While extremely unpopular, Tennessee County Mayors, (and many City Mayors), have the power, under Tenn. Code Ann. sec. 58-2-110, to order masks be worn in public settings during a time of pandemic emergency. Tennessee’s Governor Bill Lee has declared the COVID-19 pandemic an emergency under Tenn. Code Ann. sec. 58-2-107. For citizens, this means that criminal citations and arrests are possible for violating any ordinance requiring masks be worn in public. Nashville has recently began strictly enforcing their version of this policy. For public institutes such as natural gas utilities, these same emergency mandates bar the utility from disconnecting a person’s home utilities for non-payment of fees due during the time of emergency. See e.g., In Re: Emergency Petition of the Consumer Advocate Unit of the Financial Division of the Office of the Tennessee Attorney General, 2020 WL 4207282 (Tenn. Pub. Serv. Comm. 7/20/2020).

Attorneys still have the ability to contact inmates via Skype, Zoom, Face-time, or other video chats during the COVID-19 pandemic. Likewise, shut-ins at nursing homes can be contacted by attorneys because the legal profession is deemed an “essential service” by state and federal governments. Most of these contacts are actually easier for the attorney than a face-to-face visit because the attorney does not have to leave their office. The attorney instead merely sets up a video visit time with the nursing home, jail or prison and then uses a laptop computer or cell phone for the visit, telling the nursing home, jail or prison how long the visit is expected to take. For the inmates, these visits are confidential, so the attorney/client privilege is not violated. For shut-ins, it depends on the circumstances of the shut-in’s health or understanding. Recently, I’ve had incarcerated clients ask that I check on family members they have not spoken to recently because of COVID-19. I simply call the loved one, then send a note to the client on how the loved one is doing. Most attorneys will offer a similar courtesy, if asked. If you need an attorney, and your case is on appeal anywhere in Tennessee, or your civil or criminal case is in the Montgomery County, Tennessee area, call attorney Gregory D. Smith at 931/647-1299.

When most people think of “DUI,” (Driving Under the Influence), they think solely of alcohol. While alcohol consumption is the most common basis for a DUI charge, it isn’t the only basis. Prescription drugs, even taken as directed, can lead to a DUI conviction. Tenn. Code Ann. sec. 55-10-411(e). Any drug or stimulant that affects the Central Nervous System to the point that one’s ability to safely drive is impaired can be the justification for a DUI charge under Tenn. Code A.. sec. 55-10-401(a)(1). Likewise, one doesn’t have to be on a street or highway to be charged with DUI. Any place frequented by the public at large, such as a Wal-Mart parking lot or an apartment complex parking lot, qualifies under Tenn. Code Ann. sec. 55-10-401(a). As a matter of fact, one doesn’t even have to be driving to get a DUI…only be in “physical control of any automobile or other motor driven vehicle” while impaired. Tenn. Code Ann. sec. 55010-401(a). Marijuana or even excessive amounts of energy drinks such as Red Bull that hamper reaction time of the Central Nervous System may be possible DUI fodder, but the traditional consumption of alcohol is by far the most common charge and easiest to prove. Tenn. Code Ann. sec. 55-10-401(a)(2) makes a blood alcohol concentration ( BAC) of .08% for normal drivers a presumption of intoxication. Tenn. Code Ann. sec. 55-10-401(a)(3) sets the BAC level at .04% for commercial drivers. It is even possibly to be charged with “DUI By Consent” for allowing an intoxicated driver to use your car if the person consenting knows the driver is intoxicated. See State v. Phillips, 967 S.W.2d 826 (Tenn. Crim. App. 1997) and Tenn. Code Ann. sec. 55-10-201.

DUIs in Tennessee are serious offenses, usually mandating some period in jail and loss of driving privileges. Tenn. Code Ann. sec. 55-10-402(a). There are similar provisions against Boating Under the Influence. Tenn. Code Ann. sec. 69-9-217(a). Careers can be ended by a DUI, especially military careers. Don’t face a DUI alone! Talk with a lawyer.

