Articles Posted in Criminal Law

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The “Miranda warning” is a statement given by law enforcement to a suspect in custody, informing them of their rights. The warning is derived from the United States Supreme Court case, Miranda v. Arizona, 384 U.S. 436 (1966), which established the requirement for law enforcement to inform suspects of their rights before interrogating them.

The Miranda warning must include the following statements:

  • The right to remain silent

Under TCA 55-10-406 any person driving a motor vehicle in Tennessee is deemed to have given implied consent to a breath test, a blood test, or both to determine the person’s alcohol or drug content of their blood. A refusal to submit to one of these tests is a civil rather than criminal offense. Therefore, drivers cannot be punished with jail time but will face mandatory suspension periods of their driver’s license.

The Tennessee Court of Criminal Appeals clarified that “consent” under the implied consent statute is not voluntary consent to search but consent to certain consequences if permission to search is withheld from a driver. State v. Henry, 539 S.W.3d 223, 246 (Tenn. Crim. App. 2017).

Breath and blood tests are treated differently in Tennessee, so there are different standards and procedures prior to administering one of these tests.


What is Delta-8 THC? 

Delta-8 THC is one of over 113 cannabinoids found in the cannabis plant. Like Delta9 THC and CBD, Delta-8 THC is a natural chemical found in cannabis plants. Delta9 and CBD cannabinoids derived from legal cannabis are much more prevalent in use in Tennessee. However, Delta8 is receiving a considerable amount of attention from cannabis consumers in the State of Tennessee who want to consume a legal product and receive the unique benefits that Delta 8 provides.  

Delta-8 THC is chemically different from Delta-9 THC by only a few atomic bonds and still offers a potent high of its own. While Delta-8 THC only exists naturally in fractions of a percent, companies are finding value in concentrating esoteric cannabinoids for their unique effects and applications.(1) Because it is not contained in large concentrations in the hemp flower, it usually sprayed on hemp flower or placed in vapes, concentrates, and edibles. 

Because of its molecular structure, Delta-8 THC bonds more to CB2 receptors than CB1 receptors, allowing it to have numerous benefits on the body with fewer side-effects influencing the CB1 receptors in the brain. Ultimately, this makes the health benefits of Delta-8 THC stand out while minimizing its psychoactive effects.  

 Is Delta-8 Legal in Tennessee? 

 In December 2018, Congress passed the 2018 Farm Bill, which lifted the controlled substance designation for hemp and all its extracts except for Delta-9 THC which must be in a concentration of less than .3% on a dry-weight basis. Under current Tennessee and federal law, marijuana (illegal cannabis) is cannabis that contains more than 0.3% Delta-9 THC on a dry weight basis, while hemp (legal cannabis) contains less than 0.3% Delta-9 THC. Delta-8 is legal under both Tennessee and federal law. There is currently no limit on how much Delta-8 THC a product may contain in order to be considered legal cannabis so long as the Delta-8 THC is derived from the hemp.(2) 

DEA being the DEA 

 In 2020, DEA released the “Implementation of Agricultural Improvement Act 2018“, which outlined a very different interpretation of the 2018 Farm Bill as it relates to Delta-8 THC. According to DEA, Delta-8 THC was not covered under the 2018 Farm Bill as a derivative of hemp and is therefore illegal. Their interpretation of the plain language of the 2018 Farm Bill is based on the fact that Delta-8 THC is not present in extractable levels in hemp and must be synthesized from CBDThe DEA is thus proposing that Delta-8 be considered a synthetically derived tetrahydrocannabinols and listed as schedule 1 controlled substance.(3) This has been hotly disputed and has not been deemed final by the DEA or any governing body. 

Future of Delta-8 

Due to the benefits of Delta-8 THC and the minimal psychoactive effect it has on users, it will hopefully become more widely desired and produced by our Tennessee hemp farmers, manufactured by Tennessee businesses, and sold in retail CBD stores in Tennessee. Regulation is almost certain but not necessarily a bad thing. Responsible and informed regulation will allow the responsible manufacturers and retailers to provide consumers with safe and effective Delta-8 THC cannabis products. I only hope our conservative state legislature does not try to put the toothpaste back in the tube.  



