A Bad Proposal In Tennessee's DUI Law

Driving under the influence (DUI) laws are a political football in Tennessee. Every session some state legislator tries to be the driving force to enact new DUI laws. Bills are drafted and proposed without any rhyme or reason. The bad DUI bill of this  session prohibits those of a DUI felony conviction from obtaining a restricted driver's license in Tennessee.

A person can be convicted of a felony DUI if it is their fourth DUI conviction. Several years ago, the Tennessee State Legislature passed a bill allowing those with multiple DUI convictions including those convicted of a felony DUI to be able to get a restricted driver's  license. The comment in the bill's passage state it was for the public's safety. It had a major catch. One had to install an ignition interlock device on one's vehicle for the entire length of the suspension.

A DUI felony conviction carries an eight year loss of driver's license. So a person had to install the ignition interlock for eight years. All lawmakers recognized that folks maybe driving without a license. To protect the public they put forth the requirement of the ignition interlock device had to be installed in order to get the license. From my conversations with prosecutors, the ignition interlock device reduces the recidivism rate of repeat offenders. one gets into the habit of monitoring their alcohol use. The car is unable to start with a blood alcohol concentration of .02 or higher with periodic testing while the vehicle in motion. 

Passage of this bill is a threat to public safety and an increase in spending. I predict folks will be driving without a license or ignition interlock devices.. who is at risk ? Secondly, more trials will take place. Why not take a chance at trial if you have nothing to lose. Tennessee Legislators need to take a hard look at this bill.

DUI, Ignition Interlock, and The State Legislature

An ignition interlock is required to obtain a restricted driver's license if you have been convicted of a DUI charge in Tennessee. In the initial implementation of the ignition interlock device, I was in favor of it's use. It allowed those with multiple DUI convictions to get a restricted license rather than drive under the radar. It also removed the geographical and time restrictions of driving. It also encouraged those who submit to the test to be more aware of their drinking habits.

 

As of July 2016, the use of the ignition interlock has amped up. In part due to the work of the industry and the Tennessee State Legislature.

Three big changes happened. First. you must have an ignition interlock installed even if you elect not to get a restricted driver's license. Some folks who live in downtown Nashville may use alternative transportation during the one year suspension. Now, they will have to install an ignition interlock device(IID) when then get their regular license. Secondly, one has to have 120 days of negative tests before the IID device can be removed from their car. One positive test starts the clock back to day one. It is possible you could have the device on your car. I think the IID folks want to keep a IID on your car for as long as possible at $90.00 per month. Finally, one was allowed to drive a company owned vehicle without an interlock device if the company knew of his conviction. Now folks lose their jobs because they can't drive the parts truck or the company van.

Who monitors the IID ? The provider who is making $90.00 a month. How do you double check or contest their work ? Who knows ? You get bogged down by the bureaucracy of the Tennessee Department of Safety. Take a look at Tennessee Code annotated 55-10-425.Here is a link to the new statute. I wonder who drafted it.

Maybe it is too much of a good thing.

Tennessee Expungement Alert

A lawyer will always learn something when they read the law. A great friend asked me a question about expunging an old criminal charge. It forced me into brushing up on  the Tennessee state code. Years ago, Tennessee had a DWI law on the books. It was a lessor charge of Tennessee's DUI law. it was titled Adult Driving While Impaired. It was under code section T.C.A. 55-10-418. It was repealed in 2003 The punishment was a $500.00 fine.

The question was whether the DWI conviction be expunged. Remember DWI not DUI. A DUI charge under Tennessee law can never be expunged. Ordinarily, one cannot expunge a conviction. Several years ago the Legislature passed T.C.A. 40-32-101(g). In the law, it specifically excludes certain convictions from being expunged. The old DWI law was one of those not excluded. Probably because the law was repealed at the time. If you want to clear a old DWI charge, here is a link to the procedure.. If you think you qualify, contact us.

The Tennessee Legislature Costs the State 60 Million

It never ceases to amaze me the laws that the Tennessee Legislature passes. I go to some committee meetings during the session. I have seen what goes on first hand. Most of the lawmakers are level headed. A law that was passed last session may now cost the citizens of Tennessee $60 million dollars in federal road funding. 60 million that won't be used for fixing our roads or providing jobs.

