Criminal Law: Frequently Asked Questions

Do Not Wait to Contact an Experienced Criminal Lawyer Nashville, TN

If you have been charged with a crime, don’t wait to contact an attorney; there are several key steps that can be taken immediately after your arrest that can dramatically improve your chances of avoiding a conviction.

Our lawyers have successfully represented countless clients facing serious criminal offenses, often helping them avoid unnecessary penalties or a conviction altogether.

Contact our office online or call 615-256-6666 to discuss your specific criminal charges and learn how our Nashville criminal lawyers can be of assistance in helping you defend yourself.

Frequently Asked Questions in Criminal Law

Can I get my adult criminal arrest and/or conviction cleared, removed, or expunged?

Not all criminal records are eligible to be expunged. In some instances arrest records may be removed where the  charges are dismissed either outright or through certain diversion proceedings. Many misdemeanor and certain low level felony convictions may also be eligible for expungement. The procedures vary depending on the type of expungement you want.

Removal of Arrest Records where there is  diversion or the charges are dismissed.

Individuals may be eligible to have their public arrest records removed in instances where the charges have been dismissed, the grand jury did not return an indictment, a verdict of not guilty is returned by a jury, where a conviction is reversed on appeal, the District Attorney elects to enter a dismissal of the case otherwise called a nolle prosequi, the individual successfully completes pretrial diversion under the provisions of Tenn. Code Ann. § 40-15-105, and where the defendant successfully completes all probation provisions through judicial diversion Tenn. Code Ann. § 40-35-313. These involve the removal or arrest records where there was no conviction.

Removal of Arrest Records for certain misdemeanor or felony convictions.

Now due to a change in the law in 2012 many misdemeanor and certain low level felony convictions may be eligible for expungement .  Those convictions that are eligible for expungement require a formal petition in the county where the person was convicted. The petition must be filed after five years have passed since the completion of the sentence.   Convictions that do not fall within such limited categories are never eligible for expungement under Tennessee law. 

Those felony convictions that are eligible include persons that were convicted of one or more Class E felonies and sentenced to three years or less on or after November 1, 1989 including crimes that involve theft between $501-999, forgery up to $1,000, fraudulent use of a credit card $501-999, worthless checks $501-999, burglary of an auto, vandalism $501-$999, evading arrest in a motor vehicle where no risk to bystanders, and the manufacture, delivery, sale or possession of Schedule V, VI (marijuana) and VII drugs when charged as an E felony. The full list of such eligible offenses included within Tennessee Code Annotate 40-32-101(g)(1)(A) as amended effective July 1, 2012 can be found HERE: pc1103

Expungement is also available for those convicted of misdemeanors with the exception of many misdemeanors that involve physical force, minors, sexual offenses, and deadly weapons. A complete listing of misdemeanors offenses that are excluded can be found HERE: pc1103

If you have any questions regarding whether or not your record is eligible for expungement you may wish to obtain a copy of your criminal judgment(s) and then contact our office. We have handled many expungment cases and we have advised other lawyers about the process

If I have been convicted of a crime can I get my rights restored so I can possess a firearm?

It is possible for individuals that have been convicted of a felony to get their rights restored to allow them to possess a handgun in certain circumstances. Under federal law, all individuals who have been convicted of a felony in state or federal court are prohibited from carrying a firearm under federal law. However, an individual who has had their rights restored under State law may be eligible to possess a firearm upon successfully petitioning the court for a restoration of rights. Under Tennessee law, individuals who have been convicted of a felony involving use or attempted use of force, violence, or a deadly weapon or who have been convicted of a felony drug offense are prohibited from possessing a gun under Tenn. Code Ann. § 39-17-1307; therefore, such individuals regardless of whether or not they have had their rights restored would not be eligible under Tennessee law to possess a firearm. However, all other felons may be eligible to have their rights restored and should contact our office if they wish to file such a petition.. Even if you are not eligible to have your rights restored to carry a handgun due to a violent or drug offense, you may be eligible to have your rights restored for the purpose of being able to vote, sit on a jury, or hold public office.

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How much will representation cost?

Attorneys generally set fees in criminal cases based on the complexity of the case and only after consulting with the client regarding the facts and circumstances of the case.

Do I need an attorney?

Yes. Some people mistakenly believe that courts will show more mercy towards them if they plead guilty and do not hire an attorney. This is not true. Courts do not punish individuals for exercising their constitutional right to have an attorney, and without an attorney you are often subject to the mercy of the State prosecutor. A criminal defense attorney may be able to expose weaknesses in the prosecution’s case, possible defenses that you did not realized existed, possible consequences of a conviction that you had not considered, but in every case an attorney is necessary to ensure that you get the very best result possible since they are armed with a thorough understanding of the criminal justice system.

