Today, the Sixth Circuit Court of Appeals overruled an award of $200,000 to a pregnant inmate who was shackled immediately before and after giving birth.  Villegas v. Metro. Gov’t of Nashville, -F.3d-, No. 11-6031 (6th Cir. March 4, 2013).  The appeals court simply decided that the case should have been decided by a jury rather than a judge.  Thus, the claim remains intact and will likely continue following a remand back to the trial court.

Juana Villegas was arrested for driving without a valid license and, once in jail, was determined to be an undocumented immigrant.  As a result, she was classified as a “medium-security inmate.”  A few days later, while still in jail, she began to deliver her child and was transported to a hospital in shackles.  The shackles were removed while she gave birth, but she was restrained to the bed thereafter.

In 2011, Federal District Judge William Haynes, Jr. granted summary judgment to Villegas for her claim that—as a matter of law—the jail guards were “deliberately indifferent” to her medical needs by shackling her.  After a three day trial on damages, a jury awarded her $200,000.

In a 2-1 ruling, the Sixth Circuit disagreed with Judge Haynes’s legal ruling.  The majority explained that her claim has two components: (1) whether Villegas faced a “substantial risk to her health or safety” from being shackled and (2) whether the guards were actually aware of that risk.

The majority recognized that shackling a pregnant detainee while in labor may violate the Constitution but concluded that the right to be free from such treatment is “not unqualified.”  Specifically, there may be situations in which the inmate poses a threat to herself or others or may be likely to escape.  Since Villegas was a “medium security” inmate facing deportation, the court concluded that a jury could find that guards were entitled to restrain her.  Similarly, the court concluded that the guards may not have actually known the risk to Villegas would outweigh the chances of her trying to escape.

The dissenting judge concluded that the trial court’s ruling should stand because none of the disputes of fact are “material” to the case, making a judicial ruling appropriate without the need for a jury to weigh the jail’s liability.

This holiday there will be a lot of law enforcement officers on the road. They will be looking to arrest folks who are under the influence.

With certain exceptions most people under suspicion of driving under the influence will be given the option of taking  the breath test. What should you do?

If you do not take the test you could lose your license anyway under our “implied consent” law.  If you do not take the test the officer can still arrest you if the officer has probable cause to think you are under the influence.

If the officer can secure a search warrant the officer can compel you to take a blood test. This option is not always available since the magistrate  may not be immediately accessible.

My advice is to go on and take the test if you have been responsible enough to have consumed only a few beverages.

There are many factors which influence the test result such as body weight and how long it has been since you last had a drink.

A low number or one “on the edge” can be strong evidence that you are not guilty of driving under the influence. That evidence is not available if you refuse the test.

Some folks are afraid that the test is not accurate. That is a well-founded concern up to a point. There are certain margins of error which will occur but not enough to justify the refusal to take the test.

The officer should give you the option of a blood test if you are willing to pay for it. The blood test is, in my view, far more accurate than the breath testing machine.

There are some other considerations  that will influence if the officer will even request a test. These include how you react to the officer to begin with. Do not ask a lot of questions. You are there to answer questions not ask them. And do not say, “I only had two beers.” That is a sure sign of deception.

Be certain that you have your license and registration with you and that they are current.  Be sure you have current proof of insurance.

Be certain all your equipment is functioning on your vehicle. You do not want to be “rolling probable cause.”

Make sure you are functioning as well. Stay off the cell phone while driving. Don’t text and drive.

Taking  the test is usually the correct choice.

Not drinking and driving is an even better option. Be safe and have a good holiday.

David Raybin

Can the police subpoena your emails to your spouse?  Can your emails be subject to a subpoena?

Marital Privilege  Doctrine

Are your emails to your spouse protected when written on a work computer?  According to one very recent federal court ruling, not necessarily so.  United States v Hamilton, -F.3d-, (4th Cir. Dec. 13, 2012).  Although the case came out of Virginia, the same ruling will probably apply to the rest of the country since the decision was based on federal law.  This important case involves an interpretation of the marital privilege doctrine and how that applies in the Internet age.

Legislator Sends Incriminating Emails to his wife.