Here is what happened. In their never ending battle to tinker with the criminal laws of Tennessee, DWI for drivers under 21 was eliminated. Anyone 18 or over can now be charged with DUI. The big difference in the under 21 DWI set the blood alcohol limit at .02. For a DUI, the blood alcohol limit is .08. The federal law sets the limit for those under 21 at.02 blood alcohol concentration. If Tennessee does not comply with the federal law on blood alcohol limits, Tennessee forfeits federal road money. We already lose money because the Legislature will not outlaw the open container laws.

Maybe the Tennessee state Legislature needs to spend some time fact checking before they change the DUI laws.

In an effort to fix the problem, Governor Halsam has called for a special session of the legislature to fix the problem. Who is going to pick up the tab for the special session ? The taxpayers.

DUI Bond Conditions and EtG

The courts in Nashville,Tennessee will require random drug testing if you are charged with a multiple DUI charge. It is a condition of your bail bond. Positive drug test could mean that your bail would be revoked pending the outcome of your case. The test also looks for Ethyl Glucuronide (EtG). I added the fancy symbol above.

EtG is a biomarker for ethyl glucuronide. It is basically a  method to determine alcohol consumption.Here is what the Substance and Mental Health Services Administration has to say about EtG testing;

The EtG test is simply not reliable by itself to determine alcohol consumption. According to the SAMHSA advisory:

"Currently, the use of an EtG test in determining abstinence lacks sufficient proven specificity for use as primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking.

"Legal or disciplinary action based solely on a positive EtG ... is inappropriate and scientifically unsupportable at this time.

 

These tests should currently be considered as potential valuable clinical tools, but their use in forensic settings is premature."

SAMHSA recommends that biomarker tests be used as a tool to launch a more extensive investigation into possible alcohol use, but not as a stand-alone confirmation

Here is the takeaway. Get a lawyer that can present a scientific defense to your case. I see over and over again motions to revoke bond based on a failed drug test. It is well documented about false positives and EtG testing.

I Want You To Step Outside of the Car and Do Some Tests

Last month, I posted an article on "Have you been drinking tonight."The next question that DUI police officers ask is I want you to step outside of the car and do some tests. Should a citizen under suspicion of drinking and driving agree to do the field sobriety tests ? Your answer should be a polite no thank you. Here are a few reasons why you should say no thank you.

  • The field sobriety tests are one of the main building blocks of a DUI prosecution.
  • The field sobriety tests are patently unfair. They are used on all types of folks from 18 to 80. Weight and physical problems are not factored into the equation.
  • The original data from the studies which lead to the creation of the field sobriety tests have never been peer reviewed.
  • Under Tennessee law, the field sobriety tests are not scientific tests.
  • Under Tennessee law, a defense attorney cannot cross examine an officer using their training materials.
  • it is simply based on the police officer's opinion.
  • The scoring is unfair. On the walk and turn test there are eight clues. if you have only two clues present, you fail.
  • The horizontal gaze and nystagmus  is inadmissible under current Tennessee law.
  • The Tennessee Supreme Court has ruled that even if you pass the field sobriety tests you can still be arrested for driving under the influence.

These are just the highlights of why you should saw no thank you when requested to do some field sobriety tests. as I was writing the post, I was reminded by a saying my father used to say. " I might cut my own throat but I am not going to supply the razor." Don't supply the razor

 

Have You Had Anything to Drink Tonight ?

Almost  all Tennessee DUI investigations start out with that simple question once you have been stopped. Most folks don't know their rights. So they admit to a couple of drinks or wine with dinner. Here are some ideas on how to respond to a police officers questions about drinking.

  • Do not lie to the police officer. For example, do not deny drinking. A police officer might get a search warrant for your blood alcohol level. A positive blood alcohol test makes you look like a liar.
  • Do not admit to having a couple of beers or wine. The admission creates probable cause for a DUI investigation. A recent case before the Tennessee Court of Criminal Appeals held that an admission of drinking creates probable cause for an arrest even though the accused passed all the field sobriety tests.

You are damned if you admit to drinking and damned if you deny drinking. What should you do ?

Exercise your constitutional rights. Here is an idea of what to say.

Officer Your question makes me think I am under an investigation for driving under the influence of alcohol. I will not make any statements and assert my constitutional right to remain silent. I will not answer any questions other than my name and address.

