As a Nashville criminal attorney can explain Tennessee aggressively prosecutes drug sale cases. The severity of the charge and penalty associated with it depends on the type of substance involved as well as the quantity.

The Significance of the Type and Amount of the Drug Found

Delivering a controlled substance with the intent to sell it is a crime in the state of Tennessee. The larger quantity of a drug and the higher it appears on the schedule of controlled substances, the more severe the charge and potential penalty a defendant may face. As your criminal lawyer in Nashville can explain, Schedule I substances are those that are highly addictive with no medical value. Heroine is a classic example. A well known Schedule II drug is cocaine. A charge of intent to sell a Schedule II drug can be considered a Class C felony with a potential sentence of 3 or more years. However, if the quantity of the Class C drug exceeds half a gram, this can bump the charge up to a Class B felony with even greater potential jail time for a conviction. Let your attorney carefully review the charges and evidence against you give you a sense of what you may face and how to build a defense strategy.

Factors an Attorney Considers in Helping to Build a Defense Strategy

The earlier you contact a criminal lawyer in Nashville, the more options you may have in terms of a defense strategy. Your attorney knows the constitutional rights a criminal defendant is afforded and what requirements law enforcement must follow in questioning a suspect and collecting other evidence. Before you say or do something that could later hurt your case, make sure you discuss the matter with your attorney. While no lawyer can promise a dismissal or attractive plea bargain, it’s critical that you seek qualified counsel so that you know your options.

Put your case in the hands of a skilled Nashville criminal attorney who can help you understand the criminal justice system and build an aggressive defense. To schedule an appointment with Horst Law, call us at .

How Medical Providers can protect themselves from unjust Medicare and Medicaid Fraud prosecution

For every presidential administration there is a crime that is selected for which the Department of Justice is tasked with stepping up prosecutions and for getting tough on crime. For President Bush’s Justice Department that crime was child pornography. For President Obama’s Justice Department, in an attempt to vilify the “greedy” medical doctor in order to justify the President’s socialization of the Medical System in the United States thru Obama Care, that crime is Medicare and Medicaid fraud. From child pornographers to medical doctors. One has to question the changing priorities of our Justice Department.

It would be a mistake for any medical Doctor to be unconcerned about being selected for prosecution because he or she has not intentionally committed fraud because one of the favorite tools of state and federal prosecutors in bringing claims against doctors is the allegation of up coding. Of course up coding is the act of entering a medical billing code when billing the government for a procedure and using a billing code that pays a higher rate than the code the doctor “should have” billed. Simple enough of a concept – right? Should be pretty easy to avoid – right? Wrong.

If you are a doctor accepting insurance payments from almost any insurance plan including government Medicare or Medicaid – which is just about every medical provider in the country you know how complex medical billing has become. The complexity of the medical code and which code covers what can easily cause the medical provider to enter the incorrect code. Once that provider settles on a code to use and if the code is incorrect and he uses that code often enough he can become a target of the government, especially if he has a disgruntled employee who decides to try to make some money by making a whistle blower claim.  Humana Whistle Blower Claim.

It is very easy to make honest mistakes in using the “proper approved” billing codes, and although honest mistakes are made the Federal Government does not have a forgiving nature.

The government will not accept your explanation that it was a simple mistake. They will accuse you of an intentional ongoing scheme to defraud the government. So what can you do to protect yourself?

Below I have listed a few steps that every medical doctor and provider should take in order to protect themselves from a government criminal or civil prosecution for Nashville’s Medicare or Medicaid fraud. These are the minimum steps you should be taking.

1. Training. Make sure whoever does your billing is trained and receives continuing training on proper coding. Hire an outside experienced and reputable company who are experts in coding if possible.
2. Document Communications. Keep any communications between your office and Medicare and Medicaid when you contact them with questions about coding so that when they later claim that what you did was wrong you have proof that they told you to do it that way. If the contact was a telephone call send a confirmation email or letter of your understanding of the conversation.
3. Keep all contracts and renewal audits. When Medicaid and Medicare audit your files to renew your contract and they send you your audit score keep those records. Do not count on the government to keep it. I have actually seen case(s) where the government after auditing files and renewing contracts and after giving the medical doctor high scores for his billing practices later brings a claim involving the very same time period. The fact that you passed a prior audit and were told you were in compliance is powerful evidence you were acting in good faith and not committing fraud.
4. Try to avoid chart cloning. When you cut and paste prior chart entries without any changes to the chart note the government will claim this is evidence that you are not actually treating the patient. If there is any change in diagnosis, treatment, or symptoms make sure the change is noted. If not make a note that there has been no change and if possible even document things that are inconsequential such as the nature of any small talk specific to that patient such as family, pets, etc, to avoid allegations that you are not actually seeing, treating, or evaluating the patient.
5. Hire the right Medicare & Medicaid Fraud lawyer. If you are notified that you are under investigation or that a criminal or civil prosecution is being brought against you hire an experienced criminal defense lawyer.  As highly trained and educated professionals doctors often network and socialize in certain professional and economic circles and make the mistake of deciding what lawyer to employ to defend them based on what law school the lawyer went to or what law firm he works for.  In other words they tend to consider the pedigree of the lawyer without ever considering what skills and experience the lawyer actually has. This is a huge mistake.

