For Bonnaroo Goers: Small Infractions Can Lead To Big Charges

June 11, 2014

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Every year around this time our firm gets a flood of calls from people who receive criminal charges while on their way to or while leaving Bonnaroo. They have ranged from simple possession and paraphernalia to felony drug charges. Regardless, each call starts out the same, "I was pulled over for.....", which leads to their car getting searched and ultimately them leaving with a court date they had not planned for. So in preparation for this annual event, we at Freeman & Fuson have compiled a list of the top 5 reasons we have seen for Bonnaroo patrons getting pulled over and the counties they seem to occur in the most.

1. Speeding (TCA §55-8-152) - This may seem obvious, but many people who are on their way to Bonnaroo are in a rush to get there. Speeding is an easy way to get your car pulled over and give the officer a chance to make contact. The easy advice is to set your cruise control and keep a look out for the posted limits.
2. Following too Closely (TCA §55-8-124) - Getting pulled over for following to close to the car in front of you may be the most subjective reason on the list, but it is one we have seen each Bonnaroo season with more frequency. Make sure you keep plenty of distance between you and the car in front so that this is not even an option for an officer to pull you over.
3. Failure to use Turn Signal (TCA §55-8-143) - For 359 days a year you can probably not use a turn signal while changing lanes (we endorse that you always use a turn signal) and never have an issue. But while Bonnaroo is going on, this is an easy way for one of the State's Judicial Drug Tasks Forces to pull people over and try to search their car.
4. Littering (TCA §39-14-502) - Cigarette butts! Yes, in Tennessee, throwing cigarettes out the window is considered littering and makes you an easy target to get pulled over. Toss them in a bottle or in your ashtray until you get to where you're going.
5. Light up your License Plate (TCA §55-4-110) - A new law came on the books right after Bonnaroo last year and we wouldn't be surprised if it is enforced with some extra vigor. A lot of you will drive through the night and along with checking your headlights, taillights and brake lights, make sure the little lights on your license plate work too. In Tennessee, if your car has lights over the license plate, they are required to be working.

While every county in the mid-state will be looking for people headed to and from Bonnaroo, a few counties here look harder than others. Sumner County, Rutherford County, Montgomery County and of course Coffee County are a few we get the most Bonnaroo related calls. Davidson, Williamson and Wilson Counties are also in the running when it comes to Roo related cases.

For more information regarding marijuana and other drug related charges, go to freemanfuson.com.

New Tennessee Law Criminalizes Drug Abuse During Pregnancy

May 2, 2014

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On April 29, the Tennessee Legislature passed a bill that will allow a mother to be prosecuted for causing a child to be born addicted or harmed because of her illegal use of narcotics during the pregnancy. The bill will allow a woman to be prosecuted for assault if the infant she is carrying is harmed or dies. The bill has an unusual sunset provision, which means that the criminal penalty will be in effect until 2016. After that time, the legislature will revisit the issue. Tennessee has criminalized drug use during pregnancy in the past, but opponents said the measure would prevent women from seeking prenatal treatment or from entering rehabilitation programs. The legislature decriminalized it for a few years, but with the use of prescription narcotics on the rise, the law has been revived.

Critics of the measure focus primarily on the rights of the mother, while supporters view that the health and safety of children should be a primary focus. In either case, the reality is children in Tennessee are being born addicted to drugs. Last year alone, there were 921 babies born dependent on prescription medication. This year, the number so far is 253 at the time of this post.

While all Tennesseans would agree that the state should protect infants from being born addicted or even from death due to the illegal actions of their mothers, the law raises some interesting questions, such as does it in fact deter women from seeking treatment? Should there be some kind of amnesty for a woman who willingly enters an addiction program to get better and protect her baby? Who will bear the cost of caring for the infant that is born to an incarcerated mother? What is the best interest of the child in all of this? Is incarceration or the fear of incarceration even a deterrent to a drug addict? What purpose does incarceration serve in preparing the woman to be a fit mother?

As "pain clinics" and illegal distribution of prescription medications continue to flourish in Tennessee, children will continue to suffer as their parents, and in this case, their mothers, deal or do not deal with their addiction. Tennesseans should look to creative solutions that consider the best interest of the mother and the infant so that both are able to live healthy, stable lives.

If you or someone you know is concerned about the effect of this law on her life, please contact the attorneys at Freeman and Fuson. Our experienced criminal defense attorneys can counsel you on your legal options with a view to providing a solution that will help protect both the mother's rights and the health of a child in this situation.

