminal matters, contact attorney Ashley Jackson at (615) 784-4800.

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Have a Safe and Happy New Year's Eve

Partiers celebrate New Year's in Times Square

       Happy New Year from Kane and Crowell! New Year’s Eve is, arguably, the Tennessee Highway Patrol’s busiest weekend when it comes to patrolling and ensuring safe driving. Every year, THP conducts multiple roadblocks around the New Year holiday. Some of these roadblocks are announced ahead of time and some are not. THP has announced the following roadblocks in our area:

·         12/29/2017 Macon County Driver’s License Checkpoint at Sneed Blvd @ Main Street

·         12/31/2017 Wilson County Sobriety Checkpoint at US 231 / LOJAC 2147 Murfreesboro Road

·         12/31/2017 Dekalb County Sobriety Checkpoint at SR 56 @ Putnam County Road

You can see all other announced checkpoints here: https://www.tn.gov/content/dam/tn/safety/documents/dec2017_checkpoints.pdf

If you plan to celebrate New Year’s Eve in downtown Nashville, the Davidson County Sheriff’s Department is offering free sober rides from 10 p.m. New Year’s Eve until 2 a.m. New Year’s Day from pickup locations at Broadway and 2nd Avenue South and 4th Avenue North and Harrison Street near Bicentennial Mall.  Find more information on the sober ride program here: http://www.wsmv.com/story/37152963/sheriffs-office-employees-offering-free-sober-rides-on-new-years-eve

  If you drink this New Year’s, don’t drive.  If you find yourself in a situation that requires legal assistance, call us at (615) 784-4800.  We wish you a safe and happy 2018! 

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Diversion: What you should know

For individuals charged with certain crimes, diversion of these charges may be an option.  Diversion is a creation of the Tennessee Legislature and is governed by statute.  Tennessee allows principally two types of diversion: pre-trial diversion and judicial diversion. 

In pre-trial diversion, an individual charged with certain crimes may, with the consent of the District Attorney General, have their case suspended with conditions. An agreement is drafted between the Defendant and the District Attorney, and generally contains conditions requiring that the Defendant not commit any criminal offense, the Defendant avoid certain activities related to the charge, the Defendant make restitution to any victims, or that the Defendant pay court costs, among other conditions.  Additionally, the agreement may require the Defendant to submit to counseling, payment of supervision expenses, or if the charge involved drugs or alcohol, require the Defendant to keep and wear an alcohol monitoring device.  Pre-trial diversion is not a dismissal; rather, prosecution of the case is suspended for up to two (2) years.  The trial court may dismiss the charge ninety (90) days after the expiration of the suspension period, provided the Defendant has complied with all conditions of the diversion agreement.  If the Defendant violates the diversion agreement, the prosecution of the crime will be resumed.    

In judicial diversion, the Defendant conditionally pleads guilty or no contest, however entry of the judgment is deferred and the Defendant is placed upon probation.  Like with pre-trial diversion, not all crimes are eligible for judicial diversion.  The probation ordered by the Court cannot exceed the maximum sentence for the crime the Defendant is charged with.  In addition, the Court may order any other reasonable conditions as it sees fit as a part of the probation, including ordering alcohol monitoring or temporary confinement in jail for a period not to exceed thirty (30) days.  The Defendant must also pay supervision fees for the probation, and the granting of the diversion is expressly conditioned upon payment of such fees.  Judicial diversion is not a dismissal; however, upon successful completion of the probation period, provided the Defendant has complied with all terms and conditions of probation, the Court shall discharge the Defendant from probation and dismiss the underlying charges.  An individual who successfully completes judicial diversion may also have the charge expunged upon application to the Court and payment of any fees or outstanding court costs.  If the Defendant violates probation, the prior guilty or no contest plea will be entered and the Defendant will be sentenced accordingly. 

Diversion is a helpful option for individuals charged with certain crimes, and may allow them to avoid both jail time and having a conviction on one’s record.  However, there are restrictions as to the types of crimes eligible for diversion. Further, an individual seeking diversion cannot have had a prior diversion. 

Our attorneys have successfully entered diversions for our clients in various criminal cases.  Call attorney Ashley Jackson at (615) 784-4800 for more information if you are charged with a crime for more information about criminal representation.    

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Miranda Rights: What are they?

