Thank you Tennessee Bar Association

Today and yesterday, I had the opportunity to attend for the second time the ‘CLE Blast’ for attorneys at the Tennessee Bar Association in Nashville. It takes many hours of preparation for the staff to conduct the event and they inevitably put in many hours during the event itself since it goes from 7 am to 7 pm, Monday through Friday. (I’d like to note that this year’s event coincided with New Years Eve on Friday – and the staff will be there until at least 7 pm that evening while most of us are two (or four) drinks into the New Years celebration.)

It provides an excellent opportunity for attorneys who prefer to procrastinate (like myself) in getting their required hours to do so. The classes which are offered consist of a wide variety of topics and generally at any given time there is at least one CLE which is on-going that you will likely be interested.

Coffee, soft drinks and snacks are provided throughout and it is always a pleasurable experience. Thanks again to the TBA and their staff!

- Michael Shipman, Attorney at Law

Founding Member, Shipman & Crim, PLC

Nashville DUI Lawyers Explain: Uniqueness of a DUI charge in Tennessee

Driving under the influence (or DUI) is one of the few crimes in Tennessee which is often committed by ‘non-criminals’, meaning they are individuals who do not have a criminal history at all or have little criminal history. These citizens often have no tendency to commit violent crimes and the crime is just as likely to be committed by a member of any socio-economic faction.  Aside from a traffic citation, DUI is perhaps the one crime that even upstanding members of society may commit and because of that, it’s perception as to its degree of seriousness is undermined. The consequences of drinking while driving in Tennessee are not only being arrested, but potentially deadly for both the driver and others around the driver.

DUI charges in Tennessee are also unique in that the prosecution of the case (in situations where there is neither a breath test nor blood test conducted) is largely based upon a police officer’s opinion. In the prosecution of most crimes in Tennessee, there is substantially more evidence (either tangible or testimonial) which is collected during the investigative process which leads to the prosecution of the crime. For example, the Nashville assistant district attorney in an aggravated robbery case may present as evidence the weapon which was used, as well as the testimony of the victim. With a DUI charge in Tennessee, often the only evidence presented by the assistant district attorney is limited to the police officer’s testimony and any blood or breath test results (if taken). Although, these police officers have been trained specifically to conduct sobriety tests, the fact remains that it is often only their opinion that you were intoxicated at the time you were operating the vehicle. The sobriety tests must be followed precisely to yield accurate results which makes it that much more important to have a competent DUI lawyer examine your case and discuss possible defenses to your DUI charge prior to going to court.

If you have been charged with a DUI in Nashville or a surrounding county, call our office now to discuss your case with a DUI lawyer.

Nashville Criminal Attorney Explains: Tennessee Drug Laws

In 1987 in response to an increase in drug activity, then Governor Ned Ray McWherter initiated the Drug Free Tennessee program which resulted in a variety of programs designed to address a growing drug and alcohol problem not only in Nashville and the major cities, but throughout rural Tennessee as well. As a result, the Tennessee Drug Control Act was passed into law. Specific drugs are placed into categories representing their potential for abuse. Schedule I drugs present the greatest likelihood of abuse while Schedule VII represent the least likelihood of abuse and all classified drugs are referred to as controlled substances. The Tennessee law makes it a crime for a person to knowingly manufacture, deliver, sell or possess a controlled substance with intent to manufacture, deliver or sell the controlled substance.

What are the different Schedules of Drugs in Tennessee?

Schedule I Drugs in Tennessee: Possess a high potential for abuse and there are no accepted medical uses.

Familiar Examples: Heroin, LSD, stimulants, morphine, peyote

Schedule II Drugs in Tennessee: Possess a great potential for abuse, there are some accepted medical uses however those uses are limited or very restricted. Continued use of these drugs may lead to severe psychic or physical dependence.

Familiar Examples: Morphine, Cocaine, Amphetamines, Codein, Methodone

Schedule III Drugs in Tennessee: Possess potential for abuse less than Schedule I or II drugs, has currently accepted medical use in treatment and may lead to moderate or low physical dependence or high psychological dependence.

Familiar Examples: Anabolic Steroids

Schedule IV Drugs in Tennessee: Have a low potential for abuse relative to schedule III substances, has a currently accepted medical use in treatment and may lead to limited physical dependence or psychological dependence relative to Schedule III substances.