A member of the Virginia legislature — Phillip A. Hamilton — was found guilty of bribery and extortion for arranging funding for an education center at Old Dominion University in exchange for a job.  He was sentenced to 9 years in prison.

Hamilton argued on appeal that several  incriminating emails he sent to his wife should not have been allowed into evidence since they were privileged marital communications.

The trial court found that Hamilton had not taken any steps to protect his emails when he was put on notice that the employer had a policy that all emails were subject to inspection.

Waiver of marital privilege

The appellate court held that Hamilton had waived the marital privilege.  The emails were admissible and the conviction was affirmed.

Why was the Email Admissible?

The appellate court found that in an era in which email plays a ubiquitous role in daily communications, Hamilton’s arguments caution against lightly finding waiver of marital privilege by email usage.  The court found, however, that “Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer’s policy permitting inspection of emails stored on the system at the employer’s discretion.”

Employer Email Policy

Courts have held that a person did not have an “objectively reasonable” belief in the privacy of files on an office computer after his or her employer’s policy put the employee  ”on notice” that “it would be overseeing his Internet use.” Factors to be considered in determining privacy include the employer’s maintenance of relevant usage policy, monitoring of employee email, third-party right of access to email, and employees’ awareness of the policy as key factors suggesting no expectation of privacy.  Courts have made clear that a party waives the marital communications privilege when the employee “fails to take adequate precautions to maintain confidentiality.”

What is the law in Tennessee?

Communications between spouses have traditionally been considered privileged communications. It is part of the doctrine that spouses normally can’t testify against each other.

What happens to written or emailed communications? The courts usually give the same protection to written communications that apply to verbal communications.

Emails are written so they will be given the same protection as other documents. However, a privilege can be waived.

Waiver by Employer Policy

Emails are not private when the employer has a policy of monitoring emails. There is nothing illegal about that since the employee  tacitly consents to this as a condition of employment. Indeed, the email server belongs to the employer, so the employer can review what is on the servers. Thus, the emails can be reviewed by the employer.

Once this inspection policy is in place there is no privacy and emails can be subject to a police search warrant or even a subpoena in a civil case!

No Privilege.

Once the emails are obtained by the court, the emails can be used in evidence and no privilege applies. This includes traditionally privileged communications to a spouse, a lawyer, or a minister.

How to Protect Your Communications.

Do not use work-based emails for private communications that you want to stay private.

Employer Advice

To keep from being sued by your employees, make the employees aware in writing that all work-based email traffic is subject to inspection and there is no privilege available.  Post the notices and send the employees emails to that effect.

Tennessee Code Annotated 68-104-210 makes it a Class B Misdemeanor for unlicensed individuals to set off fireworks.   A Class B misdemeanor is punishable by imprisonment of up to six months and a fine not to exceed $500.

In 1995 after the bombing of the federal building in Oklahoma City, Oklahoma, Barclay served as a first-responder. As a result of working in the aftermath of the attack, clearing debris, offering aid to the wounded and recovering the dead, Barclay was diagnosed with post-traumatic stress disorder. Because of this affliction he has become unemployable and is thereby authorized to draw VA compensation at the 100 % disabled rate. Barclay and his attorney, Michael D.J. Eisenberg, have argued that Title 38 U.S. Code, sect. 5301(a), which makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure,” would also bar the inclusion of disability pay in spousal support calculations.

Eisenberg maintains that disability pay is meant to compensate the veteran for loss of income due to a service-connected medical condition. VA compensation tables set payments higher if the veteran is married, in recognition of the spouse’s sacrifice in living with a disabled individual. This increase in payments ends in the event of a veteran’s divorce. Therefore, the spouse should no longer have a direct claim on the compensation anymore. Although Kay claims to have disabilities herself, Eisenberg asserts that rather than seek support from VA military benefits she should enroll in a state or federal program herself, such as Social Disability Insurance. Moreover, Kay does not claim to have disabilities resulting from military service, which is the group of people VA benefits target.