A criminal conviction can impact an individual for the rest of their life. Once an individual gets a criminal conviction whether it is a misdemeanor or felony, it is impossible to remove, short of a pardon from the Governor. Therefore, it is very important that you get the very best representation now with your criminal case. The prosecution witness is essentially represented by the district attorney general and you need representation also. A criminal defense attorney may be able to help you avoid a permanent conviction and all the consequences that a conviction has for future employment, education, etc.

Can I go to jail?

There is a potential that a judge could order you to serve part or all of a criminal sentence in jail. Each offense is often punished differently and to answer this question, we would need to know your criminal record and the charges that you face.

What are the possible penalties if I am convicted?

Each criminal offense is categorized by a particular classification. First Degree Murder is its own classification, but all other crimes are categorized as A, B,C, D, or E Felonies or A, B, or C misdemeanors. A Felonies (e.g.: 2nd Degree Murder, Aggravated Rape, Rape of a child, etc.) carry 15-60 years in prison with a fine of up to $50,000. B Felonies (e.g., Vehicular homicide involving alcohol, Aggravated Robbery, Rape, Theft of Property over $60,000, many drug offense, etc.) have a range of 8 to 30 years with a fine of up to $25,000 (Fines for drug offenses may exceed $25,000 and are specified by statute). C Felonies (e.g.: Voluntary Manslaughter, Kidnapping, Theft of Property $10,000 to $59,999, etc.) has a range of 3-15 years and a maximum fine of $10,000. D Felonies (e.g.: Aggravated Assault, Vehicular Assault, Extortion, etc.) carry 2-12 years with a fine of up to $5,000 and a E Felony (Statutory Rape, Harassment, Evading Arrest with a motor vehicle, etc.) has a sentencing range of 1 to 6 years and a fine of up to $3,000.

Class A Misdemeanors include DUI, underage possession of alcohol, assault, criminal impersonation and carry a maximum punishment of 11 months and 29 days and a fine of up to $2,500. Class B Misdemeanors (e.g.: Patronizing Prostitution, Resisting arrest, public indecency) carries a maximum jail sentence of 6 months and a fine not to exceed $500. Finally, C Misdemeanors include public intoxication, disorderly conduct, criminal trespass, violation of a protective order, gambling, etc. and carry a maximum jail sentence of 30 days and a fine of $50.

A particular offense may have a fine prescribed by statute and in such cases the minimum or maximum fine is the fine specified by such statute. Many offenses can carry other ramifications as well. For instance, a misdemeanor conviction for domestic violence in state court results in a permanent loss of your right to carry a firearm under federal law. Many sexual offenses carry the requirement that one’s name be placed on the sexual offender registry.

You should contact our office if you have specific questions about the penalties for each offense.

What is a “Knock and Talk” Search?

They will generally knock and say “property management” or “U.S Mail” “, but when you open the door you may find that it is really 2 or 3 police officers trying to talk their way into your living room. A routine practice of law enforcement in Nashville, Tennessee this practice is called the “knock and talk” technique.

Officers use this technique where they lack the probable cause necessary to obtain a warrant to search a residence, but when they have some suspicion that a person may possess illegal drugs or weapons in their home.

Once the resident opens the door, the police may try to pressure the resident into consenting to a search of their home or could go as far as to claim to smell an odor of an illegal drug as a basis to get a search warrant.

“Knock and talks” have been upheld as a lawful police technique in many cases; however, in State v. Blackwell, the Tennessee Court of Criminal Appeals found such technique to be unlawful where the police ignored “no trespassing” signs at the entrance to the property and continued to the person’s front door to attempt a “knock and talk.”

If someone knocks at your door, you don’t have to answer it. If you do and you find yourself charged with a criminal offense, contact a criminal defense attorney that understands your rights.

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What are the penalties for DUI in Tennessee?

FIRST OFFENSE
For the first offense, an offender shall be incarcerated for a maximum of 11 month and 29 days with a minimum of 48 hours in jail (day for day). The offender is required to be placed on supervised probation for the balance of 11 month and 29 days less time served in jail. The offender shall be fined not less than three hundred fifty dollars ($350) nor more than one thousand five hundred dollars ($1,500); the court shall prohibit the convicted person from driving a vehicle in this state for a period of one (1) year; however, such person is eligible for a restricted driver’s license. The offender is further required to attend an alcohol and drug DUI school and/or complete a drug and alcohol assessment, and complete 24 hours of community service work picking up litter along state highways over 3 separate 8 hour shifts wearing a vest with the words “I AM A DRUNK DRIVER” on the back.

