New Law Requires Ignition Interlock Devices After Tennessee DUI Convictions

A new law signed by Governor Haslam will require first-time DUI offenders to install an Ignition Interlock Device in order to drive on a restricted license during the year their license is revoked.

An Ignition Interlock Device requires the driver to self-administer a breathalyzer in order to start their car. The car will not start if the driver's blood-alcohol concentration is .02 or higher. The Ignition Device also takes a picture of the driver at the time the breathalyzer is taken.  This is to prevent drivers from allowing another sober person to take a breathalyzer in order to start the car, then proceeding to drive after drinking. The Ignition Device will remain on the offender's car for 6 months.

Lawmakers and law enforcement met Tuesday to celebrate the Governor's passage of the new law. They called the new law "another tool in our toolbox to prevent tragedy."

Tennessee is the 18th state in the nation to enact a law requiring an Ignition Interlock Device. According to Flint Clouse, Mother's Against Drunk Driver's (MADD) Tennessee Executive Director, states with similar legislation have seen a reduction in DUI fatalities by 30% or more.

The new law will take effect in Tennessee July 1, 2013.

Supreme Court Supports Defendants Seeking To Raise Ineffective Assistance Of Counsel Claims

In a recent 5-4 decision, the Supreme Court decided Trevina v. Thaler to extend a ruling it made last year which allowed prisoners to challenge their state convictions in federal court based on the claim that their attorneys were ineffective.

Last year, the Court considered a case out of Arizona which challenged the state’s law saying that claims of ineffective assistance of counsel had to be raised in a separate post-conviction motion and not in a direct appeal of the original conviction. The problem with this approach is that there is no right to an attorney in the post-conviction motion phase, though there is in the direct appeal phase. The Supreme Court ruled that federal courts are allowed to hear challenged to Arizona convictions based on ineffective assistance if the defendant had no lawyer in the separate post-conviction challenge.

The Supreme Court said in the Arizona case that by insisting that ineffective assistance of counsel be claimed outside the appeals process where counsel is constitutionally guaranteed, Arizona significantly diminished defendants’ ability to file such a claim.

The new case concerned the Texas criminal justice system which also encourages, though does not require, that such ineffective assistance of counsel claims be raised in separate proceedings and not as a part of a direct appeal. The Supreme Court decided the distinction between Texas and Arizona was unimportant and that the tradition was enough to deprive some defendants of the chance to raise ineffective assistance claims. The Court said that as a matter of practice, the Texas system does not offer most defendants a meaningful chance to present a claim of ineffective assistance of counsel on direct appeal.

Given the recent decision, it seems clear the Court is willing to go great lengths to ensure that defendants have the opportunity to raise ineffective assistance of counsel claims as part of the direct appeals process where they are constitutionally ensured legal representation. 

To read the full opinion, click here.

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Supreme Court Issues Important Decision Regarding DNA Collection

A divided Supreme Court issued an important opinion today, Maryland v. King, saying that police are allowed to routinely take DNA from those suspects they arrest without first securing a warrant. The important criminal law decision equated a DNA cheek swab with the commonly accepted practice of fingerprinting.

The case involved a woman who was raped and robbed but police never were able to identify a suspect. Years later, Alonzo King was arrested and charged with second-degree assault. Police took advantage of the Maryland law which allowed warrantless DNA tests following some arrests, and took a swab of King’s cheek. After putting the DNA into a database, the police got a hit for the earlier rape and King was ultimately convicted and sentenced to life in prison.

Justice Kennedy, who wrote for the five-justice majority, said that taking a DNA swab is like fingerprinting and photographing which is already part of a legitimate police booking procedure and is acceptable under the Fourth Amendment.

The case was seen as important not only because of the increasing importance of DNA evidence, but also because of how prevalent the practice already is among the states. As of today, at least 28 states and the federal case engage in warrantless DNA collection. A Maryland court that heard the case said the practice was illegal and said that the state first needed approval from a judge before taking a suspect’s DNA. The Maryland court said that a reasonable expectation of privacy prevented such warrantless searches.

The Supreme Court disagreed with the Maryland court and reinstated King’s rape conviction. Kennedy wrote that in the way it was used in this case, DNA for the purpose of identification is no different than matching someone’s face to a wanted poster or matching tattoos to known gang symbols. According to the justice, the procedure of taking a swab from a cheek is not substantially different than taking a fingerprint from a suspect and matching it to those recovered from a crime scene.