Currently, Arizona, Texas, and Vermont are the only states that offer protections similar to the federal law. Tennessee is a state that follows the Oregon model, which is based on a 1987 Supreme Court ruling which held that VA disability benefits are intended to compensate the veteran, as well as the family. This position is furthered by the Uniformed Services Former Spouse Protection Act (USFSPA), which was passed in 1982 and permits courts to consider “disposable” military retired pay as martial property to be considered in determining alimony or child support.

It is also argued by Barclay in his petition that the USFSPA excludes disability compensation from the definition of “net disposable income.” Also mentioned is a 1989 Supreme Court case that ruled in favor of a retiree whose goal was to reduce his spousal support upon winning a disability award from the VA. When the VA benefits began to be withdrawn by the veteran, his military retirement that he shared with the former spouse began to decrease. Although Barclay is not a retiree but a veteran, he claims he and all veterans should be covered by the protections of disability pay.

Another advocate of veterans having their disability benefits protected from being used as divorce alimony is Matt Kozatek, a Berkley resident and Army veteran. He is currently involved in his own divorce proceedings and is worried he could lost his veterans military pay. Similar to Barclay, Kozatek’s main concern is that men and women are returning from combat with life altering disabilities, are being divorced by their spouses, and are forced to fight another war to keep from losing their disability compensation. He works with Operation Firing for Effect, a national advocacy group “devoted to the protection and improvement and entitlements and services earned by our men and women in uniform.”

There is clearly a discrepancy between the state and federal interpretation of the definition of VA disability compensation. Likewise, not even all the states have come to a common agreement and what to consider VA benefits. Although four justices have agreed to review Barclay’s case, it remains uncertain if the Supreme Court will decide to hear arguments and clear the issue up once and for all.

Sources:

Ruling sought on split of military benefits in divorce

Berkley man fights for veterans to keep disability comp during divorce

Uniformed Services Former Spouses Protection Act (USFSPA): 10 U.S.C.A. § 1408

38 U.S. Code, sect. 5301(a)

By: Eston Whiteside

Under Tennessee law, a warrantless search or seizure may be conducted and any resulting evidence eligible for consideration if one of the narrowly defined exceptions is applicable.  In the landmark case of Terry v. Ohio, it was determined that an investigatory stop and frisk was one such an exception to the warrant requirement.  Likewise, for an officer to perform an investigatory stop, he must have reasonable suspicion, supported by specific and articulable facts, to believe a criminal offense has been or is about to be committed.

Despite the holdings of the lower courts, the Tennessee Supreme Court reached a different conclusion with the support of the U.S. Supreme Court ruling in Florida v. J.L.  Ultimately, the anonymous call did not establish the level of reasonable suspicion necessary to satisfy an exception to the warrant requirement. The 4^th Amendment protections against unreasonable searches and seizures require the discovery of circumstances that substantiate anonymous claims of illegal activity to justify the stop and frisk of an individual.  Therefore, because possession of a firearm alone is not necessarily a crime there was no allegation of unlawful conduct to substantiate. There were no grounds to stop and frisk Williamson and the evidence (gun) should have been suppressed.  Furthermore, the Tennessee Supreme Court agreed with the U.S. Supreme Court’s analysis in Florida v. J.L. in declining to adopt a “firearm exception” to the standard for an investigatory stop.  Such an exception would permit a stop and frisk on the mere allegation of an illegal gun, regardless of the reliability of the accusation.  The Court stated that allowing a frisk on such grounds would enable a person to harass another by anonymously creating a false report, in turn prompting an invasive and embarrassing search by police.

Sources:

Florida v. J.L., 529 U.S. 266 (2000)

The Fourth Amendment

State of Tennessee v. Guy Alvin Williamson (2012)

Supreme Court Rules Police Must Corroborate Anonymous Allegations Before Conducting a Stop and Frisk

Tenn. Supreme Court says police must corroborate anonymous tips

TN high court rules anonymous tips not enough to justify police frisk

Terry v. Ohio, 392 U.S. 1 (1968)

