Author Archives: Damon Wooten

The Difference Between A Restraining Order & Order of Protection

In Tennessee there are two options when it comes to seeking protection from physical abuse, threats or harassment. They are both similar in whom they protect but each have different requirements. Both orders are issued by the court and civil in nature, but violations are punished as criminal contempt of court.

An order of protection orders the abuser to cease all contact of any kind with the victim for a period of one year. This includes phone calls, text messages, emails, and any form of social media or through a third party. In most cases this order is filed to prevent any further domestic violence and harassment. The victim must have either been in a romantic relationship, lived with or be related to the abuser. There are exceptions for sexual assault and stalking in which case no relationship is required. If you do not have one of these relationships or exceptions thereto then you must file a restraining order instead.

When an order of protection is filed, the Court will normally issue a temporary emergency protection order valid for 15 days, without a hearing. The order of protection is then served upon the other party and the case is set for hearing. If after a hearing on the issues, the Court finds that there is sufficient evidence to grant the order of protection then the Court puts down an order valid for 1 year. If the abuser violates either order of protection, they may be sentenced up to ten days in jail and in some rare circumstances charged with a criminal misdemeanor where the punishment increases significantly.

A restraining order is a court order that orders the abuser to cease all contact with the victim. This also includes phone calls, text messages, emails, forms of social media and third parties. A restraining order is typically issued to protect a person who is considered to be in imminent danger or irreparable damage is likely. Unlike an order of protection, you do not have to be related to or romantically involved with the abuser to file a restraining order. In certain cases this type of order can be used to prevent a parent from moving children from one county to another and place temporary holds on bank accounts. Once ordered by the Court the order is generally valid for 10 years, as opposed to 1 year for an order of protection.

It is also important to understand that unlike an order of protection there is usually not a temporary emergency order and you must wait until after the Court hearing to have any protection.

Violations of restraining orders are punishable as criminal contempt in the same manner as the order of protection, but violations cannot be charged as misdemeanors.

In either case it’s best to hire an attorney to help navigate through the process. Legal documents can often be tricky and difficult to understand. An attorney can help guide you with the necessary details needed to get the order approved.

Boundary Line Disputes

Whether you own an empty lot or a home in a residential neighborhood, chances are your land adjoins land that’s owned by another individual, business, or corporation. Because boundary lines aren’t always precise—and because both property owners may have different views of where their property lines begin and end—conflicts can occur when one property owner builds a fence, cuts down or plants trees, or alters the land in some way.

Settling boundary line disputes can be difficult unless there is clear evidence showing where each property owner’s land begins and ends, and many cases must be resolved in court. Hodge v. Cornelison and Thornburg v. Chase are two Tennessee Court of Appeals cases that established the current process for settling boundary line disputes in the state.

What Are the Common Types of Boundary Line Disputes?

Boundary line disputes are uncommon over land that’s unaltered. However, when alterations or construction begins, disputes are common when property lines aren’t clearly established. Some of the most common boundary line disputes include the following:

  • Construction of property improvements, including fences along boundary lines that are known to one property owner but not to the other
  • Land alteration that interferes with the use of a property, such as blocking a driveway or walking path
  • Adverse possession disputes that arise after the use of someone else’s property for at least seven years—including property that is adjacent to their own

In many cases, boundary line disputes can be solved before reaching litigation by speaking with a neighbor before starting construction or attempting to alter the land. However, that’s not always possible, and in some cases, property owners must solve the dispute through the court system.

How Do Courts Resolve Boundary Line Disputes?

When a boundary line dispute is brought to court, information such as written deeds and the written testimony of surveyors is initially considered to determine each property owner’s assumption of the exact boundaries of their lots. The testimony of the surveyor is by far the most important evidence. If your case goes to Court you will be required to have a survey done. Surveyors consider many factors including:

  • Natural objects and landmarks
  • Artificial monuments and markers
  • Boundary lines of adjacent landowners outside the property dispute
  • Courses and distances

Ultimately the Court will have to determine whether your surveyor or your neighbor’s is correct. The Court cannot place the boundary in the middle and must determine which surveyor is right. This means that one side wins completely.