Links:
http://www.tennessean.com/story/news/politics/2014/04/29/tn-will-criminalize-moms-using-drugs-pregnant/8473333/

http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB1391

Anchor Down: Tennessee Laws On Boating Under the Influence

April 14, 2014

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With Summer right around the corner there's no doubt many of you will be looking to hit the waterways. With that in mind, it may be a good time to remind everyone of the drinking and boating laws in Tennessee. Boating under the Influence is covered under Tenn. Code Ann. § 69-9-217 and states:

It is unlawful for any person to operate a vessel subject to registration on public waters of the state while under the influence of any intoxicant, marijuana, narcotic drug or drug producing stimulating effects on the central nervous system or while have blood alcohol content of .08% or more..

Boating under the influence is not limited to just boats that have a motor, but includes any type of watercraft that is required to be registered under Tennessee law. Boating under the Influence as a first time offense is considered a Class A Misdemeanor and can carry the following penalties:

- Fines from $250.00 to $2,500.00;
- 11 months 29 days in confinement;
- Suspension of boating license up to 1 year;
- Trash and litter removal; and
- Probation with such conditions as completion of an alcohol safety boating program or alcohol rehab

During the 2013 Fourth of July weekend alone, Tennessee Wildlife Resource Agency checked more than 3,300 vessels, made 10 arrests for BUI and issued more than 160 citations. There is one very important exception to this law and that is that it does not apply when the boat is anchored.

So, anchor down or have a sober boater ready to drive you around.

BOLO: Be On the Look Out: Tennessee Highway Patrol Kicks Off Campaign to Enforce Texting While Driving Law

April 9, 2014

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On April 3rd the Tennessee Highway Patrol announced a campaign that will take aim at distracted drivers. We have all seen these drivers, and we maybe ones ourselves. This campaign includes placing troopers and local law enforcement in SUVs and tractor-trailers so that they can get a better vantage point to see if drivers are texting. The goal of the new campaign is to reduce traffic fatalities statewide.

Tennessee enacted the "Texting while Driving Law" in July of 2009. As a law firm that handles a large number of traffic citations, this law has not been enforced with any regularity until now. Texting while driving is covered under Tenn. Code Ann. § 55-8-199 and is a very specific statute. In part it reads:

"No person while driving a motor vehicle on any public road or highway shall use a handheld mobile phone to transmit or read a written message."

The law only applies to when a vehicle is in motion and does not apply to a person dialing a phone number or receiving a call. Texting while driving is a Class C Misdemeanor and is considered a non-moving traffic violation.

Most of us think that the act of typing is what is prohibited but based on the language of the law even reading a text or email will get you pulled over. We all do it, but the best advice is to use a hands free device if you are going to talk while you drive, and you should wait to read your texts and emails until you get where you are going or at least until you are stopped. Waiting to read a text or email or responding to one won't hurt you and will not cost you anything but getting a ticket or causing a wreck will cost a trip to court and a fine and might end up getting you and others on the road hurt.

http://www.wbir.com/story/news/traffic/2014/04/03/thp-distracted-driving/7282009/

Being Convicted Of Domestic Assault In Tennessee Will Keep You From Owning A Gun

April 8, 2014

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Did you know that if you plead guilty even to a misdemeanor domestic assault in Tennessee you will be prohibited from not only owning a gun or other firearm but you cannot be involved in the sale of guns, firearms, and even ammunition?

Recently the United States Supreme Court ruled that an individual who is convicted of misdemeanor domestic assault in Tennessee may not possess or be involved in the commercial sale of firearms or ammunition.

Congress enacted §922(g)(9) to "close a dangerous loophole" in the gun control laws; while felons have been barred from possessing firearms, many persons convicted of misdemeanor domestic assault were still able to do so. The statute provides that any person who has been convicted of a misdemeanor crime of domestic violence may not possess a firearm.

The issue in US v. Castleman revolved around the definition of domestic assault under Federal code §922(g)(9) and the definition of domestic assault under Tennessee Code §39-13-111(b). Under §922(g)(9) domestic assault is defined as an offense that is a misdemeanor and has an element, use or attempted use of physical force or threatened use of a deadly weapon. Under Tennessee law, which Castlman was originally convicted of, misdemeanor domestic assault is intentionally or knowingly causing bodily injury to another.

In 2008 Federal authorities learned that Castleman was selling guns on the black market, and he was later indicted on two counts of violating §922(g)(9). Castleman moved to dismiss the charges arguing that his Tennessee domestic assault conviction did not qualify as a "misdemeanor crime of domestic violence" because it did not have, as an element, the use of physical force.

Don't agree to plead to a misdemeanor domestic assault charge without knowing your rights. Freeman and Fuson can help explain your options so you don't give up one your greatest rights as a United States citizen- the right to own a gun.

