YOUR CASE CAN BE DISMISSED… EVEN IF YOU ARE GUILTY

Believe it or not, there is mercy in the criminal justice system for those of us who have stayed out of meaningful trouble our entire lives.  The general idea is this: because the offense you are charged with isn’t outrageous and you haven’t been found guilty of a relatively serious charge in your life, you can eventually get this one thing off of your record, this one time.  Of course, you will pay for this option, and you will be under supervision by the courts, but in most cases, you’d be looking at all of that happening to you anyway, without the benefit of a dismissal at the end of the case.   

DIVERSION IN TENNESSEE

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 If you are charged with a criminal offense in Tennessee, it is important to know whether or not you are eligible for a process called diversion. For some criminal cases, a diversion can result in the original charge being dismissed and expunged. If granted diversion, you can avoid incarceration by completing a diversion program and in turn, avoid the stigma that accompanies a criminal conviction. 

There are two types of diversion in Tennessee: (1) Judicial diversion; and (2) Pre- Trial Diversion

PRE-TRIAL DIVERSION  

Pre-trial diversion is essentially an agreement entered into between you and the district attorney in which the state agrees to suspend the case for a certain period of time while you participate in some form of court supervision or perform some condition of suspension. If you successfully complete the requirements/restrictions placed on you during that period of suspension, the original charge is dismissed. In order to get this type of diversion, you must meet certain statutory requirements:

  1. You have not previously been granted pretrial diversion;
  2. You do not have a prior conviction for a Class A or B misdemeanor or for any class of felony; and
  3. The charged offense subject to suspension is not a felony, DUI, or sexual offense prohibited by law.

a diversion can result in the original charge being dismissed and expunged

 JUDICIAL DIVERSION 

 Judicial diversion is another diversion program available to “qualified defendants” in Tennessee. With judicial diversion, you enter a conditional plea of guilt and are placed on supervised probation. You will plea guilty or nolo contendre to the charge, however, the sentence is not imposed if you can successfully complete the probationary period. After successful completion of the probationary period, you can have the offense expunged from your record. In order to get this type of diversion, you must meet certain statutory requirements as well:

  1. You are found guilty or pleads guilty or nolo contendre to the offense for which deferral is sought;
  2. You do not have any Class A misdemeanor convictions or higher for which a sentence of confinement was served;
  3. You are not seeking deferral for a sexual offense, DUI, or a Class A or B felony; and
  4. You have not been previously granted judicial diversion or pretrial diversion

 With both Judicial Diversion and Pretrial Diversion, an application for eligibility must be submitted to the Tennessee Bureau of Investigation (TBI) for approval. Normally there is an application fee of $100, however, the fee can be waived by court order for indigent clients.   

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Tennessee Probation Violations: Top Ten Most Frequently Asked Questions

Who gets put on probation, what does it entail? In Tennessee, a judge can sentence someone to jail, probation, or a combination of both. Generally speaking, probation is often granted to offenders who have little or no prior criminal history and are charged with lower-level felonies or misdemeanors.

What is probation?

probation-violationProbation is a type of sentence in which a person is not placed in jail but released into the community under court supervision and monitored for a set period of time.  This is usually coupled with a suspended sentence.  In Tennessee, a suspended sentence is most often the same length of time as a period of probation. For example, a defendant who receives a one-year suspended sentence is most often placed on probation for the same amount of time. This court supervision is usually conducted by a probation officer. Each probation office maintains standard rules and conditions of probation. A judge may place specific and or additional conditions or rules of probation in any case.  If you violate your probation, the court could place your previously suspended sentence into effect and send you to jail.

What are the rules of probation?

The rules or conditions of probation vary from case to case.  Probation usually involves supervision by some type of probation office.  This may be a local office of the state board of probation and parole, a county probation department, or a private company with a government contract to provide probation services.  Conditions associated with a probation sentence may be noted in the court’s judgment form in a case or in a separate document usually referred to as a probation contract.  Each agency usually has a standard probation contract which they use in every case.  Common rules or conditions of probation include reporting to your probation officer on some set schedule, not committing any crimes, reporting any new arrests to your probation officer, and paying any fines and court costs in a timely manner.  There is usually monthly supervision fees charged while on probation. This averages around $35 to $45 a month.

How do you get charged with a probation violation?

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If you violate any rule of your probation you can be charged with a probation violation.  If a probation officer believes you have violated your probation, he or she will file a probation violation warrant that sets out the reason or reasons they believe you violated your probation.  This is submitted for a judge to review, and if approved by the judge, a warrant is issued for your arrest.

