Open Container Law in Tennessee

The law surrounding drinking alcohol in public is often misunderstood which was highlighted by a recent case of mine: Attorney Jay Perry.  An officer sought to arrest an individual for a violation of the “Open Container” law for drinking beer on a public sidewalk.  However, the "Open Container" law (T.C.A. 55-10-416) only applies to the driver of a motor vehicle, meaning that under Tennessee law it is perfectly legal for any passenger in a car to consume alcohol.  It is important to remember, however, that if travelling to Georgia or Alabama, you’d better finish that drink before crossing the state line.  Both of those states outlaw anyone in an operating motor vehicle from consuming alcohol.

As for my case, was drinking on a public sidewalk against the law?  There is a specific criminal prohibition on drinking on the grounds of a public school “having any of the grades kindergarten through twelve (K-12).”  But there is no general law in Tennessee prohibiting drinking in public.  However, don’t take to the sidewalks quite yet.  There are many municipal ordinances that make such behavior illegal.  For example, here in Chattanooga the city code states:

(b)   It shall be unlawful for any person to drink or consume any alcoholic beverage or

beer or have an open container of alcoholic beverage or beer in or on any of the following places:

     (1) public street, alley, avenue, highway;

     (2) public sidewalk;

     (3) public park;

     (4) public school ground;

     (5) any other public place;

     (6) teen social clubs, as defined in Chapter 11 of this Code; and

     (7) any parking lot held open to use by the public.

     Chattanooga City Code Sec. 5-87

But wait, what about all of the great Chattanooga events, i.e. Nightfall, Brewfest, Riverbend, where beer is clearly sold (and consumed) in a public place?  Well fortunately, the city code also contains an exception for events where a temporary beer permit has been obtained.  So, in the end it appears that there are many times/places where you may legally drink in public but apparently not on the sidewalk. 

Governor Haslam Encourages a $6 Million Crime Prevention Plan for Tennessee

The Tennessean reported Friday that Governor Haslam has devised a plan to help prevent crime and reduce the amount of violent crimes in the state of Tennessee. The estimated total cost of the plan is around $6 Million.

Violent crime has become a huge concern for the citizens of Tennessee, most recently in Chattanooga where there has been a definite increase in shootings and other violent crime. Many blame gang activity and various drug activity. As we have witnessed in recent months, the combination of both can prove particularly dangerous.

The plan focuses on three areas: decreasing violent crime, cutting the rate at which criminals commit new crimes, and reducing prescription and methamphetamine abuse.

Here is a rundown of the different aspects of the proposed plan:

• Domestic Violence: One of the aspects of the plan would impose mandatory minimum sentences for domestic violence offenses. A second domestic violence offense would receive a mandatory minimum of 45 days in prison; a third offense would receive a mandatory minimum of 120 days in prison. The proposed legislation dealing with domestic violence stems from a study conducted in October that ranked Tennessee the 5th in the nation in murders of women by men.

• Gang-Related crimes: The plan includes increased penalties for felons involved in gang-related crime, and reducing the rate at which a criminal commits a new crime. Specifically, legislation would target groups of three or more people who commit violent crimes. These groups would receive a harsher penalty for gang-related crime. Further, specific crimes frequently associated with gang activity will receive an increased penalty. These include: aggravated assaults and robberies and aggravated burglaries.

• Pill abuse: The proposed measures involving drug-related crimes include a system for cleaning noxious meth labs, improving the state database that tracks the sale of pseudoephedrine, better training state troopers on drug interdiction, and shift non-violent drug offenders from prison to local drug court programs.

Haslam's plan has its fair share of critics. Some of those against the legislation include defense attorneys who are wary of mandatory minimum sentencing. This is because specific circumstances of a case cannot be taken into account when there is a mandatory minimum sentence in place for a certain crime. Funding is also a big issue. While moving non-violent drug offenders to drug court programs is a great suggestion, many wonder where the funding for that type of movement will originate. Many are worried that the increased penalties for domestic violence offenders will begin to overcrowd the prisons. Prison administrators state the prisons are already filled to capacity with some exceeding capacity.

Even given the criticism, there seems to be overall support for Haslam's plan, particularly for the provisions involving drug-related crimes.

Many of these proposed laws are likely to come up in the upcoming session of the Tennessee Legislature. If passed, they will take effect later this year.