HEMP LAW GROUP is Tennessee’s first and only legal group dedicated to representing individuals and small businesses navigate the legal cannabis industry in Tennessee. Joey Fuson, partner at Freeman & Fuson, founded Hemp Law Group and is widely considered a leader and expert in the legal hemp and cannabis industry in Tennessee. To learn more, visit

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THE GOLDEN TICKETgolden-ticket-v2-263x300

We all make mistakes and one mistake should not define a person. If this is the first time you’ve been charged with a crime or crimes, understandably you are worried. If you have gone a step further and researched the maximum punishments that accompany the crime(s) you are charged with, you are keeping yourself up at night worrying. Any criminal conviction on one’s record can have significant consequences on their ability to obtain jobs, housing, or loans. REST ASSURED. Fortunately, Tennessee has a program for one-time offenders called Judicial Diversion, although it could be more accurately described as Tennessee’s “Golden Ticket.”

In a recent Tennessee Court of Appeals decision, Luker v. Luker, M2018-00138-COA-R3-CV (Tenn. Ct. App.2018), the Court addressed whether a respondent in an Order of Protection case had a right to conduct discovery in order to prepare for the hearing.  The typical Order of Protection case is set for a hearing within fifteen (15) days of the respondent being served.  Once served, typically an ex parte order of protection is issued, which many believed was intended to protect the petitioner from harm.

In Luker, the Court of Appeals stated, much differently, that the requirement of a hearing within 15 days was intended to protect the respondent from frivolous ex parte orders of protection and not intended for the protection of the petitioner.  The Court also stated that it saw no barrier to a respondent requesting that the hearing be put for a definite period of time in order to request reasonable discovery as long as the ex parte order remained in place.  The catch in the Court’s opinion is that discovery would be granted at the trial court’s discretion, meaning that the ability to conduct discovery in an order of protection case would be decided on a case-by-case and court-by-court basis.

This opinion is extremely important because of the nature of order of protection cases.  Respondent’s get served with an order and have a court date set in a matter of days.  The petitions for an order of protection are also notoriously vague and tend not to provide dates of incidents or name potential witnesses.  Discovery in such cases allows a respondent to request more detailed information in the allegations so that they may properly develop a defense to each specific claim.

BONNAROO 2018: 9 Common Criminal Charges at Bonnaroo

With Bonnaroo 2018 in Manchester, Coffee County, Tennessee, just around the corner, it is important to keep in mind the heavy law enforcement presence that will be at the event and on the surrounding highways and interstate.

The following are the top eight crimes commonly charged at Bonnaroo:

There has been a nationwide boom in the popularity of marijuana concentrates or extracts in the past several years. Whether it is the ease of use, perceived health benefits, or increased potency, marijuana concentrates have increased their foothold in the marijuana market. Often times these marijuana concentrates are consumed in electric pens that look and smell similar to the devices used to consume tobacco oils and waxes. This has caused problems for law enforcement in the states where marijuana and marijuana concentrates remain illegal due to how discreetly these products can be carried and consumed. This also makes these products the top choice for people attending the Bonnaroo Music Festival.

Marijuana Concentrates

Marijuana concentrates and extracts go by a variety of names such as oil, wax, live resin, honey oil, shatter, press, or dabs. Regardless of the difference in the product of nomenclature, marijuana concentrates include any product produced by the extraction of THC from marijuana. Concentrates remain categorized under T.C.A. 39-17-415 – Schedule VI – under the general category Marijuana or Tetrahyrdocannibanols (THC). Based on my experience, if a citizen possesses a very small amount of marijuana concentrates or a pen with marijuana oil or wax they are usually charged under T.C.A 39-17-418 – Simple Possession/Casual Exchange – Class A Misdemeanor, and face up to 11 months and 29 days in jail, with a maximum fine of $2,500.00.