Forced Blood Testing in Tennessee: Tenn. Code Ann. 55-10-406 (f) amended January 1, 2012

May 8, 2012
House Bill 0715 amended Tenn. Code Ann. 55-10-406 (f) Tennessee Blood Testing and Implied Consent Law to add additional ways the State of Tennessee can take your blood without your consent for the purpose of determining blood alcohol content. These new laws became effective January 1, 2012. http://www.capitol.tn.gov/Bills/107/Bill/HB0715.pdf.


Originally, according to Tenn. Code Ann. 55-10-406 (f), if a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed a violation of § 39-13-213(a)(2), § 39-13-218, or § 55-10-401 the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood.

In addition to the original section (f), amended sections (2) and (3) state that if a police officer in Tennessee has probable cause that you have been drinking and driving, and one of the following factors exist, the officer "shall" cause the driver to be tested for the purpose of determining the alcohol o1 drug content of the driver's blood:

1. Driver has been previously convicted of § 39-13-213(a)(2) (vehicular homicide), § 39-13-218 (aggravated vehicular homicide) or § 55-10-401 (DUI); or

2. A passenger in the motor vehicle is a child under sixteen (16) years of age.

Furthermore, regardless of the reason for the testing under section (f), the blood test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

So, anyone who has pled to a DUI and is stopped by a police officer for suspected DUI, can be forced to give their blood. The new changes to the Implied Consent laws are just now being enforced by police officers in Tennessee and cases involving forced blood tests for repeat DUI offenders are just now making their ways through the Courts. These new laws must be challenged. If you have been forced to give blood following suspicion of DUI, seek an experienced lawyer to defend you in Court.

Show Me The Money: Civil Asset Forfeiture in Tennessee

April 11, 2012

Civil Forfeiture

In Tennessee, the police can seize your car, take your money, take your personal property, take your home, sell these items and use the proceeds of that sale for their benefit without the person being found guilty of a crime. In fact, the police can seize and sell these items without even charging the owner with a crime. And worst of all, the laws in Tennessee promote this activity.

Civil forfeiture is different than criminal forfeiture. In Tennessee, in civil forfeiture cases the police only have to show by a preponderance of the evidence that the property sought to be seized is related to a crime or criminal activity. In criminal cases the court must prove a Defendant guilty beyond a reasonable doubt. Next, in criminal forfeiture cases the property is seized following a criminal conviction. In civil forfeiture proceedings, no criminal charges need to exist. If they do exist, the police can take your property or money regardless of the outcome. Additionally, in criminal forfeiture cases the property is the object of the prosecution and the owner makes a claim on the property through the procedures set forth in Tenn. Code Ann. 40-33-201 et. seq. The majority of the forfeiture cases in Tennessee are civil.

Civil asset forfeiture laws in Tennessee were given a (D-) by the Institute of Justice in their comprehensive study of civil forfeiture laws of the United States named Policing for Profit: The Abuse of Civil Asset Forfeiture (http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf). The grade was based on several factors. One of the main reasons for the low grade is that in Tennessee owners are effectively presumed guilty and in innocent owner claims bear the burden of proof to recover their property. In Tennessee, the police have the lower burden of proof of preponderance of the evidence to prove that the property sought to be seized is related to criminal activity. And once they seize the property or cash, they keep 100% without having to report how they used the proceeds. Basically, the Institute of Justice thinks Tennessee is doing a poor job protecting the constitutional rights of its citizen as it relates to civil forfeiture laws.

Channel 5 News Report

The local media also thinks Tennessee police officers are doing a poor job. In Channel 5 news report last year, the news channel spent months investigating the drug interdiction officers in various counties and on several task forces. One particular incident covered in the news report involves an officer seizing a vehicle on the Interstate 40 without any reason. Although he alleged the driver of the vehicle was swerving, the helicopter in the air tells a different story. It has nothing to do with swerving as the video clearly shows and has everything to do with profiling. Police in Tennessee admittedly profile and it is being used by each and every police officer sitting on the side of the interstate. These officers often pick their target based simply on the type of vehicle and the state the vehicle is from. They then get behind or beside that vehicle and basically track the vehicle until it commits a "traffic violation". As the video shows, if the driver does not commit a true violation of the law, the police often still choose to go ahead and stop the vehicle despite it being a direct violation of the Tennessee and US Constitution.

http://www.newschannel5.com/story/14643085/police-profiting-off-drug-trade

Money, Money, Money

So why do the police do this? Money, Money, Money. The State of Tennessee receives millions and millions of dollars each year from civil asset forfeiture. They are among the highest in the country on the percentage of proceeds that go to law enforcement. And while some states use this money for education and public works, Tennessee allows local law enforcement to spend this money on drug enforcement. If the local police did not need any more incentive, the local law enforcement agencies receive 100% of proceeds for their respective agency. They cannot spend it on their salaries, but they do spend it on their agency which continues to operate in large part due to the millions of dollars they bring in each year.