TN Court of Appeals Affirms Aggravated Kidnapping Conviction

• State of Tennessee v. Jereme Dannuel Little

The TN Court of Criminal Appeals decided the case of a Hamilton County defendant, Mr. Jereme Dannuel Little. Mr. Little was charged with two counts of aggravated robbery and one count of especially aggravated kidnapping. The relevant facts involved Mr. Little and Mr. Grayson, alleged victim of the aggravated kidnapping. According to Mr. Grayson, he helped Mr. Little commit a robbery at the house of Mr. Chris Rogers. Mr. Little instructed Mr. Grayson to stay with Mr. Rogers and his son while Mr. Little searched the house for things to steal. Believing Mr. Little would eventually kill Mr. Rogers and his son, Mr. Grayson decided to leave. He stated he had agreed to help with a robbery, not a murder. Mr. Little became angry that Mr. Grayson left the house early. According to Mr. Grayson, Mr. Little kidnapped him and took him to a friend's house where Mr. Little tortured Mr. Grayson for hours. At trial, Kelvin Ellison, who witnessed Mr. Grayson tied up at the house, testified as to what he saw that day. His testimony matched up with Mr. Grayson's except that he did not mention ever hearing about a robbery committed earlier that day.

The evidence at trial consisted of the testimony mentioned above and other testimony for the defense that suggested someone else had committed the robberies and that Mr. Grayson was lying about the kidnapping. At the close of evidence, the defense renewed their motions for judgments of acquittal. The Court ruled that there was insufficient evidence to support the two robbery charges. The Court instructed the jury that they were not to consider the two robbery charges in their attempt to deliberate over the remaining kidnapping charge. The jury eventually convicted Mr. Little of especially aggravated kidnapping, and he was later sentenced to 18 years incarceration.

Mr. Little appealed his conviction, stating among other things, that the Court acted improperly when it refused to instruct the jury on the defendant's acquittal for the robbery charge. In an excerpt from the trial transcript, the defense objected to the Court's refusal to instruct the jury on the robbery acquittals. The Court responded stating the Court's legal rulings "are not their business." The defense argued that the motive behind the kidnapping directly involved the defendant's alleged commission of the robberies. The Court responded stating that the defendant was acquitted of the robbery charges not because he didn't do it, but because there was insufficient evidence to prove he committed the robberies.

The Appeals Court considered the defendant's arguments and determined that there was no justification for the trial court's refusal to instruct the jury regarding the acquittals. They held that it was an error to refuse to instruct the jury on the acquittals. However, just because there is an error, does not mean the defendant can be entitled to relief. In order for a defendant to receive relief based on an error in the trial court, that error must involve a substantial right and the error must result in a prejudice to the judicial process. The Court held that the refusal to instruct the jury was a harmless error. The Court stated that the instruction given by the Court (that the disposition of the aggravated robbery charges was of no concern to the jury and should not be the subject of speculation) was an adequate instruction. The Court presumed that the jury followed these instructions when it made the ultimate decision of guilt on the kidnapping charge. The Court also stated that the evidence involving the kidnapping charge was not really enhanced by the evidence that he committed the robberies. The only person who testified about the robbery was the victim (an accomplice in the robbery). On the other hand, the State presented a separate witness who corroborated Mr. Grayson's testimony about the kidnapping, but he admittedly knew nothing about the robberies.

The Court ultimately affirmed the conviction for aggravated kidnapping.

The dissent in this case was particularly interesting. Written by Judge Camille McMullen, the dissent focusses on the cumulative error doctrine as it applies to the current case. He cites to a case, State v. Hester, which states:

The cumulative error doctrine is a judicial recognition that there may be multiple errors committed in trial proceedings, each of which in isolation constitutes mere harmless error, but which when aggregated, have a cumulative effect on the proceedings so great as to require reversal in order to preserve a defendant's right to a fair trial.

Her main point in this dissent is that, while the errors committed during trial were all deemed "harmless", the combination of those errors has a disparate effect on the fair trial of the Defendant. Because of this, she felt his conviction should be reversed.

Chief Justice Roberts Steps into Recusal Fight

As controversy intensifies regarding the upcoming Obama-care challenge, Chief Justice John Roberts took the unusual step Saturday of defending the Supreme Court’s policy regarding recusal and voiced his support in the justices’ decisions on whether or not to sit out upcoming cases.