Recent TN Supreme Court Cases Could Impact Police Justification for DUI Stops

Tennessee police officers and state troopers have a duty to keep state roads safe by stopping vehicles when they suspect drivers are under the influence of alcohol.

In 2000, State v. Binette, a TN Supreme Court Case, ruled that police officers may “initiate a brief, investigatory traffic stop” if they suspect that a driver is committing a criminal offense or is about to commit a criminal offense. However, that case also ruled that minor driving errors, like slight weaving in a lane of travel, should not constitute a valid reason for a police officer to stop a motorist. This has been a very important case in DUI defense and our firm has used this case on numerous occasions to suppress evidence and win cases.

State v. Linzey Danielle Smith and State v. William Whitlow Davis, Jr.

Two recent cases heard by the state’s Supreme Court could challenge that ruling and change the driving behaviors and errors necessary for police officers to pull over drivers and conduct sobriety tests.

  • State v. Linzey Danielle Smith
    Linzey Smith was traveling north on Interstate 65 in Williamson County at 3 a.m. on Dec. 6, 2012, when a police officer saw his vehicle’s right tires twice touch and once cross over the right fog line of the roadway. After following Smith’s vehicle for some distance, the officer initiated a stop and eventually arrested him for DUI.
  • State v. William Whitlow Davis, Jr.
    William Whitlow Davis, Jr., was traveling on Keller Bend Road in Knox County at 2:30 a.m. on Oct. 23, 2009, in his green BMW. An officer with the Knox County Sheriff’s Office received a call to be on the lookout for the vehicle, which he soon spotted and began following. The officer stated that he observed the vehicle cross the yellow double line multiple times. The officer initiated a traffic stop and arrested Davis for DUI.

Could These TN Supreme Court Cases Change the Way Police Enforce DUI Laws?

Due to both DUI convictions being upheld by the Tennessee Supreme Court and the court upholding both officers’ reasoning for stopping the drivers, police officers in the state may now have greater freedom when deciding to stop and pull over drivers that they suspect are under the influence of alcohol.

What Is an Order of Protection?

An order of protection (also referred to as an OP) is type of restraining order issued by a court that’s designed to primarily protect people from domestic violence.  To file an order of protection you must be related to, have lived with, or been in a romantic relationship with the other person.  However there are exceptions for stalking and sexual assault and no relationship is required between the parties in those instances.  If you do not meet these requirements but still feel that you need protection you may be entitled to a restraining order instead of an order of protection.  An order of protection orders one person not to have contact of any kind—including contact via emails, phone calls, text messages, social media, or in person another person for a period of 1 year.

Who needs an order of protection?

If you are being hurt, threatened or harassed by a relative or significant other, you may need an order of protection to help keep that person away from you.

What happens if someone violates an order of protection?

If someone violates an order of protection, you have the right to notify the police, who can then arrest that person. Violations constitute contempt and carry up to 10 days in jail per violation. Although rare, a violation can be charged as a crime under some circumstances—not contempt—and carry up to 11 months and 29 days in jail.

How do I request an order of protection?

It is best to hire an attorney before you file for the order of protection.  However in the event that you cannot wait as you need immediate protection, you can go to the Court Clerk or magistrate in the county where the problems occurred and file for an order of protection.

After you file for an order of protection, a judge or magistrate will review your request. If the judge finds there is probable cause, he or she will issue an ex parte order of protection that’s valid for 15 days. The ex parte order will be served on the other person, telling him or her not to have any contact, direct or indirect, with you until your hearing. Keep in mind, the ex parte order is not the final order. It’s only meant to protect you until your initial hearing.

If you’re granted an order of protection, it will be effective for one year and can be renewed for an additional year, but you must prove that the order needs to stay in place.