Posted By: Eston Whiteside

1. Representation is more than just “going to court.” You must build a relationship with your client from the beginning of the case. We all have experienced the situation where the client is hesitant to accept critical advice as to how a case might be resolved. This is frequently caused by a failure to recognize that the client may not do what you think that he or she should do at the critical end of the case because you have failed to build a relationship at the beginning of the representation. The best example of this is my observation of an attorney berating her client in the courthouse: “Larry, Larry, why will you not take this wonderful deal?” The client responds that his name is not Larry but, Steve, and if the lawyer was not even aware of the client’s name, how could the lawyer make an appropriate recommendation as to the resolution of the case. Point made.
2. It is important that you recognize that the client is under a tremendous amount of stress. You may be the world’s most experienced lawyer in car wrecks and you can do them in your sleep. However, the client has no experience in this since it is her first case. If you were going in for brain surgery tomorrow you would be “stressed out” as well. The person sitting in your office is functionally going in for brain surgery.
3. Discuss the issue of “stress” with your client and explain that you are sensitive to this fact. The client also needs to recognize that he or she is under a tremendous amount of stress and will irritate other family members with abnormal behavior. The client is at high risk of “totaling” his car or getting fired from her job. Discuss this collateral issue and suggest counseling with a trusted person, a minister, or mental health professional.
4. Without doubt, the most important component of any case is the “client interview.” While we always take appropriate time to discuss the case with the client, there are always facts that come up throughout the representation that might be helpful to know. We just don’t seem to find the time to learn all we can. One valuable tactic is to have your client write you a letter about the “story of my life.” You can read faster than they can speak. Moreover, the client has time for reflection. The client will appreciate that you desire this level of detail. The letter should always begin with birth and run all the way up through the moment he walked into your office with particular emphasis on the facts surrounding the litigation. I have never failed to obtain valuable information from such letters. Years ago I was representing a bus driver who had run over and killed two young boys while he was experiencing a diabetic episode. I interviewed him for hours and, among other things, learned that he had served in the army. That was about as far as I went with that fact since his service had occurred decades ago. It certainly did not seem “relevant” to this case. He began his letter to me with the fact that this accident with the boys was the “second scariest thing that ever happened to him in his life.” This begged the obvious question. It turns out that the client had been a medic in Vietnam and had won a medal for bravery for saving his entire platoon during an ambush. Needless to say, this formed the central part of my case when it came to character proof. One of the worst witnesses against us “flipped” when he learned of my client’s service since the witness had also been a medic in Vietnam and they formed an instant bond. My interviews with the client were insignificant compared to the valuable fact I learned by having this bus driver write me a letter about the story of his life. I now do this in every case. You should as well.
5. While you may, of necessity, interview the client in her own home, interviews should normally be conducted in your office. If that is not possible, meet in a restaurant if appropriate but never conduct an interview in your home. You want your professional and personal life to be separate. When conducting cases out of town I have found other lawyers to be most accommodating such as offering a conference room for an afternoon meeting with a client. Follow up with a thank-you note to the lawyer and include a gift certificate to Starbucks.
6. Keep a list of client referral sources and send each a holiday gift at the end of the year consisting of anything but fruitcake.
7. A client interview should last no more than two hours. A series of interviews is usually more productive. Be careful of information overload. While we want to know the “whole story,” one should always work from the big to the small.
8. Half-way through the interview walk out of your office for a few minutes. The client wants to look at your diplomas and certificates. Give them that opportunity. Needless to say, have something appropriate on the wall.
9. When you return to your office, carry a glass of water. The client will need it by now and will appreciate the gesture.
10. Introduce your client to other members of your office that they may deal with. Your staff will feel part of the team and will begin to build a relationship with the client as well.
11. Take a digital photo of your client so your investigator or witnesses may be able to identify your client if appropriate. If the date of the photo is important have the client hold up the front page of the newspaper.
12. You should always be sensitive to the fact that the client has absolutely no experience in “going to court.” Never tell the client to meet you in court at 9 o’clock. Always tell them to be there at 8 o’clock because invariably they will be late.
13. Always write to your client about the court date. Give him directions to court. If she lives out of town be sure she comes in the day before and not drive all night hoping to make it to court in the morning. “Amateurs talk strategy. Professionals talk logistics.” ~ Patton
14. If your client is in custody be sure that the clerk has cut a “transport order.” There is always some problem getting incarcerated clients to court and you should never assume that this has been done correctly. It’s just a waste of time to have everything ready for a trial or hearing and the client is still 200 miles away in some prison.