Roberts’ comments on the recusal question appeared in his year-end report. As we discussed in an earlier post, found here, a chorus of special interest groups have called for Justices Elena Kagan and Clarence Thomas to recuse themselves from participating in cases testing the constitutionality of the Obama-sponsored federal health care law.

Without referring to either Kagan or Thomas specifically, Roberts wrote, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

Kagan, appointed to the Supreme Court by President Obama, served as solicitor general, the federal government’s top lawyer at the Court, when the president signed the healthcare law in March 2010. Thomas’ wife, Virginia, a conservative activist affiliated with the Tea Party, has spoken out against the health-care overhaul, brining Thomas under fire from groups at the opposite end of the political spectrum. Some conservative groups, including the Judicial Crisis Network, have demanded that Kagan recuse herself when the case is heard. Meanwhile some liberal groups, including the Alliance for Justice, have raised concerns about Thomas’ bias.

Most legal experts see no real reason for either justice to sit out. The report containing Roberts’ statements is typically perfunctory and unexciting. This year Roberts chose to make a statement after observing that such issues “have recently drawn public attention.”

Roberts noted that federal law requires judges to disqualify themselves from a case when their impartiality might reasonably be questioned. He stressed that the standard focuses on “the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts.” As a result, Roberts said justices’ decisions on recusal are not subject to any review because they sit on the country’s court of last resort.

He added that when justices assess any potential conflict of interest, they must consider that no other judges can substitute for one of the nine. “If a justice withdraws from a case,” he observed, “the court must sit without its full membership. A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case.”

The health-care cases are scheduled for three days of oral arguments in late March.

Read: “The Supreme Court Chief Justice Cops Out,” by Andrew Cohen

Earlier:

Supreme Court Must Answer “The Broccoli Question” 

Health Care Battle Brings Calls for Recusal 

Sniffing Out Crime: Supreme Court Considers Case Regarding Limits on Drug Dogs

• JOELIS JARDINE v. FLORIDA

A case from Florida asks the question if a police dog’s behavior outside a house gives the officers the right to get a search warrant for illegal drugs inside the home, or does a dog’s sniff amount to a constitutional search?

The Florida Supreme court said that the dog’s ability to detect marijuana inside a home from the outside of a closed front door breaches a constitutional line. The Florida state attorney, Pam Bondi, is hoping that the Supreme Court of the United States will overturn that ruling. Legal experts agree that the Court will, in fact, hear this very important case and make a ruling. The Supreme Court could decide this month whether to take the case, the latest in a long line of disputes about whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure.

The case is being monitored by law enforcement agencies across the country that make use of dogs in the search for illegal substances. The dog in question, Franky, is now retired but is responsible for the seizure of more than 2.5 tons of marijuana – and $4.9 million dollars of drug-contaminated money. The chocolate lab spent most of his career sniffing around the nation’s airports.

The U.S. Supreme Court has heard four dog sniffing cases before – two of the previous cases involved the use of drug dogs after a traffic stop, one involved airport luggage, and the other one involved a package in transit. If they agree to hear this case, it will be the first one that deals with a dog and a private residence. 

Time and again, the U.S. Supreme court has ruled that the home is entitled to greater privacy than roads or public places. The justices ruled in 2001 that police could not use thermal imaging technology to detect marijuana growers from outside the home since the equipment could also detect lawful activity, such as intimate details about when the occupants were bathing. And it is already well established, that officers can knock on your front door, but if you refuse to open up and talk, the officers need to get a warrant to come inside.

The case is Florida v. Jadines, and in it, Joelis Jardines was arrested in 2006 for trafficking after police found 179 marijuana plants in his home when a drug dog detected smells from outside his door. His attorney challenged the search saying it was an unconstitutional intrusion into his home by law enforcement. The evidence was thrown out in a lower court, then reversed by an appeals court, but the Florida Supreme Court ultimately sided with the original judge. The recent decision has created a conflict within Florida as earlier rulings decided that a dog’s sniff does not amount to a search. 

Read: 

• “Decided by a nose? Court ponders drug dog’s sniff,” by Curt Anderson, published at AJC.com.
• JOELIS JARDINE v. FLORIDA

Earlier:

• Supreme Court to Hear Arizona Immigration Law Case 
• U.S. Supreme Court to Revisit the Confrontation Clause... Again 

TN Supreme Court adopts new ethics rules for Judges

• TENNESSEE SUPREME COURT ADOPTS NEW ETHICS RULES FOR JUDGES; OUTLINES PROCEDURE FOR RECUSALS

The Tennessee Supreme Court has adopted a comprehensive revision to the Code of Judicial Conduct, which sets forth the ethics rules for Tennessee judges. The new Code of Judicial Conduct, which is Tennessee Supreme Court Rule 10, will take effect on July 1, 2012.

