How Tennessee adverse possession law treats fences, driveways, and other encroachments and what to do if you have just discovered one on your property.
How the Debbie and Marie Act, the 2024 strangulation amendment, and Savanna's Law affect anyone charged with domestic assault in Tennessee.
Tennessee’s order of protection laws have expanded significantly. What changed, who qualifies, and what happens if you’re served — or need protection.
Tennessee's gun laws carry mandatory minimums that stack. We explain what you're actually facing and why early legal help matters.
Tennessee divides marital property through equitable distribution, not a 50/50 split. What that means for your assets, your retirement, & your future.
A speeding ticket or traffic citation for a CDL driver can have a serious effect on their employment. While a non-CDL driver may be eligible for traffic school to keep a traffic citation off their driving record, there are some limitaitons on what Courts are allowed to do with citations for CDL drivers. 49 CFR § 384.226- Prohibition on masking convictions: The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State. A CDL driver may appear before a judge who indicates their hands are tied and they have no options but to either find the CDL driver guilty or not guilty. As stated above in the federal anti-masking statute, the Court cannot mask a CDL driver’s traffic conviction, defer judgment, or allow them to enter into a diversion program (such as traffic school). While the Court may be limited in options once there is a conviction (a finding of guilt), the Department of Safety’s website provides additional information on the subject. According to www.tn.gov , a judge MAY downgrade a traffic offense, find the driver not guilty, or plea bargain the charge as long as those actions take place BEFORE a conviction. This does not require the Court to allow plea bargaining or downgrading, but it does provide authority for the Court to rely on should the Court want to assist the CDL holder. If you find yourself in this situation, it may be beneficial for you to provide this authority to the Court, in a tactful way, to educate the Court on additional options the Department of Safety provides. https://www.tn.gov/safety/driver-services/commercial-driver-license/cdlcitation.html
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 the m. The Miranda warning must include the following statements: The right to remain silent Anything said can and will be used against them in court The right to an attorney If they cannot afford an attorney, one will be appointed to them If law enforcement fails to give the Miranda warning before interrogating a suspect, any statements made by the suspect may be inadmissible in court. This is because the failure to give the warning violates the suspect’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. The legal analysis in cases where the Miranda warning is not given typically centers around whether the suspect was in custody and being interrogated at the time of the statements. If the suspect was not in custody or being interrogated, the Miranda warning is not required. However, if the suspect was in custody and being interrogated, the court will consider whether the Miranda warning was given and, if not, whether the statements made by the suspect were voluntary. In other words, the court will look at whether the suspect made the statements freely and without coercion. Miranda rights may be waived by a suspect if the waiver is made “voluntarily, knowingly, and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Supreme Court of Tennessee explains that “voluntarily” under Miranda means that the relinquishment of the right to remain silent “is the product of a free and deliberate choice rather than the product of intimidation, coercion, or deception.” State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). Additionally, the statements must be made “with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. at 544. If the court determines that the statements were involuntary due to the lack of a Miranda warning, then the statements will be suppressed and cannot be used against the suspect in court. This can significantly impact the prosecution’s case and may even result in charges being dropped or reduced. It is important for clients to understand their Miranda rights and the importance of remaining silent when in police custody. Even if the Miranda warning is given, it is always advisable to remain silent and request an attorney. Anything said to law enforcement can be used against the suspect in court, and even innocent statements can be misconstrued or taken out of context. By remaining silent and requesting an attorney, the suspect can ensure that their rights are protected and that any statements made are done so with the advice of counsel. Furthermore, clients should understand that law enforcement may use various tactics to obtain information, including deception or coercion. By remaining silent, the client can avoid inadvertently providing information that may be used against them or falling prey to law enforcement tactics. In conclusion, the Miranda warning is an essential component of the criminal justice system, designed to protect suspects’ constitutional rights. Clients should be aware of their Miranda rights and the importance of remaining silent in police custody. By doing so, they can ensure that their rights are protected and that any statements made are done so with the advice of counsel.