If you are facing a Medicare or Medicaid fraud investigation or prosecution you need a great trial lawyer. Great trial lawyers are rarely born and they do not exist simply based upon the fact that they went to a particular school or work at a particular law firm. Great trial lawyers must know people and must be able to relate to people because they are trying to persuade a jury. Great trial lawyers must be able to think strategically and tactically employing the facts of the case, the law, the rules of evidence, and the rules of procedure. They must have an understanding of the personality of the opposing attorney and of the judge. The great trial lawyer must understand all of this and know how to develop a battle plan built around all of these factors. Then when something goes wrong or the unexpected happens he must have the courage and confidence not to panic and the mental agility to react quickly and to change tactics accordingly.

The only lawyers that I know who possess all of these skills are the lawyers who have had their skills forged in countless battles and legal wars and actual jury trials. The only lawyers who I know who have obtained sufficient experience to obtain these skills are the lawyers who as young lawyers have tried hundreds of cases as a criminal prosecutor or criminal public defender. A prosecutor or public defender will try more cases in one year than the pedigreed lawyer sitting in his penthouse office will try in a lifetime. Find the lawyer who has had this experience and who has experience with Medicare and Medicaid fraud cases.

The law is the easy part. An average trial lawyer will focus on the law and will try to explain to the jury that you did not violate the law. A good or great trial lawyer knows that winning any trial often depends more upon giving the jury a reason to want to find in his client’s behalf than on the technicalities of the law. He will know how to go beyond the mere legalities of the case and will know how to present your entire story to the jury. He will communicate to the jury how you as physician or medical provider are someone who cares about your patients but you are fighting an uncaring federal and state bureaucracy called Medicare and Medicaid that is actually inhibiting proper patient care, and tasking you with impossible and unreasonable demands.

Finding the right lawyer can literally mean the difference between ending up in jail and losing your practice versus staying out of jail and saving your career.

Brent Horst, Attorney at Law

Nashville Tennessee. Licensed in Tennessee and Florida

Child molestation charges are serious. If you believe you are being investigated or have already been charged, contact a skilled Nashville defense attorney as soon as possible to maximize your defense options.

Elements of a Child Molestation Charge
As a Nashville defense attorney can explain a child molestation charge is complex. The events leading up to it may actually support a number of separate charges in addition to the sexual conduct charge. It may include child endangerment, abuse and neglect, criminal assault and domestic violence depending on the circumstances. Regardless of the amount and nature of the charges, your attorney can analyze the case looking for a few common factors that may form a defense strategy.

Key Factors in Building a Defense
As with any criminal charge, when you speak to an attorney from a knowledgeable Nashville defense law firm defense, he may focus on the type of evidence against you and how it was collected. Again, an accusation of child molestation may actually include several separate but related charges. Your attorney will explain how the prosecution bears the burden of proving each and every legal element of each and every charge beyond a reasonable doubt. If even one element of a charge is not supported by evidence, the prosecution will have failed in its burden of proof and the charge may be dismissed.

Your attorney will explain the criminal defendant’s rights when it comes to evidence gathering. The Constitution protects criminal suspects from unreasonable searches and seizures and affords them the right of due process of law. From a practical standpoint, your attorney will look at whether law enforcement executed a lawful search to obtain evidence, whether a warrant was required or exceeded and how any statements you might have made were obtained. If the defendant’s rights were violated, this could form the basis for a successful motion to suppress any evidence obtained pursuant to the violation.

At the offices Horst Law you can trust your case to an experienced Nashville defense law firm. To schedule an initial consultation, call .

Over the last few years I have become increasingly concerned about the possibility that some individuals who have been convicted of crimes that are not sex offenses will nonetheless eventually be required to register as sex offenders.