In a recent case in Nashville, Leroy Myers was charged with aggravated assault after he allegedly shot a gun in the direction of a Metro Codes employee visiting his home. Following a bench trial, the trial court found Leroy Myers not guilty of the charged offense, aggravated assault, but guilty of reckless endangerment with a deadly weapon. The trial court ruled that based on defense counsel’s argument and submissions to the court that the defendant effectively amended the indictment to include reckless endangerment. On appeal, Myers asserted that reckless endangerment is not a lesser-included offense of aggravated assault under the facts of the case and that there was not an implicit amendment to the indictment to include reckless endangerment.  The Tennessee Court of Criminal Appeals affirmed the judgment of the trial court. State v. Myers, No. M2015–01855–CCA–R3–CD, 2016 WL 6560014 (Tenn. Crim. App. November 4, 2016).

A defendant cannot legally be convicted of an offense which is not charged in the indictment or which is not a lesser offense embraced in the indictment. State v. Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997). The State, the defendant, and the trial court agreed that reckless endangerment was not a lesser included offense of intentional or knowing aggravated assault. However, when a defendant actively, yet erroneously, seeks an instruction on a lesser-included offense, the defendant effectively consents to an amendment of the indictment. State v. Greg Patterson, No. W2011–02101–CCA–R3–CD, 2012 WL 206287, at *3 (Tenn. Crim. App., at Jackson, Dec. 11, 2012)

In this case, defense counsel through his comments, submissions of case law, and argument to the court raised the issue of whether the defendant’s actions could be a lesser included offense like reckless endangerment. When the court stated it would take the matter under advisement to consider lesser included offenses like reckless endangerment, defense counsel made no objection. In furtherance of defense counsel’s argument and for the court’s consideration of lesser-included offenses, defense counsel submitted two cases for the court to consider. Both of these were reckless endangerment cases. State v. Payne, 7 S.W.3d 25 (Tenn. 1999); State v. Shaw, W2010–00201–CCA–R3–CD (Tenn. Ct. Crim. App. June 1, 2011). Based upon those facts, the trial court found an effective amendment to the indictment because the defendant actively sought to place it before the court on the uncharged offense, reckless endangerment. The trial court stated and the appellate court reiterated that the defendant cannot complain about convictions for an offense which, without his own counsel’s intervention, would not have been considered by the Court. In addition, the appellate record was incomplete and the appellate court presumed the trial court’s findings were correct.

Time is of the Essence

Aside from very limited exceptions enumerated within the post-conviction statute and discussed below, a person in custody under a sentence of a court of this state (Tennessee) must petition for post-conviction relief under this part within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of the petition shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file the action and is a condition upon its exercise. Tenn. Code Ann. 40-30-102(a).

Exceptions to the 1 year Requirement

Metro Nashville Police Chief Steve Anderson recently proposed a $50.1 million plan to purchase body cameras for all 1,440 of the city’s police officers and to install new dash cameras on 880 department vehicles. Although Mayor Barry has been a staunch supporter of body cameras, she raised concerns at the hearing on March 16, 2017. Her concerns were centered on the cost of this proposal in light of similar programs implemented in other states that were far less costly. Despite Mayor Barry’s concerns, Chief Anderson appears to be of the mindset that if the department is going to do it, it better be done right, and the cameras must be working at all times in order to insure public confidence.

Police body cameras, which provide video footage of arrests and encounters between police and civilians, are considered one way to reduce the potential for police misconduct. These cameras could also aid persons who are criminally charged in presenting a defense in addition to rebutting an officer’s testimony. On the flip side, the State could benefit from the video footage if it is relevant to the case and use it against the defendant at trial. For example, in a driving under the influence (DUI) case, the reason why the driver was stopped often becomes an issue. Common reasons for a traffic stop include following too closely, swerving over a traffic line, failure to come to a complete stop at a stop sign or running a red light. These “stop” issues, which fall under the probable cause standard, could be simplified by the video footage. In addition, incidents involving police officers using force or a citizen resisting arrest could also be clarified by video that will be preserved under this proposed plan.

To date, this proposed plan and its funding is essentially a work in progress, and we will keep you apprised of its progress and implementation. When and if the body and vehicle camera program is implemented, it will be a game changer in future criminal cases.

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