Image: Miranda warning card

 

“You have the right to remain silent.  Anything you say, can and will be used against you in a court of law.”  Those of us who routinely watch police dramas know that individuals suspected of crimes have  “Miranda rights.”  Just hearing the phrase “Miranda rights” conjures up images of a police officer hauling away an individual in handcuffs or a defendant sweating in a dark interview room while being interrogated by a tired looking police detective.  While many people know the basics of Miranda, you may not know the historical evolution and the extent of Miranda rights. 

Concerned by the techniques and practices law enforcement used in questioning and interrogating individuals in police custody in the mid-20th Century, the United States Supreme Court laid down the landmark opinion in Miranda v. Arizona in 1966.  Ultimately, the Court mandated the use of “procedural safeguards” to protect a defendant’s constitutional rights against compelled self-incrimination and right to counsel.  The “procedural safeguards” required that a criminal accused be informed of his right against self-incrimination (or to remain silent) as well as his right to counsel (or be appointed one in the proper case).  If a defendant was not advised of these rights, then any confession obtained as the result of questioning could not be used in the prosecution’s case.  In legal jargon, these “procedural safeguards” became known as Miranda rights, after the name of one of the criminal defendants in the landmark case, Ernesto Miranda.  Subsequent to the Miranda decision, police departments around the country began issuing cards specifically spelling out Miranda rights to their officers, to be read to individuals in police custody. 

An individual’s Miranda rights encompass two basic constitutional rights: the right against compelled self-incrimination (often referred to as “pleading the Fifth”) and the right to counsel.  Once in police custody, an individual has both the right to not speak to police, as well as the right to request the presence and assistance of an attorney during any subsequent questioning.  It bears noting that Miranda rights only attach when an individual is both in police custody and is subject to interrogation or a similar adversarial questioning practice.  Many police-citizen encounters may involve one of these prongs or invoke a similar situation, but Miranda is not required.  For instance, police are generally not required to render Miranda warnings when asking simple questions, during basic traffic stops (for speeding, DUI, seatbelt violations) or immediately after arresting an individual if no interrogation or questioning is conducted. 

As the Supreme Court recognized over fifty years ago in Miranda v. Arizona, knowledge of one’s constitutional rights during the criminal investigation and prosecution process is critically important.  If you are arrested or charged with a crime, know that the attorneys at Kane & Crowell Family Law Center are experienced in the criminal justice system and stand ready to protect your rights.  Call attorney Ashley Jackson at (615) 784-4801 for more information about legal representation in a criminal matter.    

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Understanding Criminal Law: Retirement vs. Dismissal

Image: gavel and judge's quarters

  If you have a criminal case, sometimes either a retirement or a dismissal may be obtained. The laws surrounding both can be confusing, so hiring an experienced criminal lawyer to navigate the system is often an advantage. Below is a brief summary of the two.

  A dismissal is exactly what it sounds like; your case is dismissed in its entirety. It is rare to walk away with an outright dismissal. However, an outright dismissal does happen on occasion, and having a local lawyer fighting on your behalf is a good step in that direction.

  A retirement, on the other hand, is a continuance with a dismissal at the end. Once the criminal case has been continued for some time, it is dismissed, as if it never occurred. A retirement may be conditioned upon certain factors being met. Further, at the end of a retirement, when the case is dismissed, a person is eligible to have their criminal record expunged.

  The difference between a retirement and a dismissal is that a dismissal completes your case right away, while a retirement dismisses your case after a set period of time. It is important to note that a retirement may also be conditioned upon certain requirements, including community service, probation, payment of fines, or other tasks, which must be completed before your case is dismissed.

  It is possible to have a criminal case andget a retirement, or even a dismissal. However, these results depend upon the facts of each case. Consulting an experienced local lawyer, who knows their way around the court system is a good start in that direction. Call us for a consultation at (615) 784-4800.

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Know Before You Post: Social Media, Search Warrants and Your Case

 
 
IMAGE
 
Are you aware that what you post on social media may be used against you in your case?  Likewise, you may use another party's social media posts against them in your case. However, obtaining proof of these posts is not always easy. Ideally, you would be able to get an image of the posts. A subpoena or court order may be needed to recover posts that have been deleted or hidden. Some social media companies have argued it violates people's constitutional rights to force them to provide someone's social media account information or history. Here is a link to an article regarding a recent NY Court of Appeals decision on whether Facebook must give access to their users' posts. The Court decided Facebook must comply with requests to access user data. https://www.nytimes.com/2015/07/22/technology/facebook-loses-appeal-on-new-york-search-warrants.html?smid=tw-share
 
  At Kane and Crowell, we are ready to advise you on how social media posts and information may specifically affect your case. Call us now to schedule a consultation. (615) 784-4800
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Implied Consent: Do You Know Your Rights?