The dissent was harshly critical and led by outspoken Justice Antonin Scalia. Scalia warned the public that because of today’s decision anyone’s DNA could be taken and entered into a national database if they are ever arrested for any reason. Scalia’s trouble with the case was not about the taking of the DNA itself, which is seen as a common step in many criminal investigations. Instead, the issue is one of timing. Taking the DNA before a conviction and without judicial approval is what Scalia had a problem with given that suspects are forced to divulge incredibly valuable and personal information to law enforcement without any judicial oversight.  

Read the full opinion here.

Read: “Supreme Court Upholds Warrantless Collection Of DNA,” by Mark Memmott, published at NPR.org.

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Problems Raised By NTSB Blood Alcohol Recommendation

The National Transportation Safety Board recently issued a new recommendation that asks all states to agree to lower the legal threshold for impairment for driving from 0.08 percent to 0.05 percent. The move was greeted with cheers from some alcohol awareness groups, but others have raised concerns about the impact of such a move, raising doubts about whether such a proposal could ever succeed.

The first issue that arose to challenge the new regulation was a surprisingly cool embrace from one of the organizations that many believed would be the biggest champion of the proposal. Rather than issue a press release trumpeting the news, Mothers Against Drunk Driving said only that the organization was “neutral” when it came to the BAC proposal. Many were surprised at the shrug from MADD, which has for years advocated for stronger DUI enforcement efforts. The group says the reason for its lack of interest in the new regulation is that it targets the wrong group of drivers, which leads to yet another problem of the new NTSB proposal.

The way the new recommendation is structured it is designed to target social drinkers, not abusive users of alcohol. MADD and others have suggested that such legislation amounts to a waste of energy given that this group of drivers is responsible for a very small percentage of all alcohol-related traffic accidents.

Opponents to the measure have pointed to research which clearly shows that the average BAC for a person involved in a fatal accident is 0.17 percent, triple the level that the new proposal would target. MADD says that to expend so much police time chasing down drivers who pose very little threat to other motorists is a misallocation of precious resources. Instead of spending time arresting those who have had two or three drinks, law enforcement agencies should devote energy to keeping repeat drunk drivers off the road. MADD says money should go into ignition interlock systems, not in incarcerating social drinkers.

Another problem with the proposed BAC change is that, practically speaking, it will be very difficult to achieve. The most recent shift in the BAC levels took 21 years to push through, lowering the levels from 0.10 to 0.08. That only happened after the federal government signed a law threatening to withhold lucrative highway construction money to states. Many experts say there is not enough political will to engage in another decades-long fight to lower levels yet again, especially when the value is debatable.

For decades now the percentage of all highway fatalities that involve alcohol has hovered at around 30 percent. That level was seen when the BAC limit was 0.10 and has stayed the same as the limit fell to 0.08. While the total numbers of alcohol-related fatalities have fallen since the legal limit was lowered, there is no proof that this change occurred because of the new legal limit. After all, the total number of highway fatalities also fell and the percentage of those deaths related to alcohol has stayed stubbornly stuck at a little less than a third.

Experts say that for the new proposal to truly be effective other changes would have to happen as well. The NTSB touts the number of lives saved in Europe after BAC limits were lowered to 0.05, but what it fails to mention is that many of those countries also began implementing random breathalyzer screenings of drivers, something that would be met with a huge outcry in this country.

There have so far been few signs that the majority of this country is eager to follow the lead of Western Europe on this issue. Many Americans would be shocked to learn that Sweden, which recently grew tired of its 0.05 BAC limit, decided to drop it even further, to 0.02 percent. Under such a law many drivers would technically be considered too drunk to driver after consuming less than one drink.

Read: “Room for Debate: Too Drunk To Drive,” by Opinion Editors, published at NYTimes.com.

Sixth Circuit Discusses Requirements For Probable Cause

An anonymous informant notified police about the presence of cocaine in Sidney Brown’s house and a search warrant was subsequently issued. When the police arrived, warrant in hand, they found the cocaine mentioned by the tipster along with a pistol and several thousands of dollars in cash. Brown was eventually convicted on several drug-related crimes and appealed the case. The Sixth Circuit used the case, U.S. v. Brown, as an opportunity to clarify exactly what amount of information is sufficient to create probable cause for a search warrant application.