Familiar Examples: Pentazocine, Barbital

Schedule V Drugs in Tennessee: Have a low potential for abuse relative to Schedule IV, has currently accepted medical use in treatment in the United States and has limited physical dependence or psychological dependence liability relative to Schedule IV substances.

Familiar Examples: A substance containing not more than 200 mg of codeine per 100 grams.

Schedule VI Drugs in Tennessee include marijuana, tetrahydrocannabinols, and synthetic equivalents.

Schedule VII Drugs in Tennessee include butyl nitrite and any isomer of butyl nitrite.

If I’ve been charged with a criminal drug offense in Nashville, do I need a lawyer and what are my potential sentences?

As discussed in a previous Nashville Criminal Lawyer blog, the potential sentences and/or fines depends on a number of factors including the specific criminal offense, the range of the offender and any mitigating or enhancing factors. Tennessee law classifies criminal drug offenses as either a felony or misdemeanor. The criminal justice system is not designed to be navigated without an attorney. If you have been charged with a criminal drug offense in Tennessee, you should always at least consult with a criminal lawyer and discuss your case.

Schedule I Drug Offense – Class B Felony in Tennessee

(Cocaine of more than .5 gram – additional fine of up to $100,000)

Schedule II Drug Offense – Class C Felony in Tennessee (including cocaine if less than .5 grams)

Schedule III Drug Offense – Class D Felony in Tennessee

Schedule IV Drug Offense – Class D Felony in Tennessee

Schedule V Drug Offense – Class E Felony in Tennessee

Schedule VI Drug Offense – With regards to Marijuana, the classification varies depending on the amount.

Marijuana:

-        Less than ½ ounce – Class A Misdemeanor in Tennessee

-        ½ ounce to 10 lbs – Class E Felony plus up to $5,000 fine

-        10 lbs – 70 lbs (or 10 – 19 plants, regardless of weight) – Class D Felony in Tennessee plus up to $50,000 fine

-        20 – 99 marijuana plants (regardless of weight) – Class D Felonyin Tennessee plus up to $50,000 fine

-        70 to 300 lbs (or 100 – 499 plants) – 

Nashville Attorney Explains: Prosecution Time Limitations on Criminal Cases in Tennessee

Most people are familiar with a statute of limitations on civil cases, but it largely goes unnoticed with criminal cases. With the advance of forensics, many ‘Cold Cases’ are provided a new breath of life and receive quite a bit of media attention. People often do not realize there are limitations to when a crime can be prosecuted and with some exceptions, there are limitations to the prosecution of most crimes in the State of Tennessee. Our Nashville Criminal Lawyers have provided a brief, simplified explanation of the limitations. If you have been charged with any misdemeanor in Tennessee which occurred more than a year ago or a felony in Tennessee which occurred more than the years provided below, your criminal attorney should always consider the possibility of the time-barred defense.

Felony Prosecutions in Tennessee shall begin within:

1. Fifteen (15) years for a Class A felony in Tennessee;
2. Eight (8) years for a Class B felony in Tennessee;
3. Four (4) years for a Class C or Class D felony in Tennessee; and
4. Two (2) years for a Class E felony in Tennessee.

Exceptions:

• Offenses arising under the Tennessee revenue laws (including but not limited to any state tax evasion, attempts to defraud the state of Tennessee government);
• Prosecution for Arson shall commence within eight (8) years from the date the offense occurs;
• Crimes against children
• Crimes committed before November 1, 1989
• Crimes which are punishable by life imprisonment

Criminal Statute of Limitations for Tennessee Misdemeanor Prosecutions

The prosecution of misdemeanors are governed by Tennessee Code Annotated 40-2-102. It provides that the prosecution all misdemeanors shall be commenced within twelve (12) months after the crime was committed.

Exceptions:

• Gaming related misdemeanor offenses (6 months)
• Criminal Impersonation through the use of a fraudulently obtained driver’s license

Purpose of the Tennessee Criminal Time Limitations on Prosecutions

The statute enacted limiting the time in which a criminal case must be prosecuted serves to assure that stale cases are not brought forth by the government, making it potentially unfairly difficult to defend (Where were you, who were you with and what were you doing 10 years ago? I doubt you can remember) and provides a great incentive for the State of Tennessee not to delay in their prosecution of an individual. 