Among the principal changes to the Code of Judicial Conduct is the addition of a new procedure for pursuing the recusal of a judge, along with a new process for seeking an expedited appeal if a motion for recusal is denied.

Under the new recusal procedure, judges will be required to provide, in writing, grounds for denying any motion for recusal. And, in cases where the recusal is granted, the rule outlines the process for designating a new judge in the case.

In the new rule, the Court also establishes the process for seeking an expedited appeal should a motion for recusal be denied. Should a judge deny a motion for recusal, an accelerated appeal may be filed with the appropriate appellate court within 15 days of the judge’s ruling. The appellate court will then make a decision on an expedited basis.

The Supreme Court also eliminated the ability for judges to make contributions to political campaigns or political organizations. However, the rule allows judges to purchase tickets to attend campaign events.

In following the American Bar Association’s model rules of judicial conduct, the Court adopted a new provision regarding the disability and impairment of a judge or attorney. The new rule instructs judges to take “appropriate action”, such as referral to a lawyer or judicial assistance program, should a judge have reasonable belief that another judge or attorney is impaired by drugs, alcohol or other physical, mental or emotional condition.

“Maintaining a high standard of judicial ethics is paramount to the public’s trust and confidence in the courts and the judges who preside over them,” said Chief Justice Cornelia A. Clark. “We believe these changes to the Code of Judicial Conduct will provide Tennessee judges with greater guidance for conducting the business of the courts in a fair, impartial and ethical manner.”

The new Code of Judicial Conduct was adopted as a result of a petition filed by the Tennessee Bar Association (TBA) to make changes to the current ethics rules. The TBA’s proposed rule changes were developed by a 13-member task force of attorneys and judges.

The Supreme Court filed the TBA’s proposed rules for public comment in March. Following the public comment period, the Supreme Court held oral arguments in December to discuss some of the issues in the TBA’s proposed rule.

Tennessee's Voter ID Law Could Face Potential Legal Action

The Times Free Press reported recently that the controversial Voter ID law enacted by Governor Bill Haslam may face a challenge in court. While those who disagree with the law are not saying much, it has been confirmed that a "law suit is being contemplated." Attorney Gerard Stranch of Nashville and general counsel for the Tennessee Democratic Party confirmed the potential for a law suit, but said that he hoped the legislature would change the law this month.

The controversial law, which went into effect on January 1, requires voters to present a government-issued photo ID in order to vote. Those supporting the law state it is necessary for preventing voter fraud. Interestingly enough, those in opposition to the law can only recognize one documented occurrence of voter fraud in the state of Tennessee. What many believe is the real reason for the law is an alleged national GOP effort to "disenfranchise millions of minority, elderly, young, and low-income voters across the U.S. before the upcoming 2012 election." Often times, these laws have a disparate impact on the socio-economic groups mentioned above who are more likely to lack the resources necessary to obtain a government-issued photo ID whether it be a lack of funds or a lack of proper documentation.

Many believe the recent rejection by the U.S. Department of Justice of a South Carolina law similar to Tennessee's will provoke the Tennessee Legislature to re-evaluate the law and eventually overturn it. The basis for this rejection is that the South Carolina law discriminated against minorities. According to proponents of the Tennessee law, South Carolina is under a different scrutiny than Tennessee when it comes to enacting Election laws. While South Carolina must seek approval by the U.S. Department of Justice before enacting any Election laws, Tennessee is not required to seek such approval. Because of this, supporters of the law believe legal action would be pointless.

Supporters of the law point to many efforts the Tennessee government has made to make this requirement easier on its citizens. For instance, driver services centers will be open the first Saturday of every month to help those in need of an ID obtain one. An ID issued for non driving purposes is also available for no charge unlike a driver's license. These efforts, supporters claim, prove that this law was not enacted with the purpose of creating a disparate impact on minorities and the elderly.

The citizens of the State of Tennessee will most likely have to wait this one out to see what happens. From the looks of it, either the TN Legislature will revisit the law later this month or those against the law will likely bring legal action. We'll keep you updated on its progress throughout the coming months.

New DUI law in effect

A new practice in DUI enforcement is now law.