The Tennessee Sex Offense registry statute already lists several offenses that depending upon the facts of the case have nothing to do with sex, including such as crimes as kidnapping, or indecent exposure.

Year after year the legislature expands the sex offense registry to include more and more crimes and adds more and more restrictions to those required to register.  Despite the fact that there is no evidence that these statutes actually protect anyone adding more offenses and restrictions to this law is an easy way for a politician to look tough on crime.  Regardless of how ridiculous any proposed addition to the law may be no other politician will stand up against the continued expansion of the sex offender registry because he will be crucified in the next election with commercials about how he protects sex offenders.

The Courts have also bent over backwards to uphold these laws.

My main concern is situations where an individual has been charged with a sex offense, for example aggravated sexual battery, but the evidence is weak and a conviction is not likely so the prosecutor agrees to a plea bargain and to let the defendant plead guilty or even no contest to a non-sex offense crime like aggravated assault and receive a probationary sentence.  This is very difficult even for the innocent defendant to turn down.  Does he let 12 strangers on a jury decide his fate and if convicted he spends 12 years in prison and is subjected to the sex offender registry and all that goes with it?  Or does he take the offer and plead to the non-sex offense aggravated assault and get guaranteed probation?  Nine times out of ten he will take the deal and I can’t blame him.

I have been concerned that sooner or later the legislature will pass a law that requires that anyone who had an original charge involving a sex offense will be required to register as a sex offender even if they plead as part of a plea deal to a different offense.  At first I thought this may happen but I had my doubts.  Now I will be surprised if it does not happen.  I think it is only a matter of time.  One reason I see this coming almost as a certainty is that I have recently had a prior client come to me who faced the situation discussed above.  He was charged with Aggravated Sexual Battery and was facing 12 years in prison if convicted.  I think we could have won the case but there are never any guarantees.   A week before trial the prosecutor offered to let him plead guilty to Aggravated Assault and receive six years of probation.  He took the deal.

Four years into his probation despite not pleading guilty to any type of sex offense and despite not being found guilty of any sex offense the probation department is attempting to force him into sex offender counseling and during counseling they are attempting to force him to admit to the original charge of aggravated sexual battery.  I have learned this is now their policy.  I have petitioned the Court to order that the Probation Department not be able to require my client to attend sex offender counseling – as I write this article the motion is pending and I do not yet know what the judge will do.

However, with the State adding more and more offenses even non-sex offenses to sex offender registration, and with the Department of Corrections now attempting to force individuals into sex offender counseling who have not been convicted of a sex offense, I think it is only a matter of time until some politician brings a bill to add to the sex offender registry all persons who had an original charge that was a sex offense but that was changed to a different offense during plea negotiations.

I believe requiring these individuals who have already entered guilty pleas to a non-sex offense to register would clearly violate due process.  However, based upon how both the State and Federal Courts ruled regarding retroactive application and due process challenges to the original sex offender registry I have no confidence in the courts to strike down any such new law.

I am therefore advising any clients who may be offered a deal to plead to a non-sex offense crime in a plea bargain to require the State to put on the record at the plea that the plea is conditioned upon the fact that the defendant will never be required to register as a sex offender even if the law changes. If the State will not agree to such an understanding but the client wants to take the deal anyway then the client needs to be aware that the law could change someday and he could be required someday to register.

Brent Horst, Attorney at Law

Nashville, Tennessee.  Also licensed in Florida.

I grew up with my father gone five out of seven days of the week supporting our family as a long distance truck driver.  I will never forget how exciting it was for me as a small boy going with him on occasion and sleeping in the “big rig” sleeper and stopping at truck stops which to me as a boy were a world in themselves. You could eat, shower, play games in the game room, or buy just about anything you wanted.  Even today I love stopping at truck stops.

As the son of a truck driver and now as a criminal defense lawyer I am particularly aware of the special legal issues truckers face.  One of the issues that long distance overnight truck driver faces is what to do – where do they go – if he has had any alcohol.  Can he just park the Truck and sleep it off in the Cab?

Any truck driver who decides to sleep off a night of drinking in the sleeper cab is putting his license at risk.  Tennessee DUI laws, just like most states, prohibit not only driving while impaired or over the legal Blood Alcohol Limit, but they also prohibit being in actual physical control  (APC) of a vehicle while being impaired or over the legal BAC limit. This means that in most states sitting or sleeping in a parked car or truck while impaired or over the legal BAC limit, with the keys in the vehicle ignition or even within reach are sufficient to violate the actual physical control law.