15. If the client has something to bring to court, instruct him to leave it by the front the door so he will bring it in the morning. Better yet, have them bring it in advance. Tell the client what to wear to court and have them lay it out the night before.
16. Be sure you tell the client what not to bring: cell phones, pistols, pagers, children, or Bibles.
17. Tell your client about court-ordered drug testing at your first meeting. It frequently takes weeks for drugs to be purged out of one’s body. Nothing will ruin an otherwise successful sentencing hearing more than a failed drug test.
18. If you think that the client is “on drugs” during the course of representation, it is not inappropriate to have the client independently drug tested. I make this a condition of representation since there is not much that I can do to help a person if they are constantly coming to court stoned.
19. Client communication extends to the written contract. You should always have a written contract with your client which spells out obligations and responsibilities. The contract should also address things that are not contemplated at this level of representation. I tell my clients that they are hiring me for the trial but that representation will terminate at the end of the trial. It will not extend to an appeal absent a further and additional contract. This avoids misunderstanding since the client has no concept that the “case” is taken in stages. Contracts for representation are always construed in favor of the client and against the lawyer because of the superior position of the attorney in having drafted the contract in the first place. If you charge a non-refundable fee, then the written contract must so specify. There is no such thing as an “oral” contact for non-refundable fees. They must be in writing.
20. The most important thing about sending your client a bill is that you also include a stamped, self-addressed envelope. We tested this out in our office; the rate of payment was much higher when the envelope was enclosed. Use “forever” stamps since some clients may procrastinate so long that the rate of postage increases. Do not send stamps to incarcerated clients since stamps are considered contraband.
21. When you are discussing things with your client, make certain he discontinues his Facebook account. Facebook is just an open invitation to invasion of privacy. There is no telling what they put on their Facebook. There is zero privacy in a Facebook account.
22. Does the termination of a Facebook account constitute “destruction of evidence?” Certainly not. The simple answer here is to have the Facebook data captured and frozen in time before terminating the account. A Facebook account is a moving target and it is always subject to change and alteration by others.
23. Advise the client to immediately change the password on all of her electronic accounts, including cell phones, e-mails and, everything else. The last thing you want is your communications with your own client to be intercepted by some “friendly” witness who has all of your client’s passwords. Have the clients change their passwords frequently.
24. You should always remember that you are also under stress so deal with it appropriately. Some clients are more stressful than others. Address these issues and then move forward. Do not wallow in indecision. “The time to take counsel of your fears is before you make an important battle decision. That’s the time to listen to every fear you can imagine! When you have collected all the facts and fears and made your decision, turn off all your fears and go ahead!” ~ Patton “Be always sure you are right — then go ahead.” ~ Crockett
25. Delegate as much as possible. “Don’t tell people how to do things, tell them what to do and let them surprise you with their results.” ~ Patton
26. Document your file. A short pencil is better than a long memory any day. I have a plan for each case and practice “projective law.” In other words, think about where the case is going to be in six months and let your short term decisions be guided by the overall projected plan for the case. Be aware, however, that “your” file belongs to the client. Rule 1.16 of the current rules of professional conduct provides “The lawyer may, at the lawyer’s own expense, make a copy of client file materials for retention by the lawyer prior to surrender.”
27. Be aggressive with the case and hopeful to the client about a successful, albeit realistic, result. There is a delicate balance between the “Rambo attorney” and the “Wimpy lawyer.” “Nobody ever defended anything successfully, there is only attack and attack and attack some more.” ~ Patton. Clearly, you want to monitor client expectations so they are realistic. However, clients want some hope. “We must accept finite disappointment, but never lose infinite hope.” ~ King
28. Do not procrastinate. Rule 1.3 of the current rules of professional conduct provides that “a lawyer shall act with reasonable diligence and promptness in representing a client.” The lawyer does a disservice to the client by endless delay. Remember that clients not only want a successful result, but they want their case to be resolved quickly so as to reduce the stress and to increase the certainty that their lives can move forward. The primary reason for procrastination is that lawyers frequently feel that they cannot “get fired up” for the case unless they feel the pressure of a dead line. That is absurd. Procrastination is an invitation to a malpractice lawsuit.
29. Do not take on more clients than you can comfortably handle. Some lawyers think a multitude of clients is a wonderful bounty. It can be a curse.
30. While we have innumerable communication devices, the telephone is still our primary method of conducting business. Emailing is also appropriate because there is a good record of what is being communicated. Email can be accessed on your phone as easily as Text Messages. In my opinion, “Txt Mgs R 4 Children” and should not be used with clients since there is less security and it is too informal.