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. A breath test may be mandated based on: Driver’s implied consent; Driver’s express consent; A search warrant; Incident to a lawful arrest for a DUI; or An officer having probable cause that a driver caused an accident while DUI, is DUI with a minor under the age of 16, or has a prior DUI conviction. A blood test may be mandated based on: Driver’s express consent to submit to a blood test along with a written waiver; A search warrant; or Without the consent of the driver if exigent circumstances to the search warrant requirement exist. It is important to note that an officer may not rely on the implied consent statute to mandate a blood test in Tennessee. The Tennessee Criminal Court of Appeals held that because of the intrusion into privacy inherent in a forcible blood draw, this search would not be found reasonable under the Fourth Amendment unless performed pursuant to a warrant or an exception to the warrant requirement. State v. Wells, Tenn. Crim App. Lexis 933, at 13 (2014). The implied consent law does not create such an exception and does not satisfy the requirements of the Fourth Amendment. State v. Henry, 539 S.W.3d223, 243 (Tenn. Crim. App. 2017). Therefore, to meet the statutory requirements for implied consent for a blood draw in Tennessee, an officer must: Have probable cause to conduct a traffic stop, inform the motorist of the consequences of refusal under implied consent; and Have the driver sign a standardized waiver developed by the Department of Safety. If the two prongs listed above are not met, the officer must obtain a search warrant or rely on another exception to the warrant requirement to withdraw blood from the motorist. Attached please find the current Consent Waiver used by Tennessee law enforcement. Implied Consent (SF-0388) Rev 7-01-19 Katherine Haggard, Esq. Associate, Freeman & Fuson
What is Delta-8 THC? Delta-8 THC is one of over 113 cannabinoids found in the cannabis plant. Like Delta–9 THC and CBD, Delta-8 THC is a natural chemical found in cannabis plants. Delta–9 and CBD cannabinoids derived from legal cannabis are much more prevalent in use in Tennessee. However, Delta–8 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 CBD. The 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 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 www.hemplawgroup.com . https://www.tn.gov/content/dam/tn/agriculture/documents/industrial-hemp/Industrial%20Hemp%20Fact%20Sheet.pdf
“Can my social security check be garnished for child support” is a question some parents may find themselves wondering. The answer to that questions depends on the type of social security benefit the parent receives. Two main types of benefits are Social Security Disability Income (SSDI) and Supplemental Security Income (SSI). SSI vs. SSDI: The Tennessee Supreme Court in Tennessee Dept. of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990) provides a detailed explanation of the comparison of SSI benefits to SSDI benefits. SSI benefits are a form of public assistance and are not dependent upon the earnings a person previously had. SSI is a safety net program to assist people who are entitled to little or no income from Social Security Disability Income (SSDI). Only after all other sources have been explored is eligibility for SSI benefits determined. Hence, the amount of money to which an SSI recipient is entitled is contingent upon how little a person makes or has made rather than how much. An eligible SSI recipient’s benefits are the amount necessary to raise the recipient’s income to the prescribed minimum level. However, the amount of a Social Security disability recipient’s benefits is keyed to how much that person has paid into the Social Security system over time as a form of renumeration for employment. The most important distinction between the two types is the person(s) entitled to receive benefits under the program. Implicit in the SSI program is the intention that these payments are for the benefit of the individual recipient, rather than for the benefit of the recipient and the recipient’s dependents. By contrast, SSDI payments benefit the receipt and the recipient’s dependents. CALCULATION OF CHILD SUPPORT The State of Tennessee calculates child support based on the gross monthly income of each parents, the number of days each parent exercise with the child(ren) annually, insurance and work-related childcare each parent incurs, as well as a number of other factors. While this process may seem as simple as inputting numbers into the child support calculator, disputes frequently arise over what an individual’s actual gross income is. The Tennessee Child Support Guidelines describes gross income as income from any source (before deductions for taxes and other deductions such as credits for other qualified children), whether earned or unearned, and includes disability or retirement benefits that are received from the Social Security Administration pursuant to Title II of the Social Security Act, whether paid to the parent or to the child based upon the parent’s account. However, the guidelines specifically exclude Supplemental Security Income (SSI) received under Title XVI of the Social Security Act. The Tennessee Child Support Guidelines also includes a provision for a minimum amount of child support of at least $100 per month. This minimum requirement does not apply if the obligor parent’s only source of income is Supplemental Security Income (SSI). Unfortunately, this is not always a clear-cut rule. Whether or not an SSI recipient has any other income eligible to be considered for child support purposes may be an issue the judge has to determine at a hearing if the other party contests such issue. REASONS FOR GARNISHMENT Current Child Support Obligations As it relates to a current child support obligation, the Tennessee Supreme Court in Tennessee Dept. of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990), held that SSI benefits were not subject to legal process in Tennessee state courts for payment of court-ordered child support. Specifically, the court found that allowing the SSI recipient’s monthly benefit to be reduced by the collection of child support obligations would reduce the recipient’s already low-income level even more. By the nature of receiving such benefit, the individual already has little if any opportunity to raise that level because of their age or disability. Subtracting child support payments, in the variable amounts set by state trial judges, from this already low figure would reduce the individual recipient’s income below the “guaranteed minimum income level for aged, blind, and disabled persons,” Schweiker v. Wilson, supra, 450 U.S. at 223–224, 101 S.Ct. at 1077, which is the essence of the legislative intent behind the SSI program. Tennessee Dep’t of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594, 598 (Tenn. 1990). Judgment for Child Support Arrearages As it relates to judgments for child support arrearages, the Tennessee Court of Appeals in In re Jordan H., No. E2013-01731-COA-R3JV, 2014 WL 1233227, at *2 (Tenn. Ct. App. Mar. 25, 2014) held that that SSI benefits cannot be attached and/or garnished to satisfy a judgment for child support arrears. While the court may still grant one parent a judgment for child support arrears against a parent who receives SSI benefits, the Court cannot attach or garnish the SSI benefits to pay an arrearage judgment. In conclusion, SSI benefits, codified at 42 U.S.C.A. § 1381, were created by a 1972 amendment to the federal Social Security Act and were intended “to assist those who cannot work because of age, blindness, or disability,” S.Rep.No.92–1230, p. 4 (1972) S.Rep.No.92–1230, p. 4 (1972), by “setting a Federal guaranteed minimum income level for aged, blind, and disabled persons. Schweiker v. Wilson, 450 U.S. 221, 223, 101 S. Ct. 1074, 1077, 67 L. Ed. 2d 186 (1981). As a result of such federal law, SSDI benefits can be garnished for child support purposes but SSI payments cannot. In re Jordan H., No. E2013-01731-COA-R3JV, 2014 WL 1233227, at *3 (Tenn. Ct. App. Mar. 25, 2014). ADDITIONAL RESOURCES: Tennessee Child Support: https://www.tn.gov/humanservices/for-families/child-support-services/child-support-guidelines.html Guidelines: https://publications.tnsosfiles.com/rules/1240/1240-02/1240-02-04.20200510.pdf Calculator: https://www.tn.gov/humanservices/for-families/child-support-services/child-support-guidelines/child-support-calculator-and-worksheet-1.html Social Security Administration: SSDI: https://www.ssa.gov/benefits/disability/ SSI: https://www.ssa.gov/benefits/ssi/