When Phil Williams asked Kim Helper, District Attorney for the 21st Judicial District, whether it was all about making money, she responded: "Well, you know, when you say 'make money,' I guess it is a way for us to continue to fund our operations so that we can put an end to drug trafficking and the drug trade within this district."

Further proof that the police activity is based on the money, sources reveal that the police on Interstate 40 are pulling over vehicles on the westbound lane of the interstate at a much higher rate than on the eastbound lanes. This is because they believe that drugs go east and money goes west. So they are clearly following the money and not the drugs. Again, the police agency that seized the property keeps 100% of the proceeds!

How Do You Fight Civil Asset Forfeiture?

To get your property back, you must file a claim with the Tennessee Department of Safety within thirty (30) days of receipt of the civil forfeiture notice. Failure to file a claim will result in a waiver of the owners' rights to claim the property or cash and will result in permanent forfeiture. See http://www.tn.gov/safety/thp/forfeit.shtml. The person claiming the property is entitled hearing in front of an administrative judge. If the owner loses at the administrative level, they can file an appeal in the Chancery Court. A final appeal goes to the Court of Appeals and Supreme Court the same as any civil case.

Hire a Lawyer

The person claiming the property is entitled to a lawyer. Because the laws in Tennessee do not favor the owner of property who has been targeted by local police, hiring an experienced trial lawyer is very important. Many lawyers offer free consultations for asset forfeiture cases and can provide invaluable assistance in your fight to reclaim your property and money.

Freeman & Fuson to relocate to 9 Music Square West

February 15, 2012

On Monday, February 13, 2012, Freeman & Fuson made the decision to relocate their office to 9 Music Square West. The location is an early 1900's Victorian House located directly across from Sony Entertainment on Music Row. The beautiful home will have a full media/conference room, 5 offices, 2 bathrooms, and a lobby for clients. We plan on being relocated by June 1, 2012.

This is a defining moment for our law firm. We made this decision knowing it will help our law firm service our existing client base more effectively while allowing us to become more visible and attractive to new clients.

Please come out and see the new building when we have our Open House this Spring 2012. Thank everyone for their support.

State of Tennessee v. George Matthews

August 10, 2011

After four (4) years criminal and at the verge of a second trial, we resolved the State v. Matthews. Following a successful appeal to the Criminal Court of Appeals, the appellate Court remanded the case to the trial court for a new trial. See State of Tennessee v. George Washington Matthews, M2009-00692-CCA-R3-CD. The defendant was convicted by a Davidson County Criminal Court jury of the lesser charge of facilitation of the sale of 0.5 grams or more of cocaine, a Class C felony, and possession of drug paraphernalia, a Class A misdemeanor. 0.5 grams. Following the appeal, Judge D. Kelly Thomas, Jr. reversed the judgments of the trial court because the trial court failed to fulfill its role as the thirteenth juror and remanded the case back to the trial court for a new trial. The second trial was set for Monday, August 8th, 2011 before the Honorable Seth Norman. Following negotiations with the State and as a result of a favorable ruling in the Court of Appeals, we finally reached a favorable settlement days before a second trial was scheduled to take place.

It goes to show that appeals work and if you fight hard enough you can get a favorable result for your clients. If anyone needs your case appealed to the Criminal Court of Appeals, contact my office and schedule a free consultation.

What Your Employer Will Not Tell You About Unemployment Benefits

April 3, 2010

A small, quickly growing portion of my law practice involves helping people obtain unemployment benefits or defending employers who are seeking to avoid paying benefits. In these tough economic times, it may be the difference in losing your home or not. I have a tougher time understanding why employers fight so hard, but when an employee is physically molesting your customers and you fire them, it may be difficult to deal with the idea of paying them a salary for the next year.

Despite the reason you may find yourself dealing with unemployment benefits, knowing the unemployment laws and the rules of procedure can be the difference in obtaining benefits or not. Most people mistakenly think the employers have the advantage because they think the department of labor will just believe what the employer says. NOT TRUE. The unemployment laws are actually written to benefit the employee! And it is the burden of the employer to prove their case, not on the employee. And more times than not, the employer will either not be prepared for the hearing with witnesses and evidence of misconduct; will not have proper people available from the company; will not know the law; or will simply not fight the case once a lawyer is involved.