When Brown appealed, he argued that the police did not have probable cause to search his home based only on an informant’s information. Brown tried to suppress the incriminating evidence that the police had discovered relating to the drugs. Browns’ attorney argued that the confidential informant was not reliable enough and the information had never been corroborated before the warrant was signed by the judge.

The Sixth Circuit used the common sense and totality of the circumstances approach to determining whether there was sufficient probable cause to conduct a search. In this case, the Court found that the informant had a track record of reliability, having given accurate information to the police that had previously led to two convictions. Given this track record, the Court found that the police officer’s reliance on the tip was sufficient to apply for a search warrant.

Beyond agreeing that the information in this case came from a reliable source, the Court held that the police are not required to corroborate the information they receive from such an informant before seeking a search warrant. The Court said that the practical reason for this is that officers seldom have the time or resources to fully investigate each tip before requesting a search warrant.

Because of the court’s approval of the anonymous tip, the Sixth Circuit affirmed the lower court’s denial of a Motion to Suppress evidence gathered as a result of the police search. The takeaway lesson from the case is that the Sixth Circuit made clear anonymous tips do not have to be overly detailed to be a valid basis for a search warrant. The Court reiterated that affidavits are judged on the adequacy of what they contain, not on the information that they lack.

To read the full opinion, click here.

Sixth Circuit Allows Crack Cocaine Defendants To Be Resentenced In Light Of Fair Sentencing Act

In an important recent decision, U.S. v. Blewett, the Sixth Circuit Court of Appeals found that the Fair Sentencing Act should apply retroactively. The Court decided that to continue to uphold the prior racially discriminatory laws would violate the Equal Protection Clause. In making its decision, the Court reversed lower court decisions regarding two defendants who were charged with crack cocaine possession: Cornelius Blewett and his cousin, Jarreous Blewett.

The Fair Sentencing Act at issue was implemented in 2010 and designed to create fairness in federal cocaine sentencing which notoriously handed down far harsher sentences to those convicted of possessing crack cocaine than to those found to possess powder cocaine. The sentencing laws were viewed as racially biased, given that crack cocaine users were more likely to be black while powder cocaine users were typically white. The Act helped lower the disparity in sentences from 100:1 to 18:1. For many inmates who were imprisoned before the Act was passed, their sentences remained the same.

The Blewett cousins were sentenced back in 2005, years before the Fair Sentencing Act was a reality. They both faced a mandatory minimum sentence of ten years based on the amount of crack cocaine they were found to possess. However, if they were arrested today with the same amount of drugs their sentence would not even be subject to the mandatory five-year minimum contained in the Act, highlighting just how much of a change the new law has led to.

The Sixth Circuit ultimately tossed out the ruling of the lower courts with regard to the Blewetts and remanded the cases back to the lower courts to resentence while applying the new Fair Sentencing Act. The opinion from the Sixth Circuit will likely lead to many inmates seeking a resentencing in accordance with the Fair Sentencing Act.

To read the full opinion, click here.

Sixth Circuit Tackles Electronic Filing Typos

Everyone who does enough paperwork has surely made a mistake at some point. The wrong key was entered or the wrong box was checked. Thankfully, most typos are harmless and can either be quickly remedied or ignored. Unfortunately, when you work as a criminal defense attorney and you make a typo on an electronic filing system, it’s possible that the consequences could be much more grave.

In the case Shuler v. Garrett, the Sixth Circuit dealt with a case where an attorney made a very small mistake on an electronic court filing. The question that the Sixth Circuit was left to grapple with was whether or not the technical error could cause the attorney’s client to lose his right to appeal.

In the case, the defendant moved to dismiss the plaintiff’s appeal as untimely after the plaintiff’s attorney made a technical mistake while electronically filing a Rule 59 motion to appeal or amend the judgment. The standard rule says that a notice of appeal must be filed within 30 days of the entry of a judgment, but that this period can be extended if a party files a Rule 59 motion in time.