If you have a DUI charge in the Clarksville, Montgomery County, Tennessee area, call The Law Office of Gregory D. Smith at 931/647-1299 or e-mail gregorydsmith.esq@gmail.com.

Presenting an appeal is different from presenting a trial because an appellate record is a “closed record.” This means the appellate record is similar to a photograph. The trial is real-time and moving. The appellate record is a snapshot of a moment of that flowing concept of real-time. At trial, a party can present live evidence, explain their intent, and answer follow-up questions. On appeal, just like a photograph, time stops and time does not change an answer given. No new evidence is offered. Nobody gets to explain their answer after the trial ends. One must look to the photograph taken, (the appellate record), to determine the contents of the photograph or “record.” While one may wish to add or subtract from the photograph; the photograph (record) is already taken, developed, printed, and remains as taken. Appellate records usually include trial transcripts, pleadings and arguments of counsel. One must show, just reviewing what is in the appellate record, that the trial court committed reversible error.

To show “reversible error,” one must show a mistake was made at trial, and that mistake adversely impacted on the outcome of the case. Error, without impact, is called “harmless error” and will not get a decision overturned. The Appellant, (the person appealing), must show both error and adverse impact for appellate relief. This task is very different from the tactics used by lawyers at trial. One needs an experienced appellate attorney for this function. Greg Smith has presented hundreds of appeals over thirty years. If you wish to discuss your appeal, and you have a Tennessee, federal or military appeals case, you may call The Law Office of Gregory D. Smith at 931/647-1299. Initial consultations are free.

The first, and most important point, before one changes legal counsel, is to carefully consider if that move is actually in your best interest? Is the change being done out of anger, panic, or logic? No attorney can promise an outcome in court. The attorney you currently have knows your case, has been paid, and previously earned your trust. Can your concern be eased by simply sitting down with the attorney and discussing your concern? That may be worth a try before paying another attorney a second retainer to take over your case or proceeding “pro se.” (Latin for “on your own”). Likewise, an appeal is usually considered a separate case, so once a case is completed, you may seek other counsel for an appeal.

If you find that an attorney change is necessary, there are two ways to do it. First, you can personally tell your attorney “You’re Fired.” That option is self-explanatory. Second, you can hire another attorney, and then the newly retained attorney contacts the previous attorney for a “substitution of counsel.” These two procedures are fairly common and won’t be as stressful or offensive to the original attorney as one might expect. Changing counsel does not automatically waive any outstanding attorney fee owed to the original attorney or obligate new counsel to negotiate a return of fee from the original counsel. Most of the time, the new attorney stays out of that discussion.

In the case of appointed counsel, simply hiring an attorney usually ends an appointed attorney’s duty to represent a client. If an indigent criminal court defendant wants to fire their appointed counsel, but can’t afford to hire counsel, the defendant can instruct appointed counsel to file a motion to withdraw or send the court clerk a pro se motion or letter asking for a different attorney and stating why the change in counsel is necessary. The Court is not required to give new counsel for indigents simply because a defendant does not like the appointed attorney. Indigents do not get to pick who a Court appoints as the defendant’s attorney. That being said, courts frequently grant a first request for a different appointed attorney filed by an indigent defendant. Repeated requests for new appointed counsel are less frequently granted.

If you are in Tennessee and have questions about rules regarding changing attorneys, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal,(the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith .

Soldiers that are charged with a violation of the Uniform Code of Military Justice (UCMJ) can propose other punishment options instead of a “BCD” (Bad Conduct Discharge) courts-martial trial. An example of an alternative punishment would be a “Chapter 10” (Other Than Honorable) administrative discharge from the military. This option avoids a trial or potential federal criminal conviction. While a Chapter 10 may have an adverse impact on a person’s work career in the civilian world for jobs that require background security checks, (e.g., Police Officer), the option is better than a criminal conviction. If a soldier takes an “Other Than Honorable” Chapter 10 discharge, the soldier can, at a later date, petition to modify/upgrade the discharge to a General Discharge or even an Honorable Discharge. Another alternate punishment option is an “Article 15” internal punishment, which usually includes loss of pay and extra duty, but no public criminal record. If the soldier facing a military criminal trial does not ask about options other than a courts-martial, these options are often never considered by the military chain-of-command. The worst that can happen if an alternate punishment is requested by a soldier is for the chain-of-command to deny the soldier’s request for an alternate punishment and the case proceeds to trial.

If you are in Tennessee or Ft. Campbell, Kentucky and have questions about rules regarding military law, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

It is a common misconception among defendants in criminal cases that they should use the same criminal defense attorney for both the original trial and the appeal. However, the lawyer that represented you during your initial criminal case might not be the best person for the job.

An appeal is not a new trial. It is a completely unique process that requires special legal skills, knowledge and experience. It is important to select your appellate lawyer wisely — and to understand that this might not be the same person who has represented your initial case.

Lack of special skills

An appellate attorney understands the distinctive traits of an appeal versus a criminal trial. He or she should have gone to school specifically for appeals and have experience in this area of law in Tennessee. Your criminal defense attorney, on the other hand, may lack the key skills necessary to excel in the appellate process:

  • In-depth legal research
  • Intricate and dense legal arguments
  • Large amounts of writing
  • Oral arguments in court

There is a reason trials and appeals are two separate areas of law. They require very different skills. If you intend to proceed with the appeals process, find an attorney that specifically handles appeals.

No experience with the unique appeals process

Filing an appeal in Tennessee not only takes certain skills but also has a special process. The case may go to the Court of Criminal Appeals, the state Supreme Court or the U.S. Supreme Court during the different appellate phases. Your criminal defense attorney is unlikely to have the same amount of experience handling this complicated process as an appellate attorney.

No rapport with the Court of Appeals

An appellate attorney can have a history of handling cases with the Court of Appeals in your county. The lawyer most likely has a network of people he or she knows within the Court of Appeals, as well as a history with appellate court judges. These connections could help your appeal case but are not something your defense lawyer may be able to offer.

If you are in Tennessee, a federal court of appeals, or a military court of appeals and have questions about appeals or appellate attorneys, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and his work in Federal Indian Law appeals in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

If you are not familiar with appealing a court judgment, you may wonder who can make an appeal in the first place. Do both sides have an equal opportunity to appeal a Tennessee court decision, and does it work the same way in civil litigation and in criminal prosecutions? The U.S. Courts website provides answers to these important questions. If you are considering an appeal to a court judgment, you should have a reasonable idea of how to proceed.

When it comes to cases involving suing another party in court, either side has a right to appeal a judgment to an appellate court. It does not matter whether the case was decided by a jury or a judge. However, the right to appeal can be waived if the parties decide to settle the case without pursuing a decision from a jury or the bench. If a settlement is agreed to, there can be no appeal.

Appeals work differently in criminal cases. If a person is found guilty of a crime, the defendant has the option to appeal the verdict. This is not the case if the person is acquitted. A prosecutor cannot appeal a not guilty verdict to try to get a new trial because it would violate Fifth Amendment protections against double jeopardy. However, if the defendant pleads guilty, the right to an appeal is typically waived.

However, there is room for both a defendant and a prosecutor to retain the right to appeal a sentence imposed after a verdict of guilty. A defense attorney may argue that the sentence does not comply with the requirements of the law. A prosecutor can appeal on the grounds of a similar argument. Either side might also claim that the sentence violates sentencing guidelines or otherwise deviates from the guidelines.

Anyone inexperienced in matters concerning appealing a judgment can benefit from asking a professional appeals attorney to gain a better understanding of the subject. Remember that this article is only intended to inform you about appeals and not to give you any legal advice.

If you are in Tennessee and have questions about rules regarding appeals, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith’s work in appellate courts in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.