How do orders of protection affect child custody?

And order of protection can seriously impact child custody matters. For example, one parent will name his or her children as a protected party, which means the other parent may not be allowed to see his or her children for up to a year.

See our Orders of Protection page for more info.

How Is Child Support Determined in Tennessee?

In Tennessee, all courts and state officials must adhere to the Tennessee Child Support Guidelines when determining the amount of child support to be awarded. These guidelines include using a streamlined system and a Basic Child Support Order (BCSO) calculation worksheet, which considers a number of unique factors when determining child support payments.

How do the BCSO worksheet and calculator work?

The Tennessee Department of Human Services’ website offers automated tools that are meant to simplify the process of calculating child support orders under the State’s Child Support Guidelines. The department offers both a downloadable Child Support Worksheet (spreadsheet) as well as a web-based calculator that serves as an automated version of the worksheet.

What about expenses and credits?

The first steps of the worksheet help parents determine their adjusted gross incomes and their respective BCSO shares. From there, additional expenses—such as those for health insurance, recurring medical care, and work-related childcare—are factored into the equation. The actual expenses are divided according to each parent’s percentage of their combined income and accounted for in each parent’s share of the BSCO. A parent may also receive credit for qualified other children for whom the parent is legally responsible and for whom the parent is providing support.

How is parenting time factored into child support?

Another consideration when calculating child support is the average number of days the Alternate Resident Parent (ARP) spends with the children. (A “day” is considered to be more than 12 hours of a 24-hour period whether it’s daytime or an overnight stay). Depending on the amount of time the ARP spends with the children, he or she may be eligible for a Parenting Time Adjustment.

When can the court impute income?

Income may be imputed when there’s no evidence of a parent’s income, or a parent is voluntarily unemployed or underemployed.  For example, a parent who stays at home to take care of children because the cost of childcare is more than the parent would be able to earn may not be considered willful unemployment. However, a parent simply stays home by choice and the amount of income he or she could be earning would be more than to offset the cost of child care may be considered willfully unemployment.

How do I modify an existing BCSO?

Both parents have the right to request a review to modify BCSO, however, a significant variance is required to modify an existing order. That means there must be a minimum 15 percent difference between the amount of the proposed child support order and the amount of the existing child support order.

Circumstances for a change might include children not included on the current BCSO worksheet; children who are on the current worksheet who are no longer dependent minors; and/or either parents has a significant change in income due to job loss/promotion, an inheritance, or prize winnings.

Understanding Builder’s Warranties & Construction Defects

Buying or building a new home in East Tennessee should be an exciting time for you and your family. But after you move into your new home, you may realize that not everything is as it seems. You may notice cosmetic issues, such as poorly installed flooring, or something more serious, such as structural problems or faulty wiring.

Not only are you not getting what you paid for—a well-built home—but the value of your home has most likely been affected as well. And depending on the type of construction defect in your home, you and your family might be living in a potentially dangerous situation.

What’s a Builder’s Warranty?

Chances are, you were given a builder’s warranty that covers any construction defects and problems with your home’s structure. However, every builder’s warranty is different, which means you must read your warranty carefully to understand what’s covered, how the builder plans to remediate any issues, and the duration of your warranty. Furthermore, some home warranties may not cover common construction defects or they may have a dispute resolution clause. While some contracts may require arbitration rather than suing the builder in a court of law, the state of Tennessee requires that this type of contractual clause regarding the construction of residential property must be additionally signed or initialed by the parties involved. (TCA §29-5-302).

If you discover a problem with your home’s structure because the contractor and/or builder failed to meet Tennessee’s standard of care for contractors, then you may be able to bring action against that builder or contractor. The state of Tennessee’s statute of limitations for basic negligence regarding new construction is three years from the date of completion and provides one extra year of repose should you discover a problem with your new construction in the third year of your ownership (TCA §28-3-105).

What Constitutes a Construction Defect?