Can you post bail?

When a judge initially reviews a probation violation warrant submitted to him by a probation officer, he may set conditions of release.  A judge may order that the person accused of a probation violation be held without bail, set bail in a specific amount, allow the person to be released on their own recognizance or any other terms the judge deems appropriate.

What punishment can the judge give me for a probation violation?

If a judge rules that you have violated your probation, the judge could send you to jail for the full length of your suspended sentence.  The judge could, however, place you back on probation or order a combination of jail and probation.  The judge could place additional conditions on your probation or increase the length of your probation.

What happens at the court hearing for a probation violation?

Yviolation-1-2ou have the right to a hearing in front of a judge to determine whether you have violated your probation.  The judge will determine first whether you have violated your probation, and second, if so, the appropriate punishment.  At the hearing, the State has the burden to present proof establishing by a preponderance of the evidence that you violated your probation.  You may not have a jury trial for a probation violation.  You may present evidence on your own behalf.  You may wish to present evidence not just about whether your violated your probation, but also proof relevant to whether the judge should give you another chance at completing your probation or other some other sentence less than making you serve your whole suspended sentence.

What can I do to prepare for a probation violation?

Do anything and everything the Probation Officer has said you failed to do so far.  Pay fines and courts costs (get receipts), perform community service work, take classes, etc.  Additionally, gather documentation that you are working or get a job if you don’t have one already.  If you are in school, get documentation of that.  Get documentation of any treatment you have received, or seek treatment for any condition appropriate.  You may wish to get drug screens from walk in clinics on a weekly basis to present in court.  Gather letters of support and/or people willing to testify on your behalf regarding work, character, home life, family obligations, etc.

If my probation is violated, do I get credit for street time?

Probably not.  You only get credit for time actually served in jail after being first charged with this case or after being served with a probation violation warrant.  If you are serving a community corrections sentence, you can get credit for time you have been supervised in the community.

Can I appeal a probation violation?

Yes, but these are very difficult to win.  Depending on the circumstance, there may be additional courses of action to consider such as filing a motion to modify a sentence or a petition to suspend a sentence.

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Ken McKnight: The public’s defender

CANNON COURIER

KEVIN HALPERN
Courier Co-Editor
“Has Mr. McKnight ever represented
you before?”
That question is asked quite often,
nearly every week of the year, in the
courtroom of the Cannon County
Courthouse.
It’s always asked by the person sitting
on the bench, either Judge Susan Melton
of General Sessions Court, or judges Don
Ash and Robert Corlew of Circuit Court.
It is posed to a defendant in a criminal
case, one who claims they are of little
financial means.
“Mr. McKnight” is Ken McKnight,
assistant public defender for the 16th
Judicial District.of Tennessee.

Why Do You Defend Criminals?

When people find out that I am a public defender, they all want to ask me the same question: “Why do you defend criminals, especially when you know they’re guilty?” It’s a fair question; after all, it’s in our nature to want to punish “evil doers” and it seems counter-intuitive for someone to voluntarily defend such characters, especially when he could easily make more money doing something else. So I do my best to provide an answer, which usually goes something like this:
Most of the time I’m not trying to convince a jury that the defendant is innocent. The police really do get their man most of the time, and they usually have such overwhelming evidence that there would be no point in fighting the charges. In these cases, my job is to help my client understand the process (where to go, what to do, and why it’s important to do so) and to make sure that the sentence imposed is not excessive.
Other times, I have a client who is fighting the charges and wants to go to trial. Guilty or not, it doesn’t matter: in these types of cases, my job is to make the government prove its case or set my client free.
 
This is where people often get confused and wonder how any person in his right mind could defend someone who commits a crime, especially if it’s a heinous crime. What people often fail to do is distinguish between defending a person’s actions and defending a person’s rights. That distinction makes all the difference.
 
As a public defender, I am rarely in a position to defend a person’s actions. Nor do I want to. Except in cases where my client did something under unusual circumstances; for instance, shot someone in self-defense or drove a car without a license to rush his dying grandmother to the hospital; my client’s actions (or alleged actions; again, an important distinction) are not justified. And it would be pointless for me to argue that they were, if for no other reason than this: if we get to the point where I would have to argue that a criminal defendant’s actions were justified, the government has already proven that the defendant took those actions. At that point; absent the kind of unusual circumstances that would make a justification defense appropriate; the government has already won.
 
What I do every single day, however, is defend people’s rights. If the government wants to punish my client for a crime, it must first prove that he actually did commit the crime and it must do so without breaking the law itself. That’s where I come in; I make sure the government isn’t trying to pull a fast one.
 
