Simple Possession or Casual Exchange Lawyer in Celina, TN

If you’ve been charged with simple possession or casual exchange in Clay County, Tennessee, it’s important that you contact an experienced attorney.

Simple possession or casual exchange is an A misdemeanor.  T.C.A. § 39-17-418.  That means someone convicted of simple possession or casual exchange could receive up to 11 months, 29 days in jail and up to a $2,500 fine.  T.C.A. § 40-35-111.  There are also mandatory minimum fines to consider.  T.C.A. § 39-17-418.  If the drug involved is marijuana or hashish, the minimum fine is $250 for the first offense, $500 for the second offense, and $1,000 for the third or subsequent offense.  If the conviction is for another drug, the minimum fine is $750 for the first offense, $850 for the second offense, and $1,000 for the third or subsequent offense.

Some drugs carry extra penalties.  T.C.A. § 39-17-418.  For example, if you have two or more prior convictions for simple possession or casual exchange and the current violation involves heroin, then you’re on the hook for an E Felony.  Even if its your first offense, if the violation is for meth, there is a thirty day minimum jail sentence (although, at least the simple possession or casual exchange of meth is just an A misdemeanor).

The penalties get much harsher if you’re an adult who casually exchanges drugs to a minor two years younger than you who you know is a minor.  T.C.A. § 39-17-418.  In that case, you’re punished as if you violated T.C.A. § 39-17-417 (felony manufacture, sale, or delivery).

So, is there any good news (other than your high)?  Yep.  Most simple possessions plea out to 11 months, 29 days, all suspended to supervised probation.  If you have good facts, you may be able to get 6 months supervised probation, 5 months & 29 days probation so long as you have your costs and fines paid off.  Finally, depending on the facts of your case, you may be able to get some of those costs or fines waived.  The details are very fact dependent, and you should never just assume because most people get a certain offer, that you will.  It’s critical that you talk with an attorney to help guide you through the process and speak with the local district attorney on your behalf.

DUI Lawyer in Cookeville, Tennessee

If you’ve been charged with driving under the influence, you need an attorney that is knowledgeable about the law, the field sobriety tests, and the local judges and district attorneys.

DUI Law

T.C.A. § 55-10-401 forbids driving a motor vehicle under the influence of any drug or intoxicant or with a blood alcohol content (BAC) of 0.08% or more.  If the vehicle is a commercial motor vehicle, the statute forbids driving with a BAC of 0.04% or more.

A person found guilty of violating T.C.A. § 55-10-401 first offense can be sentenced to up to eleven (11) months and twenty-nine (29) days in the county jail.  T.C.A. § 55-10-402.  Also, the person must serve at least 48 hours in jail.  If the person’s BAC is 0.20% or more, the person must serve at least seven (7) days in jail.

Further, the minimum jail times increase with each DUI offense.  Second offense DUI requires a minimum of 45 days in jail.  Third offense DUI requires a minimum 120 days in jail.  Fourth and fifth offense DUI requires 150 days minimum in jail, and the offense is now a felony.  The sixth or subsequent DUI conviction is a C Felony.

The fines also go up with each offense.  T.C.A. § 55-10-403.  A person convicted of first offense DUI is subject to a $350 to $1,500 fine.  Second offense DUI has a $600 to $3,500 fine.  Third offense DUI has a $1,100 to $10,000 fine.  The fourth or subsequent offense DUI has a $15,000 fine.  Also, there is an additional fine if a child is in the car (and likely problems with the Department of Children’s Services, but that’s for another blog).

Also, a person convicted of DUI will lose his license for one year for a first offense, two years for a second offense, six years for a third offense, and eight years for a fourth or subsequent offense.  T.C.A. § 55-10-404.

Field Sobriety Tests

The field sobriety tests are often critical in DUI cases, particularly when there are no blood test results.  Therefore, it is important that your lawyer is knowledgeable about these tests.  Police officers use a number of non-standard and standard tests.  Non-standard tests do not have the same reliability as the standard tests, and yet, many police departments continue to use them.  These nonstandard tests include:

The Finger to Nose Test

In this test, the officer asks the subject to close his eyes and touch the tip of his nose, first with one hand and then with the other hand.  The officer checks to see if the subject touches the tip of his nose and whether the subject sways, opens his eyes, or fails to keep his head tilted back.

The Finger Count Test

The finger count test requires the subject to touch each of his fingers to his thumb while counting.  The officer looks for (1) slurring of numbers, (2) incorrect order of numbers, (3) incorrect matching of numbers with finger to thumb movement, and (4) failure to touch finger to thumb.

The Hand Pat

The subject of a hand pat test has to alternate between patting the top and bottom of his hand while counting.  The officer may ask the subject to speed up or slow down.  DUI clues include (1) failure to turn the hand back and forth, (2) sliding or flopping the hand, (3) hesitating, (4) failing to count properly, and (5) failing to accelerate.