Typically, building defects are considered to be any condition that reduces the value of your home. Construction defects can be in your home’s design, materials, or the quality of workmanship—such as windows that don’t open because they were improperly installed or a leaky roof due to cheap roofing materials. Defects also can be related to land settlement and your home’s structural integrity—such as cracks in the foundation or walls.

If you believe your home has a construction defect, you will most likely need to hire an independent expert to examine your home and assess any potential defects. It’s important to have a knowledgeable expert who can easily pinpoint and assess potential residential building defects.

More information on Construction Defects

Tennessee Drivers & DUI Ignition Interlock Device Requirements

As lawyers with years of experience handling DUI cases, we’re often asked about ignition interlock devices, or car breathalyzers. Here, you’ll find the most common questions we’re asked—including how they work, the typical cost, and more.

What’s an ignition interlock device?

An ignition interlock device, or car breathalyzer, connects a vehicle’s ignition system to a breath-alcohol analyzer. To operate the device, a driver blows into a sensor that measures the alcohol in his or her breath and only allows the driver to start the vehicle if his or her breath-alcohol level is below the set point.

The device also takes photos to identify the person providing the breath sample, while recording the dates, times, test results, and photos of the person using the device. Drivers are subject to continuous monitoring while operating their vehicles. Any violations, for example failed tests or missed retests, are also recorded by the device.

What are Tennessee’s laws regarding ignition interlock devices?

As of July 2013, the state of Tennessee requires mandatory ignition interlock devices for anyone who is convicted of driving under the influence. This law also requires that devices have  cameras, so officials can tell who’s blowing into it. The law impacts drivers who have been arrested and convicted of drunk driving, and includes first-time DUI offenders with a breath test as low as .08 (House Bill 353; Senate Bill 670).

How accurate are these devices?

The National Highway Traffic Safety Administration (NHTSA) has established strict regulations for ignition interlock devices. Independent laboratories regularly test these devices to ensure they meet NHTSA’s requirements.

How is my driving information shared?

Typically, ignition interlock devices need to be serviced about every 60 days by the provider, who will download the information from your device and send it to the proper authorities. If you miss a service appointment, your device may prevent your car from starting.

How much does an ignition interlock device cost?

Drivers are responsible for all installation and service fees. The fee limitations set by the Tennessee Department of Safety state that ignition interlock device service providers must:

●     Charge installation fees of $150 or less.

●     Charge reasonable and customary fees that don’t exceed $100 per month to cover leasing, monitoring, and maintenance.

●     Charge reasonable and customary fees that don’t exceed $75 for the removal of devices.

●     Post these fee rates in a conspicuous area at the service provider’s office.

 

How long do I have to use the device on my car?

According to Tennessee law, an ignition interlock device must be in operation during the entire time period a restricted license is effectuated and must continue to be in operation six months after the license revocation period has expired. The license suspension periods are the following:

●     First offense: one year

●     Second offense: two years

●     Third offense: six years

●     Fourth or subsequent offense: eight years

 

What happens if I fail the breath test?

The ignition interlock device will prevent you from starting your car for several minutes after which you can attempt a second breath test. If you fail the second test, the device will require that you wait for a longer duration before retesting your breath-alcohol level.

Can a friend drive my car?

Not recommended.  If you allow someone else to drive your car, the device will take their picture and this could trigger a violation of your probation, resulting in jail time.  While it is technically legal for you to allow someone to drive your car, you may be accused of having that person blow into the interlock device so that you can drive drunk.

What happens if I don’t get the device installed on my car?

You may face serious consequences if you fail to install an ignition interlock that has been mandated by a court. Primarily your restricted license will not be approved and you will not be allowed to drive during the suspension.

Benefits?

There are two primary benefits to the interlock device.  First if you will most likely have no geographic restrictions on where you drive.  Before the interlock device restricted license allowed you to drive to and from work only.  Second, with an interlock device more people are eligible for a restricted license.  Before the interlock device only certain DUI offenders qualified for a restricted license.  Now virtually all DUI offenders should be able to get a restricted license.