   Image: an officer is writing a man a ticket

 

This topic has been trending lately due to the disturbing video of a Utah nurse being arrested for not drawing the blood of an unconcsious patient for an officer without a warrant that has gone viral. Many people are not sure what their rights are when it comes to constitutional searches and seizures.

  Have you ever had an officer ask if you "consent" to allowing them to do a search? Are you aware that without having probable cause to believe an offense was committed, officers are not allowed to conduct a search without a search warrant? As usual, there is an exception to this law. It is called the good faith exception. In Tennessee, officers are allowed to collect evidence that may otherwise be found to be inadmissible in court if they believed in good faith that all of the circumstances gave them probable cause to do so. 

    There are two types of consent: actual and implied. Actual consent is when you expressly give consent, either orally or by writing. Implied consent is when it appears from all of the circumstances that consent has been given. Tennessee has a statute (55-10-406) that allows an officer of the law to order a test to check the alcohol or drug levels in a driver's blood if they have reasonable grounds to believe the person was driving while under the influence. The officer must explain to the driver the consequences for refusing to allow such a test. The minimum penalty of refusing is loss of license for one year. If the driver still refuses to give actual consent to the test, the driver can be charged under this statute and the test can still be administered.

   Kane and Crowell attorney Ashley L. Jackson had the privilege of hearing oral arguments on this issue in front of the Tennessee Supreme Court in the case of State of TN v. Corrin Reynolds. Essentially, the issue in this case was whether the good faith exception trumps someone's constitutional rights to be free of illegal search and seizure. Does a blood test for drugs or alcohol count as a search? And, if so, is a warrant required to conduct that type of search? The Supreme Court decided that a warrantless blood draw violates a defendant's constitutional rights. However, the Court adopted the good faith exception that the evidence from a warrantless blood draw can still be used if the officer was acting in objectively good faith.

  If you are a defendant and have faced an unlawful search or seizure, let us advise you as to your rights and the next steps. Call us at (615) 784-4800.

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Need Your Criminal Record Expunged? Here's How!

Image: Al Capone's Criminal Record  

 

For many people with a criminal record, their convictions affect future employment and business opportunities. For people charged with felonies, their criminal record prevents them from owning a firearm or traveling outside the country. Having a clean criminal record is also important due to many apartment and housing complexes requiring a background check before allowing a person to live there.

  In order to avoid all of the above obstacles, you should attempt to have your record expunged as soon as possible, depending on your case. Expungements in Tennessee are governed under the statute T.C.A. 40-32-101. This statute states that in order to be eligible for expungment, defendant must have:

  • No other convictions in any jurisdiction, 
  • Have completed all terms of probation, parole or imprisonment must be completed and 5 years must have lapsed since the completion of the sentence, 
  • Have met all conditions of release, 
  • Have a copy of the record of the conviction to be expunged, 
  • Have paid all fines, restitution and court costs, 
  • Conviction must be for a Class E felony included on the inclusion list or a misdemeanor not included on the exclusion list, and
  • A government issued ID. 
  The list of included and excluded offenses can be found on the Tennessee District Attorney's website: http://www.tndagc.com/expunge/Expungement%20Checklist.pdf.
 
  Once you find out if you are eligible for expungement, you must petition the court for an expungement.  A licensed attorney experienced in criminal law can assist you in having your criminal record expunged. Contact our office at (615) 784-4800 for assistance with your case.
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Lower Expungement Fee

A man fills out a form. 

 

In Tennessee, certain charges and convictions are eligible to be expunged, or erased, from your record…for a price. The previous fee to have your record expunged was $450.00. Many people could not afford to pay the expungement fee after having also paid court costs, fines and probation fees. Unfortunately for these individuals, charges and convictions would remain on their record simply because they did not have the funds required.

  Fortunately, that recently changed when Governor Haslam and the Tennessee Legislature reduced the expungement fee from $450.00 to $270.00. Hopefully this will make it easier for those with simple misdemeanors to start fresh with a clean record. Read more about the change here: http://www.newschannel5.com/news/haslam-signs-bill-reducing-costs-of-wiping-criminal-records

If you have questions about having your record expunged, call us at (615) 784-4801.

 

 

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