Saturday, December 29, 2012

"No Refusal" law enforcement in effect on Hamilton County Roads For New Years

To combat drunk driving and the increased use of painkillers and other drugs while driving over the New Year's Day holiday, the Tennessee Highway Patrol and local law enforcement will be stepping up DUI and Drugged driving law enforcement on area roads. The "No Refusal" enforcement will be in effect today through New Year's day.

The most significant difference this year is that motorists who are impaired will not be able to refuse a blood test if an officer has probable cause to believe that the driver is impaired. Previously a motorist could refuse a blood or breath test. Under a law that went into effect earlier this year, a police officer who has probable cause may obtain a search warrant to secure the blood of a suspected impaired driver.

As the TN Department of Safety states, the “No Refusal” law, enacted this year by the General Assembly, allows law enforcement officials to seek search warrants for blood samples in cases involving suspected impaired drivers. Previously, a suspected impaired driver could refuse a blood alcohol content test and face charges of violating the implied consent law. This new law enables law enforcement to legally obtain blood samples by working with prosecutors and judges throughout the state during the warrant acquisition process.

This process will be in effect throughout Hamilton County. This link provides a list of where Tennessee Highway Patrol will be conducting DUI checkpoints today through New Year's Day.

The legislation was passed in part because of the persistent danger of drunk driving and also because of the dramatically increased rates that impaired people driving are impaired by painkillers and other drugs. These drugs do not show up in a standard breath test but can be detected though blood analysis. A forced blood draw supported by probable cause is a significant step to combat the problem.

Friday, December 28, 2012

CCA Judge Thomas Dissent on failure to advise state of defendant's acceptance of plea

In State v. Pye, Judge Kelly Thomas disagrees "with the majority’s conclusion that trial counsel’s actions regarding the Petitioner’s acceptance of the plea agreement did not amount to ineffective assistance of counsel. With respect to the Petitioner’s remaining issue, I concur with the majority’s decision."

As a general rule, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, --- U.S. ---, 132 S. Ct. 1399, 1408 (2012). By allowing a plea agreement offer “to expire without advising the defendant or allowing him to consider it,” defense counsel renders constitutionally ineffective assistance to the defendant. Id. The converse had also been held to be true, “that defense counsel does have a duty to communicate an accepted plea to the State in a timely manner, i.e., before the plea offer expires.” Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993); see also United States v. Gonzalez-Vazquez, 219 F.3d 37, 41-42 (1st Cir. 2000) (finding that the defendant likely had a claim for ineffective assistance of counsel where his defense counsel failed to accept a plea offer as instructed, allowing the offer to lapse); cf. Nichols v. State, 683 S.E.2d 610, 613 (Ga. 2009) (concluding that defense counsel was not ineffective in failing to communicate the defendant’s decision to accept a plea agreement where defendant did not make decision until after the offer had lapsed). To hold otherwise would mean that defense counsel’s duty to communicate plea offers to the defendant “would have no point if the duty to communicate the acceptance of the plea offer to the State is not also in place.”

Saturday, December 15, 2012

Nominating Commission Selects 3 Candidates for 6th District Circuit Court

Nominating Commission Selects 3 Candidates for 6th District Circuit Court.

The Judicial Nominating Commission met in Knoxville today to review the eight applicants for the Third Circuit Court vacancy in the 6th Judicial District, Knox County. The vacancy was created by the retirement of the Honorable Wheeler A. Rosenbalm effective January 1, 2013.

After holding a public hearing and interview for each applicant, the Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:

Kristi M. Davis
Hodges, Doughty & Carson

Mary Elizabeth Maddox
Frantz, McConnell & Seymour

Deborah C. Stevens
President/Managing Shareholder
Lewis, King, Krieg & Waldrop

Tuesday, December 11, 2012

Law Enforcement Agencies Push Cell Phone Providers to Store Text Messages

The major cell phone providers, including AT&T, Verizon and Sprint, may be required to keep information about their customers’ text messages for at least two years according to a proposal that various law enforcement agencies submitted to Congress.

A group of different police organizations asked legislators to require wireless companies to retain information, warning that a lack of federal requirements leaves a major hole in the ability of law enforcement agencies to launch proper investigations. The move was designed to include text message retention in an upcoming overhaul of the 1986 Electronic Communications Privacy Act, a privacy law meant to reflect the new realities of the modern technological era.

As text message usage has exploded recently so have the instances of their use in criminal investigations. They have been used as evidence in robberies, drug dealing and financial fraud cases. One great example occurred in 2009 when SkyTel turned over a whopping 626,638 text messages in Michigan.

Currently, the approaches used by the various companies are all over the place. Verizon and some others retain their text messages only for a brief period of time. Others, including T-Mobile do not store the messages at all. A Justice Department document obtained by the ACLU found that in 2010, AT&T, T-Mobile, and Sprint did not store the contents of text messages. Verizon did for up to five days, a change from its earlier no-logs-at-all position, and Virgin Mobile kept them for 90 days. The carriers generally kept data like the phone numbers associated with the text for 90 days to 18 months; AT&T was an outlier, keeping it for as long as seven years, according to the chart.

The groups making the request include the Major Cities Chiefs Police Association, the National District Attorneys’ Association and the National Sheriffs’ Association. It has not yet been made clear by the groups whether they want the telecommunications companies to store the content of the text messages or only to hold on to data including the numbers used to send and receive the messages. No matter which approach is employed it will be a massive responsibility for the cell phone providers with some 2 trillion text messages sent in the U.S. last year, coming out to nearly 6 billion per day.

The problem with the request for retaining the text messages is that there is ultimately only one reason for companies to do such a thing: to keep databases of information on their customers so police officers can fish for evidence at their leisure.

Source: “Cops to Congress: We need logs of Americans' text messages,” by Declan McCullagh, published at