31. Instruct your receptionist to always inform the caller as to your whereabouts before transfer ring a call to your office phone if you’re not there. The worst thing that a prospective client wants is immediately being “dumped” into your voicemail with no indication of when you might return the call. You will never know about the messages never left by prospective clients who need a lawyer NOW and have moved on to the next lawyer on the list. If you do not have a receptionist, then your voicemail should indicate when you might return.
32. Your voicemail message (or receptionist) should always ask the caller to leave a primary and secondary, alternate number. People leave the number they are calling from (such as from work) and never think to give a cell number which they can access when they are home. You may not be able to call back until after they have left work. Since you don’t have that alternate number that is one less prospective client. You want all points of communication so you can employ tip 33. I am not quite ready to solicit email addresses in my telephone voicemail messages. Moreover, people don’t always remember their email addresses or frequently give them inaccurately in a phone message. My staff, when taking telephone numbers “live,” uses discretion in offering to take email addresses from prospective clients. This ensures accuracy and gives me another point of contact.
33. It is important that you promptly return your phone calls. About twenty percent of the clients in our office have had other lawyers. The biggest complaint is that the prior attorney would “never call them back.”
34. Do not be a lawyer who stays on a call forever. Get yourself a timer to help monitor the length of your phone calls for billing purposes and to also put a “governor” on the length of your calls so that you can be accessible for the next call.
35. Accessibility is the key to a successful law practice. Lawyers who “go missing” for days or even weeks on end will frequently find that their clients are missing as well.
36. When you leave a message for your client or others, recite your phone number first. Then leave the body of the message. A lot of people garble their telephone number at the end of the message and people have to listen to the whole thing all over again just to get the phone number. Some folks do not bother and you will never receive a return phone call. ALSO be sure to also leave your telephone extension number if you have one so that the return-caller does not have to run through some ridiculous menu to get back with you.
37. When you speak with a client in your office, insist that they turn off their cell phone so that they are not fiddling with it while they are speaking with you. Turn off your own cell phone and other communication devices so that you can give full attention to the client.
38. Lawyers often ask if they should give their cell phone numbers to their clients. At the end of the day you will probably want to do that if you believe that it is critical to a particular case. I have found that a better option is to give your client your e-mail and ask him to send you an email if there is an “after hours” issue. I can access my e-mail on my cell phone and that seems preferable than having clients call in the middle of dinner.
39. Be careful of automatic name insertions when addressing email. It may be a similar name but not the person to whom the mail is intended. If this becomes a problem turn the feature off.
40. Be sensitive to clients with physical disabilities. Hearing difficulties is always a “hidden” problem, particularly as our population ages. You should also be sensitive to any hearing deficiency that you might have.
41. It is critical that clients occasionally hear from you in written form. When you write to a client, put it in language that they can understand. Have a firm policy of sending clients copies of everything.
42. When you write to your client or anyone else, make certain that the “print” is large enough to read. Most lawyers use 12 point font on their word processors because that is the default setting. Kick your computer up to 13 point and you will be amazed at how smart you will appear to everyone because now they can actually read what you write.
43. Client communication should be a strength for your practice. You should emphasize this on your web site. Indeed, you should be certain that you have a website because, in this day and age, if you are not on the web you do not exist.
44. Prospective clients not only find lawyers through “Google” searches, but they often hear about a lawyer and use the internet to “validate” what they have heard. Having an appropriate web presence will do much to increase your visibility and enhance communication with prospective clients.
45. Keep your word to your client and to other lawyers. The Bar has a long memory.
46. Never disparage other lawyers or judges to your client. Your opinions are not privileged. Occasionally, paranoid clients tape-record their own lawyers.
47. Keep client confidences. The privilege extends beyond the grave.
48. Before accepting evidence from the client be absolutely certain it is authentic and the client has not tampered with the evidence. Do not accept contraband.
49. Rule 1.4 of the Rules of Professional Conduct contains extensive ethical requirements and prohibitions regarding client communications. Read the rule. Rule 1.8 deals with certain client conflict-of-interest issues. Study the Rule. Rule 1.7 [12] addresses the most serious communication problem: sexual relations with one’s client. Pray over the rule.
50. Be sure to keep a scrapbook of letters, cards, and e-mails that happy clients send you through the years. Pay attention to what the clients said so you can promote those traits that first attracted the client and helped you resolve their controversies in a successful manner. “Some people tap their feet, some people snap their fingers, and some people sway back and forth. I just sorta do ‘em all together.” ~ Presley