Why the Same Criminal Charges May Result in Different Sentences in Tennessee

Recently, I had a client who was facing criminal charges in Nashville. It was a felony drug case and he faced a relatively lengthy sentence. He asked me why a friend who had been charged with the same crime, had received a different offer from the District Attorney. It’s a common question for criminal lawyers, but explaining why some criminal defendants receive different offers is impossible without knowing all of the circumstances surrounding the other case. There are a number of key factors and knowing the charges is only one part of the equation in determining possible sentences.

Key Factors which determine a criminal sentence in Tennessee

1. The Criminal Charges. Each criminal offense in Tennessee carries a classification, either a Felony or a Misdemeanor. Felonies have sub-classifications from a Class A Felony (the most serious) to a Class E Felony (the least serious). Misdemeanors in Tennessee carry a sentence of less than 1 year and also have sub-classifications from a Class A Misdemeanor (the most serious) to Class C Misdemeanors (the least serious).
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3. The Range of the Offender. Tennessee criminal law classifies offenders as Range I, Range II or Range III offenders. Generally, the Range of a criminal offender in Tennessee can be determined by the number of prior convictions. The more times an individual is convicted of a felony, the harsher the sentences will become.
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5. Mitigating or Enhancing Factors. A mitigating factor is any circumstance which might lead the court to believe a lesser sentence is warranted. An enhancement would be circumstances which might lead the court to believe a harsher punishment is necessary.

If you have been charged with any criminal offense in Nashville or Middle Tennessee, you should always consult with a Nashville criminal defense attorney. Call our Nashville Lawyers today at 615-829-8259 to discuss your case. 

Nashville Criminal Attorney Explains: What is the difference in Tennessee between burglary, robbery and theft?

Robbery in Tennessee.

 Most people recognize these terms as being some form of theft with each involving some degree of violence or force. You may be surprised to learn a few distinctions between the Tennessee crimes. As defined by Tennessee law, Robbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear. For example, the use of a threat placing the victim in fear would be an example of a person committing the crime of robbery. The same criminal using a gun or a knife would be considered committing the crime of Aggravated Robbery and if the victim suffered serious bodily injury as a result of the use of the deadly weapon, it would be committing the crime of Especially Aggravated Robbery.

Tennessee Robbery Felony Grades:

 Robbery is a Class C Felony in Tennessee, Aggravated Robbery is a Class B Felony in Tennessee and Especially Aggravated Robbery is a Class A Felony in Tennessee.

Burglary in Tennessee.

 Burglary, generally, is the crime of entering a building (broadly defined) with the intent of committing a felony, theft or assault within the dwelling.Aggravated Burglary is the same crime as above, while entering a habitation (a building designed for the overnight accommodation of persons). Especially Aggravated Burglary is the same as above, with the additional factor of the victim suffering serious bodily injury.

Tennessee Burglary Felony Grades: 

Burglary can be either a Class E or D Felony; Aggravated Burglary is a Class C Felony in Tennessee; Especially Aggravated Burglary is a Class B Felony in Tennessee.

Theft in Tennessee.

 Tennessee has consolidated the crimes of embezzlement, false pretense, fraudulent conversion, larceny, receiving or concealing stolen property and similar offenses into the single crime of theft. Tennessee law also distinguishes betweentheft of property and theft of services. A person commits the crime of theft of property in Tennessee, if with the intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent. A person commits the crime of theft of services in Tennessee, if simply stated, a person obtains services by means of fraud, deception or coercion or by other means to avoid paying for those services received. It should be noted that walking away from a bar tab or restaurant bill is considered theft. In Tennessee, the respective felony and misdemeanor class is determined by the value of the stolen services or property.

-          If the value of the stolen services or property is 

less than $500

, the charge of theft in Tennessee is a Class A Misdemeanor.

-          If the value of the stolen services or property is 

$500 or more but less than $1,000

, the charge of theft in Tennessee is a Class E Felony.

-          If the value of the stolen services or property is 

$1,000 or more but less than $10,000

, the charge of theft in Tennessee is a Class D Felony.