If you do find yourself in that situation and are arrested and charged with DUI or APC, there may be unique defenses.  For example I have a case now where the Client parked his truck in the truck stop truck lot, got a ride and hit the town, and got a ride back to the truck. The lot attendant called the police when he saw the driver was allegedly intoxicated. Even though he was in a parked truck and the truck was not running my client was arrested and charged with D.U.I. and Actual Physical Control of a vehicle while impaired or over the legal limit.

The D.U.I. and A.P.C. law in Tennessee as in most states prohibits driving or actual physical control on a public street or any parking lot frequented by the general public.  I intend to present as a defense that the truck stop parking lot which is dedicated to semi –trailer trucks only and to the drivers of those trucks, is not a parking lot frequented by the general public.  It is a dedicated area for truckers only, it is their home away from home as they spend their downtime in their truck.  Therefore my client did not violate the law if he was impaired or over the legal blood alcohol limit because he was not in a parking lot frequented by the public at large.  After all, even though I still stop at truck stops when I am in my car, I never take my car to the truck parking area, this area is for the trucker, it is his home away from home, it is not for me or the general public as the casual traveler.

I believe this is a valid defense but ultimately it will be up to the jury to decide and I would not advise any truck driver to count on this defense as a sure fire winner.  The best policy is to remember that even if you are not driving you put your license and your job at risk if you get into your truck after drinking.  Therefore, avoid that situation and get a cab and a hotel.

To all Truck Drivers God Bless, and be safe out there.

Brent Horst, Attorney at Law

Criminal Lawyer in Nashville.  Licensed in Tennessee and Florida

Cyber sex crimes are being investigated and aggressively prosecuted at an increasing rate. The consequences for a conviction can follow a defendant for the rest of their lives. If you or a loved one face imminent charges, contact an experienced Nashville internet sex crimes attorney as soon as possible.

Cybercrimes Involving Sex

Sex-related cybercrimes can come in many forms. Most often, suspects can face charges for distributing child pornography or luring a minor into a sexual situation by use of the internet. Social media is often used in both circumstances. As a Nashville internet sex crimes attorney can explain, in the case of child pornography, a suspect can be charged for even sending child pornography to another person. The charge can also result from one minor sending sexually explicit pictures of themselves to another minor. Depending on the severity of the charge, an individual convicted of an internet sex crime may face felony penalties and be required to register as a sex offender for the rest of his or her life.

Building a Defense Strategy

It’s important to contact a Nashville internet sex crimes attorney as soon as you can. Your attorney can carefully circumspect the process by which law enforcement collected evidence against you. For certain items, the police are required to obtain a proper warrant before being able to conduct a lawful search. This can apply to phone and computer hard drive data. Your lawyer will be looking to ensure that law enforcement did not exceed the scope of their warrant. Additionally, your attorney can review the specific charges against you probing for weaknesses in the prosecution’s ability to prove any legal requirements for a conviction. If appropriate, your attorney can discuss your options for seeking to have certain evidence suppressed. Your attorney can also communicate with the prosecuting attorney on your behalf and explore the possibility of a plea bargain or dismissal.

To speak to a skilled Nashville criminal attorney about charges you face, contact the offices of Horst Law. To make an appointment for a consultation, call .

Drug possession can be a serious charge depending on the type and quantity of the drug involved. Don’t leave your defense to chance, contact an experienced Nashville criminal defense attorney as soon as you can so you understand the law and your options for a defense.

Simple drug possession charges carry less severe penalties then if a defendant is suspected of intent to sell that drug. As an attorney at your Nashville criminal defense law firm can explain, possession of drugs with no medicinal value can open the door to more severe penalties. Drugs with at least some medicinal value will carry a lesser penalty for a possession conviction. Let your attorney review the charges against you and explain the classification of the specific drug you were allegedly caught with. The sooner you talk to a lawyer, the stronger your defense may be as your attorney can take a close look at the evidence against you and how it was collected. Your lawyer can’t guarantee a successful defense, but you can make informed decisions about how to proceed.

What an Attorney Looks for When Building a Defense

Your attorney will carefully scrutinize the evidence against you and how it was collected. If the police lacked probable cause to arrest you, it’s possible that anything you told them or any evidence they collected incident to that arrest could be thrown out. Likewise, if the police did not have a warrant when one was required or if they exceeded the scope of an existing warrant, then you could have the basis for a strong defense. The attorneys at your Nashville criminal defense law firm will also look at the evidence itself to determine whether the prosecution can meet their burden of proof. If not, you could have leverage for a defense.The sooner you speak to a skilled Nashville criminal defense attorney about any charges you face, the greater your options for dealing with them will be.