Of course, this point generally leads to a couple of questions. The first is this; “If you know your client is guilty, though, why does the government have to prove anything?” The answer to that question is, unfortunately, not as simple as one might think.
One problem is that people sometimes think they are guilty of something when they are not. This actually happens fairly frequently. For instance, consider the following scenario, derived from a real case:
 
Thelma Thief steals a car and drives it to the house of her friend, Dan Defendant. While Dan is talking to Thelma, a cell phone lying in the seat starts ringing. Dan gives Thelma a quizzical look, gets a shrug in return, and decides to answer the call. The voice on the other end says, “Hey! You stole my car! I’ve already called the police!”
Dan says to Thelma, “Did you steal this?”
 
Thelma nods her head and says she saw it outside the post office with the engine running.
Into the phone, Dan says “I didn’t steal your car. My friend did, and I didn’t know anything about it.”
 
The car’s owner yells back, “I don’t care who you are. Just bring my car back!”
Dan tells Thelma to get out of the car. He then gets into the driver’s seat and starts to drive the car to the post office. Halfway there, he is stopped by police and arrested. He is taken to the police station, where the police ask if he knew the car was stolen. Dan, of course, tells them that he did. He is subsequently charged with theft.
 
Under these circumstances, Dan would probably think he was guilty, would tell his lawyer he was guilty, and would probably plead guilty if he did not have a lawyer willing to defend him. After all, he was driving a stolen car, and he knew he was driving a stolen car. The problem here is that under Tennessee law, he is not guilty of a crime: one of the elements of the crime is that he drove the car without the owner’s authorization, and in this case the owner gave him permission to drive the car. So if the government didn’t have to prove its case; and if there wasn’t a lawyer to defend his rights; Dan would be convicted of a crime he did not commit.
 
Another problem is that even if I know the client really did commit the criminal act charged, the government still has to prove it. It’s important for all of us that I make the government prove it in every single case. If I don’t, we no longer have a system where people must be found guilty by a jury of their peers; we have a system in which only the defense attorney has to be convinced. I don’t know about you, but I don’t feel protected in that kind of system.
 
As an extension of this problem, imagine that a defendant thinks his attorney won’t defend him if the attorney thinks he is guilty. Would the defendant, under those circumstances, feel safe telling the attorney all of the facts in the case? For instance, let’s modify the facts in the scenario above with Dan Defendant. Let’s say the police never asked Dan if he knew the car was stolen, or Dan (wisely) asserted his Constitutional rights to remain silent and have counsel. If Dan knew that a defense attorney wouldn’t defend him if he was guilty, Dan might not tell his attorney that he talked to the car’s owner on the telephone because this would show that he knew the car was stolen. Without this crucial information, Dan’s attorney would not know that Dan was not really guilty and Dan would end up convicted of a crime he did not commit.
 
So why does the government still have to prove its case when I know my client is really guilty? Because if it doesn’t, there’s no such thing as a real right to a fair trial for anyone.
The other follow-up question I usually get is this: “If your client is guilty, why should he get off on a technicality?” My answer: “What you call a ‘technicality’ I call a ‘Constitutionally-Guaranteed Right.’”
 
The Fourth Amendment to the Constitution protects your right to privacy, ensuring that the government cannot (with certain notable exceptions) break into your home, search your person, or otherwise invade any place where you have a reasonable expectation of privacy without first proving that it has probable cause to establish that you have committed a crime, or that evidence of a crime will be found. This is what keeps the police from simply coming into your house at any time of the day or night and rummaging through your things for no good reason.
 
Unfortunately, the Constitution doesn’t specify what punishment the government receives when it violates your right to privacy . . . and what good is a right if there are no means to enforce it? This is why the courts have established the exclusionary rule: any evidence obtained against you in violation of your Fourth Amendment rights cannot be used against you in court. It doesn’t matter what the evidence is; if the government obtained it by violating your rights, the government will not be rewarded by being allowed to reap the benefits of that violation.
 
I’m usually interrupted at this point. “That’s all well and good,” I’m told, “but if the police know that something’s in the guy’s house, and they go in and find it in the guy’s house, he shouldn’t get off just because they didn’t go through the proper procedures.”
The problem with this theory is that police officers are like everyone else; they make mistakes. They are often absolutely sure that they’ve got the right suspect and develop tunnel vision as a result. When this happens, they discount any evidence that would tend to exonerate the suspect and overestimate the value of any evidence that tends to incriminate the suspect.
 