-          If the value of the stolen services or property is 

$10,000 or more but less than $60,000

, the charge of theft in Tennessee is a Class C Felony.

-          If the value of the stolen services or property is 

$60,000 or more

, the charge of theft in Tennessee is a Class B Felony.

Felony convictions carry very significant consequences. If you have been charged withany criminal offense you should always consult with an experienced criminal defense attorney. Our Nashville Criminal Attorneys are prepared to provide you with an evaluation of your case, the charges you may face and discuss the possible defenses you may have against those charges. Whether you are facing a DUI charge, drug charges, or weapon related charges, our Nashville criminal lawyers have years of experience handling thousands of similar cases. Contact your Nashville Attorney Now.

Six Things to Look for When Hiring a Criminal or DUI Lawyer in Nashville

1.      A Lawyer who has Experience Defending Criminal Cases and DUI’s in Nashville. The law may be the same, but each court will be different with its procedures, likes and dislikes. No amount of education can substitute for experience. The best criminal defense or DUI lawyers will be familiar with the procedures of each court and know the judges and prosecutors tendencies to do things in a particular manner. With a former Metropolitan – Nashville and Davidson County prosecuting attorney on staff, our Nashville criminal and DUI defense lawyers have years of experience handling thousands of criminal cases of all types.

2.      Certainty that the Nashville Attorney you are hiring has handled cases LIKE YOURS. A criminal defense attorney who specializes in DUI Defense may not be competent to defend someone charged with an aggravated burglary, homicide or other type of Tennessee criminal charges. Likewise, a criminal defense attorney who rarely handles DUI cases may not be the best choice. In fact, you may end up paying a high fee for a big name attorney who has little experience handling DUI’s and end up with an unfavorable result.

3.      Stay Away from Nashville Criminal Lawyers who Guarantee a Particular Outcome. No guarantee can ever be made as to the result of any case. Not only would a guarantee violate the rules of ethics for Tennessee, it is indicative that the attorney is being dishonest with you or simply lacks the experience necessary to appropriately handle your DUI or criminal case. Only after a full evaluation of the case and facts can an attorney speculate as to likely outcomes, but can never guarantee any result.

4.      When Hiring a Law Firm, know which Nashville Criminal Lawyers will be Handling Your Case. Often times, a firm’s partner will meet with potential clients initially, have them sign the firm’s contract and allow an associate attorney to work primarily on the case. The client is now left working with a Nashville lawyer or lawyers they hardly know. It is our office policy that the Nashville attorneys who handle the initial consultation will also be the attorney working on the case and corresponding with the client.

5.      Hire a Nashville Criminal or DUI Attorney who has the time necessary to spend on your case. In all likelihood, the criminal or DUI charges you are facing are by far the most important thing going on in your life at that time. Make sure that the attorney with whom you meet is not overloaded and will have time for you. Nashville Criminal or DUI lawyers who are consistently failing to timely return phone calls and communicate with you indicates they either are overloaded or incapable of handling your criminal or DUI case. Find a new Nashville lawyer.

6.      Hire a Lawyer who has Experience Taking Criminal and DUI cases to Trial. Courtrooms intimidate many and sometimes that includes attorneys. It is important that when your criminal defense or DUI lawyer is negotiating with the district attorney in Nashville, the prosecutor knows your attorney has experience taking cases to trial, and winning. Our criminal defense attorneys in Nashville have years of experience taking cases to trial, and winning. Source: http://www.nashvilleattorneynow.com

Nashville Criminal Attorney Explains: Tennessee Murder Laws

“Actus non facit reum nisi mens sit rea” is a latin phrase which translated means "the act does not make a person guilty unless the mind be also guilty". In other words, to be guilty of a crime there must be some level of mental culpability (ie: intentional, reckless, negligent). An individual’s action is referred to as the ‘actus rea’ and the mental state of the actor referred to as the ‘mens rea’. There are some exceptions for strict liability acts, but we’ll discuss that at another time. This legal principle is the basis for the varying degrees of crimes – including murder. The result of any killing is the same – an individual or individuals are dead. Whether and how we should punish those responsible for the killing is determined by the different degrees of homicide. The varying degrees of murder are probably the most well-known in our society. The terminology is different from state to state and the purpose of this blog is to familiarize you with the murder or homicide statute in Tennessee.