In the case, the attorney accidently entered the wrong docket information into the system when electronically filing the motion for her client. As a result of the mistake, the motion was listed under the docket of a different case. By the time the lawyer realized her mistake, the time had run out and the filing was now late.

The attorney in the case waited until the last day to file the motion, perhaps unnecessarily stretching the deadline to its breaking point. However, as the attorney argued, using the electronic case filing system can be a time consuming process which explained some of the delay in getting the motion filed.

The Sixth Circuit examined how other circuits have handled similar issues and noted that the Seventh Circuit found that a complaint filed under the wrong docket number was timely. The Court also mentioned that had the forms been filed on paper, the incorrect docket number would likely have been detected and the motion would not have been deemed untimely.

The Court said that the Federal Rules of Civil Procedure plainly state that clerks shall not refuse to accept filings solely because they are not presented in proper form. Given this, the Court found that the motion should be considered timely and that the client should not be punished for an electronic filing error on the part of their attorneys. The Sixth Circuit said that electronic filing typos should not hold your client back so long as the motion itself was filed within the proper time limits.

To read the full opinion, click here.

NTSB Pushes States To Lower Legal Alcohol Limit

The National Transportation Safety Board took a surprising step earlier this week when it recommended that the all states, including Tennessee, lower the threshold for what constitutes impaired driving.

Currently, Tennessee state law says that drivers who are operating a motor vehicle with a blood alcohol concentration greater than 0.08 percent are impaired. This number is supposed to indicate the level at which the majority of drivers are intoxicated enough that they cannot safely operate a vehicle. Every state in the country follows this rule, as do many other countries around the world, including neighboring Canada, which also deems those with a BAC above 0.08 legally impaired.

The NTSB has now said that, as part of its larger push to completely eliminate incidents of drunk driving in the U.S., all states should lower the legal limit to 0.05 percent. Though some groups, such as Mothers Against Drunk Driving, have come out in support of the recommendation, there are significant concerns that should be taken into consideration by lawmakers facing a possible change. First, lowering the number will likely lead to many hundreds or thousands more drunk driving arrests each year. Already huge numbers of Tennesseans have DUI convictions on their records, expensive and embarrassing mistakes that surface even years later in school applications and job interviews. Whether it would do anyone any good to flood the criminal justice system with more impaired drivers is a question worth considering.

Another concern is whether there would truly be a substantial benefit to making the change. The NTSB claims that by lowering the BAC from 0.08 to 0.05, between 500 and 800 lives would be saved each year by getting those who have had a few drinks off the roadways. The problem is that alcohol is a relative thing and by lowering the legal limit even further, the NTSB is ignoring that fact that some drivers may be convicted of a crime who are actually perfectly safe to operate a vehicle. Factors such as age, weight, height and gender can dramatically influence how alcohol affects a person and the truth is that even at 0.05 percent, some drivers might demonstrate some signs of impairment. However, that does not mean that the number must be lowered across the board for all other drivers.

In terms of real life behaviors, the decrease recommend by the NTSB will lead to big changes. Currently, a 180-pound man can have three drinks in an hour and be under the existing 0.08 BAC limit. Under the new rules, that same man would only be able to have one to two drinks in an hour to avoid being found legally impaired. If such a change were implemented in Tennessee it would likely mean radical shifts in people’s behavior and take some time to learn what kind of social drinking is legally acceptable.

Read: “NTSB recommends lowering blood alcohol level that constitutes drunken driving,” by Tom Costello, published at NBCNews.com.

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Sixth Circuit Discusses Validity Of Search Warrant That Lacked An Address

This case began in 2008 when the Cincinnati Police were tipped off that a man named Kenneth Rose had sexually abused three minors. The police met with all three children who told authorities about being raped and then viewing pornography in Rose’s bedroom on a laptop computer. Based on the information gathered in the interviews, the police were able to obtain a warrant for Rose’s computers located in his home.

The police executed the search warrant and seized Rose’s computer which revealed many images of child pornography including several that depicted Rose engaged in sexual contact with male minors. Rose was subsequently indicted on one count of possession of child pornography and five counts of production of child pornography. Rose ended up pleading guilty to three counts of production of child porn and was sentenced to fifty-one years in prison.

Rose then appealed his sentence, claiming that the district court made a mistake in not suppressing the evidence collected in the search, saying that the affidavit filed by the officer never listed the address of Rose’s home and thus failed to establish a link between the location of the search and the evidence sought.