In addition if at the time of the offense the alcohol concentration in the person’s blood or breath is twenty hundredths of one percent (.20%) or more, the minimum period of confinement for the person shall be seven (7) consecutive calendar days rather than forty-eight (48) hours.

If at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, the person shall be punished by a mandatory minimum incarceration of thirty (30) days and a mandatory minimum fine of one thousand dollars ($1,000).

SECOND AND SUBSEQUENT OFFENSES
For conviction on the second offense, there shall be imposed a fine of not less than six hundred dollars ($600) nor more than three thousand five hundred dollars ($3,500), and the person or persons shall be confined in the county jail or workhouse for not less than forty-five (45) days nor more than eleven (11) months and twenty-nine (29) days, and the court shall prohibit the convicted person or persons from driving a vehicle in this state for a period of time of two (2) years. Upon the conviction of a person on the second offense only, a judge may sentence the person to participate in a court approved alcohol or drug treatment program.

For the third conviction, there shall be imposed a fine of not less than one thousand one hundred dollars ($1,100) nor more than ten thousand dollars ($10,000), and the person or persons shall be confined in the county jail or workhouse for not less than one hundred twenty (120) days nor more than eleven (11) months and twenty-nine (29) days, and the court shall prohibit the convicted person or persons from driving a vehicle in this state for a period of time of not less than three (3) years nor more than ten (10) years. Notwithstanding any other law to the contrary, the fourth or subsequent conviction shall be a Class E felony punishable by a fine of not less than three thousand dollars ($3,000) nor more than fifteen thousand dollars ($15,000); by confinement for not less than one hundred fifty (150) consecutive days, to be served day for day, nor more than the maximum punishment authorized for the appropriate range of a Class E felony; and the court shall prohibit the person from driving a motor vehicle for a period of five (5) years.

If a person convicted of a violation of § 55-10-401 has a prior conviction for a violation of § 55-10-401 within the past five (5) years, the court shall order the person to undergo a drug and alcohol assessment and receive treatment as appropriate. Unless the court makes a specific determination that the person is indigent, the expense of the assessment and treatment shall be the responsibility of the person receiving it.

The vehicle used in the commission of a person’s second or subsequent violation of § 55-10-401, or the second or subsequent violation of any combination of § 55-10-401, and a statute in any other state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, part 2 of the Tennessee Code.

I Am from Tennessee but I got a DUI while visiting another State, How Do I Get a Restricted License?

This question arises quite frequently as college students that are from Tennessee will get convicted of DUI while they are away at college. It also happens to Tennessee business travelers who encounter drinking and driving charges in other jurisdictions.

Tennessee law answers this question in Tenn Code Annotated 55-0-403(d)(1) and says that if it is such person’s first DUI charge that they may apply for a restricted license to a judge of any court of the county of the person’s residence having jurisdiction to try charges for driving under the influence of an intoxicant. This means you need to go to the Circuit or Criminal Court where you live and apply for a restricted license.

The judge can allow you to allow you to drive to and from: regular place of employment;

court-ordered alcohol safety program; a college or university in the case of a student enrolled full time in such college or university; scheduled interlock monitoring appointment; and a court-ordered outpatient alcohol or drug treatment program.

What are Drug Free School Zone Laws in Nashville?

If someone finds themself charged with felony drug possession in Nashville, Tennessee, chances are before his or her case ever goes to a jury trial that he or she will face amended charges with the enhancing language relating to the drug free school zone.

Years ago, Tennessee enacted the Drug Free School Zone laws aimed at enhancing the punishment for those that sell drugs near minors. No one can challenge the intent of the law ; however, there is nothing that prevents the application of such laws against virtually any criminal defendant in a city such as Nashville. The enhanced penalties increase the sentencing range by one classification, which can basically double the sentencing range and increased the applicable fines. The penalties also require mandatory jail time when charges might have otherwise allowed for the sentence to be served on probation.

Prosecutors can add the enhanced penalties when there is proof that the defendant’s criminal act was within 1000 feet of a a public or private elementary school, middle school, high school; or public library, recreational center, park or child care. As one can imagine, in Nashville and other cities this 1000 feet boundary line can encompass almost an entire urban area. There is no requirement that the drug activity occur during school hours. Many cases stem from instances where individuals are simply driving down a major street. One might wonder if this was really the intent of the legislature, but regardless of that no one can question that the laws raise the stakes on almost every felony drug case in Nashville.

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