Criminal Homicide in Tennessee is the unlawful killing of another person which may be First (1^st) degree murder, Second (2^nd) degree murder, voluntary manslaughter, criminally negligent homicide or vehicular homicide.

First (1^st) Degree Murder in Tennessee is a Class A Felony and includes:

1)      The premeditated and intentional killing of another, or

2)      The killing of another while committing a dangerous felony (more specifically: act of terrorism, arson, rape, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child, or aircraft piracy), or

3)      The killing as a result of the placement from a bomb or other destructive device

If convicted of First Degree Murder, the possible sentences include death, life without the possibility of parole or life (with the possibility of parole).

Second Degree Murder in Tennessee is:

1)      The knowing killing of another; or

2)      Any death resulting from unlawful distribution of Schedule I or II drugs if the drugs cause the death.

A conviction of Second (2^nd) Degree Murder in Tennessee is a Class A Felony.

Voluntary Manslaughter in Tennessee is the killing in the heat of passion with sufficient provocation to cause a reasonable person to behave in an irrational manner.

Voluntary Manslaughter is a Class D Felony in Tennessee.

Reckless Homicide in Tennessee is simply, the reckless killing of another and is a Class D Felony. It provides for a lower standard of mental culpability, or mens rea. Reckless is conduct whereby the actor does not desire harmful consequence but foresees (or should foresee) the possibility and consciously takes the risk.

Reckless Homicide is a Class E Felony in Tennessee.

Criminally Negligent Homicide in Tennessee is criminally negligent conduct that results in death. For there to be criminal negligence, there must be “a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.” Tenn.Code Ann. § 39-11-302(d) (2003). Furthermore, “the accused must know, or should know, that his or her conduct, or the result of that conduct, will imperil the life of another given the circumstances that exist when the conduct takes place.” State v. Adams, 916 S.W.2d 471, 474 (Tenn.Crim.App.1995). It is also necessary that in addition to being criminally negligent, the defendant’s conduct be the proximate cause of the ensuing death. See State v. Farner, 66 S.W.3d 188, 199 (Tenn.2001). In other words, the victim’s death needs to be the natural and probable result of the defendant’s unlawful conduct. Id. At 203. However, the defendant’s actions “need not be the sole or immediate cause of the victim’s death.” Id. (citing Letner v. State, 156 Tenn. 68, 299 S.W. 1049, 1051 (1927)). If the direct cause of the death is an act of the victim or third party, the defendant may still be liable if the act of the victim or third party is a natural and probable result of the defendant’s conduct. See Letner, 299 S.W. at 1051 (upholding a conviction where the defendant shot into the river near a small boat which so frightened the deceased that he jumped overboard and was drowned); Cole v. State, 512 S.W.2d 598 (Tenn.Crim.App.1974) (upholding a conviction of defendant who was drag-racing a second automobile and that second automobile collided with the victim’s car, killing the victim).

Criminally Negligent Homicide in Tennessee is a Class E Felony.

Vehicular Homicide in Tennessee is the reckless killing of another with an automobile, airplane, motorboat or other motor vehicle, due to one of the following:

-        Conduct creating a substantial risk of death or serious bodily injury to a person;

-        The driver’s intoxication, as set forth in the Tennessee DUI law;

-        Due to drag racing;

-        The driver’s conduct in a posted construction zone where the person killed was an employee of the Tennessee department of transportation or a highway construction worker.

A vehicular homicide conviction in Tennessee is a Class B, C, or D Felony and carries with any sentence a mandatory driver’s license revocation of three (3) to ten (10) years.

If you have been charged with any Tennessee criminal offense you should immediately consult with a criminal attorney. Both misdemeanor and felony convictions may carry other consequences to which you need to be fully aware prior to discussing any plea agreement. Have a criminal lawyer review your case, determine what defenses you may have and discuss whether to take your case to trial or attempt to negotiate a plea agreement.

Our firm, with a former Metropolitan Nashville and Davidson County prosecutor on staff has experience handling and successfully trying thousands of criminal cases ranging from DUI’s to homicide. Contact us today at (615) 829 – 8259.