Coin Pickup

In the coin pickup test, the officer drops coins on the ground and asks the subject to pick them up.  While the subject is picking up the coins, the officer is looking for (1) balance, (2) hand/eye coordination, and (3) dexterity.

The Alphabet Test

The alphabet test requires the subject to recite the alphabet from A to Z, sometimes backwards.  The officer looks for (1) pauses, (2) missing and skipped letter(s), and (3) a slow pace.

Reverse Counting

In this test, the officer has the subject to count backwards, up to 25 numbers.  The officer looks for (1) failure to start or end on the designated numbers, (2) repetition of a particular number, and (3) poor pronunciation.

Writing/Drawing/Tracing Tests

In these tests, the officer has the subject write his name, draw shapes, and/or trace a shape.  The officer looks for accuracy and neatness.

The Romberg Test

The subject of the romberg test is required to stand with feet together, eyes open and hands by the side (and sometimes have his head titled back).  Then, the subject closes his eyes and the officer observes for up to a minute.  The officer looks for swaying, asking for additional instructions, opening eyes, and failing to keep the heals together or head tilted back.

In addition to the above nonstandard tests, there are a number of standard tests.  These include:

One-leg Stand Test

In this test, the subject has to balance on one leg and count for thirty seconds.  The officer looks for (1) swaying, (2) using arms for balance, (3) hopping, and (4) putting a leg down too soon.

Walk and Turn Test

The walk and turn test requires the subject to take nine steps heel-to-toe down a straight line, turn, and return in nine-steps.  The officer looks for the following clues: (1) cannot maintain balance, (2) starts too soon, (3) stops while walking, (4) fails to touch heel-to-toe, (5) steps off the line, (6) uses arms to balance, (7) turns improperly, and (8) takes an incorrect number of steps.

Horizontal Gaze Nystagmus Test

This test requires the subject to follow a slowly moving object, such as a pen, horizontally with his eyes.  The officer looks for (1) lack of smooth pursuit in either eye, (2) sustained nystagmus (uncontrolled movement) in either eye, and (3) nystagmus prior to 45 degrees in either eye.

Local Practice

As seen above, a DUI conviction can lead to the loss of your license for one year or more.  However, often people who lose their license can apply to the judge for a restricted license.  Some judges require you to pay all of your fines and court costs before approving your restricted license.  Other judges allow you to make payments to get your restricted license.  It’s also important to know what the local district attorney want.  In some counties, the assistant district attorneys will let you plea to the 48-hour mandatory minimum jail sentence with 11/29 probation.  In other counties, the assistant district attorneys will want more jail time.  That’s why it is critical not only to know the law and the tests but also the local practice.

If you’ve been charged with a DUI in Cookeville or in a surrounding town, reach out to a local DUI attorney today.

“This case should serve as a cautionary tale for any prosecutor, defense attorney, or trial court who attempts to negotiate or accept a guilty plea involving concurrent state and federal sentencing.”

So began the Tennessee Court of Criminal Appeals reversal of a post-conviction court.  Post-conviction wins are rare.  Extremely rare, even.  So, when there is a post-conviction win, it typically isn’t on the “standard” post-conviction issues, such as the amount of time the attorney spent counseling the petitioner.  Normally, there has to be a “smoking gun,” black and white type error where counsel messed up.  Even if there is such an error, the facts supporting it have to be proven by clear and convincing evidence and it had to actually prejudice the defendant.  In other words, the error must undermine confidence in the outcome in a way that “renders the result of the trial unreliable or the proceeding fundamentally unfair.”

In this case, there was a smoking gun type error, i.e., the plea agreement guaranteed the petitioner that his state sentence would run concurrently with his federal sentence.  In fact, the bottom of the plea agreement read, “ALL OF THE ABOVE TO RUN CONCURRENTLY WITH FEDERAL SENTENCE.”  The problem here is the State cannot make that agreement.  In other words, the State can’t force the federal government to run the sentencing concurrently.  As the court of criminal appeals put it, “[A] state court provision requiring federal and state sentences to run concurrently is not worth the paper on which it is written.”

Based on the above, the Tennessee Court of Criminal Appeals reversed the post-conviction court’s denial of relief and allowed the petitioner to withdraw his guilty plea.

Schaeffer v. State, E2016-01614-CCA-R3-PC (Tenn. Crim. App. Oct. 6, 2017).

Sometimes, a “win” in General Sessions is actually a loss.

This week, the Tennessee Court of Criminal Appeals reversed a criminal court’s dismissal of a domestic assault charge after the court dismissed the charge based on a general sessions judge’s findings.  At the preliminary hearing, the general sessions judge found probable cause for domestic assault by offensive contact but did not find probable cause for domestic assault by bodily injury.  After the general sessions judge dismissed the domestic assault by bodily injury charge, the district attorney presented the charge to the grand jury, which returned a single-count indictment for domestic assault by bodily injury.