Understanding East Tennessee Car Accidents

The number of people living in Maryville and the rest of East Tennessee continues to rise, and, coupled with lower gas prices and a steady job market, our roads will become busier than ever before. This also means as more drivers hit the road, your chances of being involved in a car accident may increase as well.

In 2014 alone, there were 2,942 traffic accidents in Blount County, which resulted in 23 fatalities. And according to a recent report from the National Safety Council (NSC), motor-vehicle deaths were up 14 percent in first six months of 2015 with nearly 19,000 people killed as a result of motor vehicle accidents between January and June.

What Causes Tennessee Auto Accidents?

The NSC also reports that lower gas prices and a steady job market play a part when it comes to an increased number of car wrecks. This is because when people have jobs, they spend more time on the road driving to work and have more disposable income for running errands or going on vacations.

Distracted driving is another key factor behind auto accidents. AT&T conducted a survey earlier this year that resulted in approximately 70 percent of respondents saying they use their smartphones while driving with 61 percent saying they’ve read, sent, or replied to texts while driving. This information is particularly disturbing considering the fact that the NSC estimates that people who text while driving are eight times more likely to cause car crashes. In fact, distraction was reported in nearly one in five crashes in which someone was injured, and it’s estimated that nine people are killed every day due to distracted driving.

Keeping Our Roads Safe

Knowing these statistics and understanding common causes for car accidents is the first step to preventing future accidents and serious injuries. A great example is the announcement of a national pilot program in an East Tennessee county that could steer how the entire country gets more people to buckle up. Tennessee Highway Patrol announced Hawkins County and Bedford County will serve as test sites for the next year as part of a pilot program with the National Highway Traffic Safety Administration (NHTSA) to develop best practices to improve safety awareness.

Another way to help keep everyone on the road safe is through continued learning and safety training, such as the Maryville Police Department’s Crash Avoidance Training. This program is designed for teen drivers that focuses on reducing car crashes and provides adolescents with additional driver’s training and education. This is especially important, as most teen crashes are due to inexperience and inadequate skills during emergency situations, and because automobile accidents are the leading cause of deaths and injuries to teens in Tennessee.

Common Tennessee Divorce Myths

We’ve helped hundreds of people in East Tennessee through their divorces, which means we also understand the many preconceived notions and misconceptions people have when it comes to the divorce process. Below is a list of some of the most common divorce myths we hear and the truth behind them.

MYTH #1: You are allowed to deny visitation if the other parent fails to pay child support.
Child support and visitation rights are not connected to one another. If the noncustodial parent fails to pay child support, the custodial parent must go to court to resolve the matter.

If you have a parenting plan, and the noncustodial parent is refusing to follow it, we can help you enforce it. In most cases, the best action is to file a petition for contempt. In that petition, you will ask the court to force the other parent to play by the rules. If the other parent does not do so, then he or she can be punished, sometimes even being subject to jail time.

MYTH #2: Children can choose which parent they want to live with.
In Tennessee, a child who is 12 or older may be able to tell a judge about his or her preference for primary residential parent, either in the courtroom or in the judge’s chambers. However, a judge will only take this information into consideration when determining custody and what’s in the best interests of a child. The amount of influence a child has revolves around several factors, including age, maturity level, and his or her reasons for preferring a certain parent.

During the divorce process, a judge will use common sense in evaluating parenting practices. If a judge believes that a parent is using unfair or vengeful custody tactics, the consequences can be devastating. Most judges believe that violating these type of tactics demonstrate that a parent is either unwilling or unable to exercise good judgment.

MYTH #3: Engagement rings and wedding bands are considered shared property.
In most divorce cases, an engagement ring belongs to the spouse who was the recipient of the engagement ring. Wedding bands are considered to be gifts from one spouse to another, and usually remain with the respective spouse.