In these tough times, know your rights, hire an attorney, get the benefits you deserve. It may be the difference...

Mistaken Identity Arrests On The Rise?

April 3, 2010

"A mistaken identity arrest occurs almost every day, said policing experts and officials at the National Association of Criminal Defense Lawyers."

One lady in Colorado was discussed in this CNN report from February 2010.
http://www.cnn.com/2010/CRIME/02/15/colorado.mistaken.identity.arrest/index.html

I have recently been retained in a case like this in Middle Tennessee. It is pretty scary and happens all too often. One way this could happen to you is if you are simply confused with another person who has a warrant for his arrest. You think you are about to be home for supper and a movie, next thing you know you are in jail for three days. Although you would think the police department would have ways to identify each person in their system, they make mistakes. These mistakes are often human error. So while Joan Doe has a warrant for her arrest and you just so happen to be recently married Joan Smith Doe, you may be in for a long weekend.

Ms. Doe: "Officer, I swear that is not me...I have never been in trouble, it must be a mistake..."

Officer: "Lady, we do not make mistakes....you can talk to the judge on Monday"

Another way this could happen is when you have had your name in the system for whatever reason, and either the clerk, police department or probation department simply fail to do their job. This occurs when they fail to remove you from the system, incorrectly confuse you with another person in the system, or fail to acknowledge that a warrant has been served and resolved.

Ms. Doe: "Officer, I swear I did my community service, paid everything, it has been 7 years since that happened..."

Officer: "I bet you did lady, you can tell that to the judge on Monday"

My friends, clients, and members of Fuson Law, P.C. Facebook Page, this could happen to you. I have had three cases involving this happening in the past two years.

My thoughts, if this does happen to you, be courteous to the officer and call me at 615-717-5176 and I will come to the police station.

Going forward, I would think that with laziness in this country at an all time high and with budget cuts in the government every year, these mistakes will continue to happen and may even increase in the future.

Know your rights, know an attorney, and be safe!

DUI and Prescription Meds: Not What the Doctor Ordered

February 14, 2010

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 unfluence" 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 can quickly find themselves in the cross hairs of a DUI taskforce cop following a pen and walking a line.

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

Here is my advice:

- 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.

www.fusonlaw.com

Defendant smacks lawyer and gets rewarded with new trial?

January 29, 2010

This is a Shelby County Case that was reported by the TN Supreme Court at http://www.tncourts.gov/OPINIONS/TSC/sc1qtr2010.shtml

State of Tennessee v. Tommy Holmes -Shelby County- Supreme Court granted permission to appeal in this case to address whether the trial court erred in ruling that an indigent defendant forfeited his right to counsel at trial by telling his appointed lawyer, "I know how to get rid of you," and, at a subsequent meeting, physically assaulting his lawyer by striking the lawyer«s eyeglasses with his finger. The defendant was tried by a jury pro se and convicted of aggravated rape. Supreme Court held that, under the facts and circumstances of this case, the trial court committed reversible error in ruling that the defendant had forfeited his right to appointed counsel at trial. While the defendant«s physical attack on his lawyer was serious misconduct, it did not rise to the level of "extremely serious misconduct" sufficient to warrant an immediate forfeiture. State v. Carruthers, 35 S.W.3d516, 548 (Tenn. 2000). Because the defendant was erroneously denied his fundamental constitutional right to counsel, we must reverse his conviction and remand this matter for appointment of new counsel and a new trial. The judgment of the Court of Criminal Appeals is reversed.

2009 Nashville Scene Readers Poll

January 28, 2010

Joseph Fuson was voted Top 3 Best Attorney in Nashville by the 2009 Nashville Scene Readers Poll. Thanks to everyone who voted!

SEATBELTS: Not just for safety anymore...

January 26, 2009
I want you to think about your seatbelt for one minute. Clearly it could save your life, but it could also help you avoid a DUI. One thing I want everyone to be aware of are the police officers looking for people without their seatbelt after hours. Although it is very unlikely that you would ever be pulled over for "driving without your seatbelt" during the daytime, it is the perfect tool for police officers to begin their DUI investigation of people driving after hours. If you are pulled over and have not had anything to drink, the officer will likely give you a warning and send you on your way. If you smell like alcohol or have the typical indicators of intoxication, you could be looking at a charge of DUI and a night in jail.

Simply put: Wear your seatbelts! This simple two second action could help you avoid a DUI. It could also save your life!

Your friend and attorney, 

Joey Fuson
615-717-5176
www.fusonlaw.com