The Sixth Circuit stated that for there to be probable cause justifying a search warrant, the judge must believe there is a substantial basis for thinking that evidence of a crime will be found on the premises. In this case, the affidavit explained that the name “Rose” was written over the doorbell, but did not provide a definitive link between the property and Rose. The affidavits from the victims explained that criminal activity took place in Rose’s bedroom, but never provided a specific address. The Court said that given this, there was no way to read the affidavit to conclude that the judge had the requisite basis for thinking evidence of a crime would be found at the address that was searched. The Sixth Circuit found that the affidavit did not provide probable cause to search the house.

The Sixth Circuit wrote that while the affidavits show a link between criminal activity and Rose’s bedroom, no thread was ever drawn by the victims or the police to link Rose to the house that was ultimately searched. Had the police included an address in the warrant, showing that an investigation had discovered that Rose resided at the location, that alone would have been sufficient.

Despite this flaw in the affidavit, the Sixth Circuit determined that the evidence collected should be admitted at court because of the good faith exception which provides for an exception to the exclusionary rule in cases where an officer conducts a search in good faith, relying on what he or she believes is a valid warrant. The Court described the error about the address as being akin to a clerical mistake and that such a small omission did not qualify the warrant as bare bones, and thus a bad faith search. Finally, because there was no indication of police misconduct, only police sloppiness, the good faith exception should apply to he search, allowing the child pornography to be admitted into evidence.

To read the full opinion, click here.

Interesting Sixth Circuit Opinion regarding Miranda Rights And Public Safety Exception

An interesting opinion, especially in light of the recent Boston Marathon bombing and subsequent arrest, is the Sixth Circuit case of U.S. v. Hodge. In Hodge, a suspect’s home was raided by police and a bomb was discovered after the suspect divulged its existence during questioning by police that took place without reading the suspect his Miranda rights. The issue before the court was whether evidence of the bomb gleaned from his statements to police should be suppressed. The Sixth Circuit held: no, it should not, that the questioning was valid due to the public safety exception to Miranda.

The case began when an informant approached police in Calhoun County, Michigan to say that an acquaintance, Lonnie Hodge, was using a one pot meth making method known as “shake and bake.” The method requires combining the ingredients of methamphetamine into a single bottle and shaking it until the drug is properly formed. The informant further said that Hodge had a pipe bomb and a black rifle that he suspected was an AK-47.

The police investigated Hodge by going through the list of pseudoephedrine purchasers and coordinating with neighboring police departments who were also investigating the man. After gathering sufficient evidence, the police were able to obtain a search warrant for Hodge’s home.

When police arrived things did not begin well. They knocked down the door to be greeted by a 6-foot 6, 320-pound Hodge waiving a screwdriver and screaming incoherently. Eventually Hodge was subdued and removed from the premises for questioning. A few minutes later, once Hodge calmed down, an officer asked whether Hodge he had anything in his house such as a meth lab or a pipe bomb that could hurt officers. Hodge said no. A few minutes later Hodge said that there was a bomb in the house. The police then pressed him for more information and he admitted that there was a pipe bomb, giving the location of the device that was eventually disarmed by the bomb expert. A subsequent search of the house uncovered drugs, though not meth, and a black rifle.

Hodge asked the trial court to suppress evidence of the pipe bomb, saying that the officer’s failure to read him his Miranda rights meant that the fruits of the interrogation should be inadmissible in court. The Sixth Circuit disagreed, ruling that the bomb should be admitted given the pubic safety exception established by the Supreme Court in New York v. Quarles as well as the inevitable discovery doctrine.

The Sixth Circuit said that in some cases “overriding considerations of public safety” can permit officers to omit reading a suspect his or her Miranda rights before questioning. The Court held that because bombs, especially pipe bombs, are by their very nature unstable and could explode at any time, they posed a real and present danger to all the officers at Hodge’s house.

Additionally, the Sixth Circuit wrote that even if a Miranda violation had occurred, the pipe bomb would still not be suppressed due to the inevitable discovery doctrine. This is because the police had a valid warrant to search the home and, given the bomb’s location, would have eventually discovered it even without Hodge warning them in advance.

To read the full opinion, click here.