Article written by David L. Raybin, a partner in the law firm of Hollins, Raybin & Weissman, P.C. Mr. Raybin can be reached at 615-256-6666 or draybin@hwylaw.com.

The law leaves the severity of the punishment in the hands of individual school districts.

This new law is aimed at those that were convicted of relatively minor non-violent offenses but have since lived law-abiding lives.  Once an expungment  is enterd thea person  can lawfully  possess and carry a firearm.  This is a significant part of the new law which restores Second Amendent Rights for those who had certain prior felony convictions.

The law takes effect on July 1, 2012.    The law requires, among other things ,that the person file a petition in the county court where they were convicted of such offense.   The petitioner cannot have convictions in any other state or federal court other than the ones that they are petitioning to expunge. The petitioner is required to have paid all fines, restitution, and court costs.  The law further requires that at least five years  have passed  since the completion of the sentence imposed by the conviction.

Those convicted of felonies that would be eligible under this law include persons that were convicted of one or more Class E felonies and sentenced to three years or less on or after November 1, 1989 including crimes that involve theft between $501-999, forgery up to $1,000, fraudulent use of a credit card $501-999, worthless checks $501-999, burglary of an auto, vandalism $501-$999, evading arrest in a motor vehicle where no risk to bystanders, and the manufacture, delivery, sale or possession of Schedule V, VI (marijuana) and VII drugs when charged as an E felony.  The full list of such eligible offenses included within Tennessee Code Annotate 40-32-101(g)(1)(A) as amended effective July 1, 2012 can be found  HERE:   pc1103

Expungement is also available for those convicted of misdemeanors with the exception of many misdemeanors that involve physical force, minors, sexual offenses, and deadly weapons.  A complete listing of misdemeanors offenses that are excluded can be found HERE:  pc1103

If you have questions or wish to hire an attorney to file such a petition, you should consult a criminal attorney that practices in the county where you were convicted.  If you live in the Middle Tennessee area, you may contact David Raybin or Vince Wyatt at (615) 256-6666.

Despite a Tennessee law passed last year, which made it illegal to produce, sell or posses a product containing any of the six listed chemical combinations of synthetic derivatives of the drug, manufacturers have found ways to avoid prosecution.  By making changes to the ingredients and finding new methods to produce the drugs, synthetic drugs continue to be produced and distributed across the U.S.  However, the creation of a blanket legislation to outlaw all synthetic drugs in an attempt to stay ahead of manufacturers also presents problems.  This is what occurred earlier this year when a local Gallatin business owner sued the city, claiming the definitions of the substances considered illegal were unconstitutionally vague and that the law was overbroad.  Likewise, similar lawsuits are being brought in Sullivan County and the cities of Kingsport and Bristol.  Currently, there are four main house bills in Tennessee, concerning synthetic drugs.  They are: HB 2218, HB 2286 (to take effect July 1, 2012), HB 2645 (to take effect July 1, 2012) & HB 3175 (passed April 16, 2012; Senate version not passed yet).  For more information on synthetic drug laws and other recent developments, visit http://tncommunityhealth.wordpress.com/category/bath-salts/.

Sources:

City legal staff looking into synthetic drug ban

City moves to repeal synthetic drug ordinance

Synthetic drug bills advance in Tennessee House

Posted By: Eston Whiteside