As of January 1, 2012 a forced blood draw is now the law for every DUI stop in three situations in Tennessee:  1. If the driver has ever been convicted for a previous DUI (this is new); 2. If there is a passenger in the car under 16 years old (this is new); and, 3. If there has been an accident causing injury (this has been the law for some time). In short, no consent is needed in any of the three situations listed above for law enforcement to take blood or a breath sample (officer's choice as to method) from a motorist suspected of DUI.

The exact language of the statue says: 


(1) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed a violation of § 39-13-213(a)(2), § 39-13-218, or § 55-10-401, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test; or

(2) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 and has been previously convicted of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.


(3) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 5-10-401 and a passenger in the motor vehicle is a child under sixteen (16) years of age, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

Convicted sex offenders may be required to register as condition of release for later unrelated crimes

In United States v. W.B.H. the Eleventh Circuit held that defendants convicted of non-sexual offenses who have past sex offense convictions may be required to register as sex offenders as a condition of supervised release—even if the prior sex offense conviction occurred before the registration requirement passed by Congress in 2006.

In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires criminals convicted of a sex offense to register as sex offenders.

In this case, the defendant was convicted of first degree rape in 1987 when he was 18 years old, before SORNA was passed. In 2009, post-SORNA, the defendant was convicted of conspiracy to distribute drugs. As a condition of supervised release, the district court held that the defendant was required to register as a sex offender for the 1987 conviction. The defendant appealed arguing that this requirement violated the Ex Post Facto Clause. The Eleventh Circuit rejected this argument on grounds that Ex Post Facto relief applies only to criminal laws, not civil regulatory schemes and that SORNA was a civil regulatory scheme.

The Eleventh Circuit applied the two-part test set forth by the Supreme Court in Smith v. Doe, concluding that (1) Congress intended the sex offense registry to be a civil regulatory scheme rather than a criminal law and (2) the civil regulatory scheme is not so punitive in its effect to negate Congress’ intent.

The court reasoned that the registry’s predominant purpose is public safety, rather than the punishment of offenders. The court also reasoned, less persuasively, that the sex offense registry is not viewed as punishment or shaming by the public because it does not stage a direct confrontation between the offender and the public. Further, the court reasoned that the registry is not predominantly punitive in effect because it does not impose affirmative disabilities or restraints on the registrants—that the punitive effects of the registry are only indirect.

Social Drinking at Home by College Students Under 21, Legal?

Jay Perry, Attorney at Law

By Jay Perry

I was recently asked by the parent of a college student whether it was legal for their child (under 21) to drink alcohol in their home.  In Tennessee, the answer is no.  The statute (T.C.A. § 1-3-113) forbids anyone under 21 to “purchase, possess, transport or consume alcoholic beverages, wine, or beer”.  The only listed exceptions are for religious ceremonies and for those over 18 to “transport, possess, sell, or dispense alcoholic beverages, wine, or beer in the course of such person's employment.”

This contrasts with the law in Georgia which contains a specific exception (O.C.G.A. § 3-3-23(c)) allowing for minors to consume alcohol in their parents’ home, if the parents are present and the alcohol was provided by the parents.

Furthermore, the law in Tennessee provides for rather stringent penalties for underage drinking.  The offense is considered a Class A misdemeanor which carries as a maximum sentence up to 11 months and 29 days in the workhouse.  Furthermore, the law holds that upon a conviction for unlawful possession of alcohol the court “shall” send to the DMV an order denying driving privileges.  This loss of driving privileges can be for up to one year. 

Additionally, it is a separate offense if a fake ID is used to purchase alcohol.  If someone between the ages of 18-21 uses a false statement or ID to purchase (or attempt to purchase) alcohol, the proscribed punishment is a fine between $50-$200 and “imprisonment in the county jail or workhouse for not less than five (5) days nor more than thirty (30) days.”  The words of the statute seem to require mandatory jail time for this offense.  A second offense of this law also carries a loss of driving privileges.

With many college students home for the holidays and returning to school soon, it is important that they understand the possible consequences for behavior so common that it has become a rite of passage.  Unfortunately, it can have severe legal consequences and result in students caught in the criminal justice system. 

(Jay Perry is a Chattanooga lawyer who writes on legal issues concerning college students and young adults for Tennessee Criminal Law Review.  This is Jay's first post and we look forward to his contributions. You may contact Mr. Perry directly through the links above.)