At the trial court level, the defendant filed a motion to dismiss the indictment based upon the preliminary hearing testimony and the general sessions judge’s decision that the evidence did not support a charge for domestic assault by bodily injury.  The State responded that Tennessee Criminal Procedure Rule 5.1 permitted the State to present its case to the grand jury even if the general sessions judge did not find probable cause at the preliminary hearing.  After considering the evidence presented at the preliminary hearing and the general sessions judge’s decision, the criminal court judge dismissed the indictment as a violation of due process.

However, the court of criminal appeals reversed the criminal court’s decision, noting Tennessee Rule of Criminal Procedure 5.1(b)-(c):

(b) WHEN PROBABLE CAUSE FOUND. – When the magistrate at a preliminary examination determines from the evidence that an offense has been committed and there is probable cause to believe that the defendant committed it, the magistrate shall bind the defendant over to the grand jury and either release the defendant pursuant to the applicable law or commit the defendant to jail by a written order.

(c) WHEN PROBABLE CAUSE NOT FOUND. – When the magistrate determines from the evidence that there is not sufficient proof to establish that an offense has been committed or probable cause that the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant does not preclude the state from instituting a subsequent prosecution for the same offense. . . .

Citing State v. Thurman Randolph, No. W2006-00261-CCA-R9-CD, 2006 WL 2993459, at *5 (Tenn. Crim. App. Oct. 20, 2006), perm. app. denied (Tenn. Mar. 19, 2007), the appellate court stated that “the dismissal of a charge at a preliminary hearing does not prohibit the State from obtaining an indictment at a subsequent date, and . . . the ‘issuance of the indictment by the grand jury . . . mark[s] the beginning of a new criminal proceeding . . . .'”  In the case at hand, since the general sessions judge’s decision did not preclude the State from obtaining an indictment at a subsequent date, the court of criminal appeals reversed the trial court’s dismissal of the indictment.

At this point, you may be thinking – “Even if the general sessions dismissal doesn’t help the defendant, that doesn’t necessarily mean the defendant is ‘worse off.’  How can a defendant sometimes be ‘worse off’ by a dismissal at the general sessions level?”  Good question.  If the general sessions judge dismisses a charge and the grand jury indicts on that charge, the defendant has to make a new bond.  Typically, if the general sessions judge finds probable cause and the case is bound over to the grand jury, the criminal court judge will allow the defendant to remain on the same bond.

Therefore, if a defendant is on bond at the preliminary hearing, it may be best to lose the preliminary hearing.  That isn’t to say that this is always the best course of action.  While the State is not bound by the general sessions judge’s decision, the State doesn’t take a judge’s dismissal lightly.  Sometimes, a dismissal at the preliminary hearing will end the case.  Further, if a client cannot make bond, a dismissal of his charge(s) will get him out of jail, at least until the grand jury indicts (or he is arrested on new charges).

Given the above, an attorney with a client in general sessions should counsel the client about the goals of the preliminary hearing and the risks/rewards of winning or losing at that level.

State v. Lawson, M2017-00238-CCA-R3-CD (Tenn. Crim. App. Oct. 3, 2017).

Drug overdose deaths increase in Tennessee

The Grundy County Herald reports that drug overdose deaths in Tennessee increased from 1,451 in 2015 to 1,631 in 2016.  This is the highest number of drug overdose deaths in our State’s history.  Driving the increase is fentanyl, a narcotic designed to treat severe pain but that can be deadlier than heroin.  While drug overdose deaths have increased by 12% from 2015 to 2016, fentanyl overdose deaths have increased 74% in that time period.

Currently, fentanyl is a Schedule II controlled substance in Tennessee.  The illegal manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell fentanyl is a Class C Felony with up to a $100,000 fine.  A Class C Felony carries a sentence of 3-15 years, depending on a defendant’s classification.  If the defendant carried or employed a deadly weapon during the commission of the above offense or if the offense resulted in the death or bodily injury to a person, the offense is a Class B Felony with up to a $100,000 fine.  A Class B Felony carries a sentence of 8-30 years, depending on a defendant’s classification.  Both versions of the crime have minimum fines of $2,000 for the first conviction, $3,000 for the second conviction, and $5,000 for third or subsequent conviction.

On the other hand, the simple possession or the casual exchange of fentanyl without a prescription is an A misdemeanor carrying a sentence of up to 11 months and 29 days in jail.  The maximum fine is $2,500.  The minimum fine is $750 for the first conviction, $850 for the second conviction, and $1,000 for the third or subsequent conviction.

As always, contact an attorney in your area to go over the specific details of your case.