So what happens when the police are absolutely sure that you committed a crime and they break into your house? What possible incentive do they have to not break into your house if they have nothing to lose by doing so? The short answer is “none.” The only protection that you and I have against these sorts of draconian invasions of our privacy is the guarantee that if the government does find evidence of a crime as a result of such a search, it will not be allowed to benefit from that discovery. This deters the government from conducting such searches and provides a strong incentive for it to abide by the law instead.
So why do I defend criminals? Because I believe that it’s necessary to do so; and to do so zealously; to protect the rights of law-abiding citizens. And because I want to live in a country where, if I’m wrongly accused of a crime, I will be able to make the government publicly demonstrate what evidence it has so that I can point out why the government is wrong.
 
And yet; most of the time, criminal defense attorneys lose their cases. It’s not that we do a bad job, or that we “throw” cases when we know our clients are guilty. On the contrary, it’s because, on the whole, we have forced the police and prosecutors do their jobs well. Most of the time, they get the right guy. They obtain enough evidence to convict. And they do it legally. When that happens, there’s not much any criminal defense attorney can do. And that’s the way it should be.

Driving Under The Influence Of Prescription Drugs

Driving under the influence does not only relate to alcohol but to drugs as well. Every week I talk to someone that has been arrested for DUI by prescription drugs who wants to use as their defense the fact that they were taking the dosage of medication prescribed by their physician.

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Well, simply put, you can get charged and even convicted of driving under the influence (DUI) without having a drop of alcohol in your system. And even worse, you may not even realize that the prescription medication is causing the same type of side effects that police commonly confuse with being under the influence of alcohol. And if you take your medication and have a glass of wine with dinner, you may be in for a rude awakening.

Almost everyone reading this has taken prescription medication. All medication directs the manner it should be taken, however often times people do not realize the true side effects of the medication. Also, some medications cause different side effects when mixed with other medications. Things like glassy eyes, slurred speech, unsteadiness on feet, and other side effects are common buzz words for police when they think someone is under the influence. People taking pain killers like lortab driving around “under the influence” completely unaware of risks. Although these are narcotics and most doctors advise you to stay off the road when taking them, other medications for things like blood pressure and anxiety are not so obvious. And when confronted by a police officer whose job is to seek out people driving under the influence, one ca55495-fulln quickly find themselves in the cross hairs following a pen and walking a line.

If a person is arrested for DUI while taking only legally prescribed medications, the legality of the prescription is not relevant to the DUI charge.  How or why the defendant became impaired is not an element of the crime of DUI; the focus is on the fact that one is simply driving or in physical control of a motor vehicle while under the influence of an intoxicant or combination of intoxicants.  The reason for impairment is irrelevant.  The elements of the crime and the penalties for driving under the influence of legally prescribed drugs are the exact same as those for driving under the influence of alcohol or illegal intoxicants. Additionally, unlike alcohol or other illegal drugs, there is no minimum or maximum threshold of prescription drug use one must consume in order to be convicted of a DUI.

This means that you can be convicted of a DUI for having even the slightest amount of prescription drugs in your system. A legal prescription is certainly relevant to prevent separate charges for the possession of drugs, but it is not a defense to the act of driving while impaired.

Common types of prescription drugs that can lead to a driving under the influence charge per the statute includes:

  • Pain medications containing codeine or oxycodone opioids such as Oxycontin or Percocet as well as hydrocodone which is generic for Vicodin, Lorcet or Lortab
  • Antidepressants such as Valium (diazepam) Xanax (alprazolam) or Desyrel (trazodone)
  • Sleep medications such as Ambien or Lunestra

I have represented several people charged with DUI who did not take a sip of alcohol. Don’t let it happen to you.

  • Know the side effects of your medication. If it says to stay away from operating a vehicle or causes drowsiness, stay off the road, especially at night.
  • Do not mix medications. It may be difficult to determine what the side effects are when mixing medications. If you do not know what will happen, experiment at home, not on the road.
  • Do not mix any alcohol with your medication. Even one beer mixed with medication can cause some undesired results.
  • If confronted by the police officer, do not make any admissions about any medication you are taking.
  • Avoid taking any field sobriety tests if asked to do so by the police officer. Although you may feel up to the task, you will do something wrong, I promise.
  • Demand a blood test if the only thing in your system if your medication. Breath tests can be unreliable and could result in an inaccurate reading that would only complicate things. And if you refuse to take a test, you could face losing your license for 1 year.

Remember, know you rights and avoid a DUI.