To schedule an appointment for an initial consultation with the offices of Horst Law, call .

Prescription drug fraud is a serious charge with serious consequences. If you or a loved one face charges, contact a Nashville criminal defense attorney as soon as possible to explore your options.

Conduct that Can Lead to a Prescription Drug Fraud Charge

Prescription drug fraud charges can result if a person obtains a controlled substance or medication from a pharmacy through theft or fraud. In some cases, a suspect may try to alter the quantity or strength of a written prescription, pose as someone else or engage in theft of a medication or controlled substance. As a Nashville criminal defense law firm can explain, even the attempt to commit prescription drug fraud is a crime. Therefore, it’s not necessary for a suspect to successfully steal the medication, as long as the intent to commit fraud can be proven.Prescription drug fraud can lead to felony charges with serious potential consequences if convicted including jail time and significant fines.

The Importance of Seeking Legal Help Early

If you or a loved one has reason to believe a prescription drug charge is imminent, or if you’ve already been charged, contact a Nashville criminal defense attorney right away. The sooner you seek qualified legal counsel, the more options you may have for dealing with the charges against you. Your attorney can review how the evidence was collected. If law enforcement violated any of your Constitutional rights during the evidence-gathering phase, then some important defense strategies could become available. Your attorney can discuss what’s required for search and arrest warrants and review whether the police followed the appropriate procedures.

With regard to the charges themselves, the prosecution must prove every element of the crime beyond a reasonable doubt. Your attorney can probe for strengths and weaknesses with the prosecution’s case and help you decide how best to proceed.For more information about drug laws in Tennessee and for experienced help if you face charges, contact the Nashville criminal defense law firm of Brent Horst Attorney At Law. To make an appointment for a consultation call (615) 403-2971 cell / (615) 259-9867 office.

Today I received my re-certification as a Criminal Law Trial Specialist by the National Board of Trial Advocacy.

I was first Board Certified in 1999. To become Board Certified in Criminal Law an Attorney must submit proof of participation in a required number of trials or contested hearings, pass a written test, and submit Judges and other Attorneys who have worked with the Attorney as a reference.

To remain Board Certified the Attorney must re-apply every five years. Making sure the attorney you hire is Board Certified is one of the best ways to make sure that your lawyer is well qualified.  Whether you need a criminal lawyer, divorce lawyer, or other type of lawyer make sure they are Board Certified.

~Brent Horst

Ask most people and they would tell you that a person cannot be forced to confess to a crime because our constitutional rights prohibit the police from forcing criminal defendants to confess.  It seems like a no-brainer.  Unbelievably in Tennessee current law allows the State to force some individuals accused of sex crimes such as aggravated sexual battery, or rape, or sexual battery, or statutory rape to confess to that crime and if they do not confess they can be prosecuted for refusing to confess and sent to jail simply because they did not confess.  I know, it sounds like something out of the Salem witch trials but it is happening now in 2014 in the state of Tennessee.

Tennessee’s Department of Correction forces individuals convicted of a sex crime such as sexual battery or rape as part of their probation or parole or life time supervision to “admit” that they committed the crime even if the accused took their case to trial and denied the crime but were convicted anyway.  If the person does not “confess” they are then charged with a second crime of failing to follow sex offender treatment requirements which is a separate and new crime.

I recently represented such an individual.  Many years ago before I represented him he was charged with aggravated sexual battery.  He maintained his innocence thru trial but the jury convict him anyway.  When he got out of prison he was ordered by the judge as part of Tennessee’s mandatory sex offender treatment law into counseling.  When he refused to confess to the crime he was charged with violating his treatment program, prosecuted, and put back in jail – simply because he refused to confess.

I represented this man at his trial for violating sex offender treatment and I challenged this law as unconstitutional.  I was shocked when the trial court and the Tennessee Court of Criminal Appeals allowed this law to stand.  I did not think it was possible that any Court in the United States of America, or in the State of Tennessee would actually rule that it was ok to coerce confessions and if the person refused to confess to throw that person in jail.  What ever happened to due process?

At the law office of Brent Horst we have teamed up with renowned Constitutional and Tennessee Appellate Lawyer David Raybin to appeal this case to the Tennessee Supreme Court.  The brief will be filed with the Tennessee Supreme Court today. It is an Honor for Brent Horst to work with Mr. Raybin.