You cannot talk your way out of a DUI arrest. You cant perform field sobriety tests and go home. You are going to be arrested one way or another. Protect yourself and remain silent

There was a saying during World War II. Loose lips sink ships. Don't sink your DUI case before it leaves the dock.

 

One Critical Aspect on Handling Repeat DUI Offenses

It saddens me the way some DUI cases are handled in the State of Tennessee. Some lawyers think these are easy cases. They take a client's money. No investigation is done. Then a plea of guilty as charged. A recent case illustrated this point.

The charge was a felony DUI. In Tennessee, it requires three prior DUI convictions. If convicted, a minimum jail sentence of 150 days and a loss of license for at least eight years. This individual's first lawyer wanted them to plea guilty as charged to the felony DUI. I took over the case. I reviewed the prior criminal record. One of the prior convictions was invalid and could not be used to enhance the punishment to a felony DUI. Just reviewing the record saved someone from a felony. Then it got worst.

On another charge, a plea was entered to two DUI seconds with a jail sentence. The prior charge was invalid in the like in the felony case. A person did a jail sentence without an investigation of the prior record. I wonder how many lawyers in Tennessee do not review the prior criminal convictions.

If your charged with a second, third, or felony DUI in Tennessee, you must get a copy of the prior convictions. The same holds true if you are an attorney handling these cases. Over the years of defending DUI cases, I have seen judgments not signed by the judge. One clerk's office in Alabama destroys the convictions after five years. On occasion, a waiver of counsel has not been signed. All of which could make a prior conviction invalid. It is critical to review the record before pleading guilty to any enhanced DUI.  

 

Supreme Court to Decide Breath Test Refusals

The U.S. Supreme Court recently agreed to hear three cases which are consolidated for a single argument. The critical issue is whether a state can make it a crime for citizens suspected of driving under the influence (DUI) to refuse a breath or blood tests. The cases are from Minnesota and North Dakota The North Dakota law provides that "refusal to take the test directed by the law enforcement officer is punishable in the same manner as driving under the influence."

it is a bedrock principle of our constitutional rights that a citizen cannot be compelled to give evidence against oneself. However, police can obtain search warrants to force an citizen to submit to a blood alcohol test. In these cases , the issue is can you be charged with a crime for asserting your constitutional rights.

In Tennessee it is a crime under T.C.A. 55-10-407 to refuse a request for a blood or alcohol test if you are driving on a revoked driver's license due to a prior DUI conviction. a violation of this statute is a Class A misdemeanor and carries a jail sentence of a least 5 days if convicted.

If the U..S. Supreme Court allows these laws to stand, it creates a entirely new set of problems.

  • I refuse to consent to a search of my car.
  • I refuse to consent to a  search my house.

Will these be criminal offenses in the future.

 

Does Nashville's Crime Lab Create a Conflict of Interest ?

 Metro Nashville Police Department lobbied for it's own crime lab. Supported by former Mayor Karl Dean, it was funded. Now blood alcohol reports are being generated by the lab. The key question is whether having a forensic crime lab run by the same folks who are prosecuting the crime create an inherent conflict of interest. Secondly, does having the same lab as the police department create a bias in reporting ?

In 2009 , the National Academy of Sciences released a study on Strengthening Forensic Science in the United states. The study dealt with the entire field of forensic science. One area of study was the independence of forensic science laboratories. One finding was that a system where the crime lab reported to the head of the law enforcement arm leads  to significant concerns related to the independence of the laboratory.

 

One of the recommendations to maximize independence from law enforcement was to remove all public forensic laboratories from the administrative control of law enforcement agencies or prosecutors' offices.

Before the opening of the Metro Nashville crime lab, most forensic science duties were performed by the Tennessee Bureau of Investigation. At least there was a level of independence in that there agents were not actively prosecuting the cases. All current blood alcohol tests in DUI cases are being performed by the Metro crime lab. Nashville was aware of the forensic science report yet put the forensic crime lab in operation. The big question is whether the lab is independent or biased in its reports.

The Rise of the Blood Alcohol Search Warrant in Tennessee

The Tennessee State Legislature pasted a DUI law several years ago that authorized a mandatory blood draw in multiple DUI prosecutions, accidents involving serious bodily injuries, and if a minor child was a passenger in a car driven by a DUI driver. There  were constitutional issues raised on a seizure of a person's blood without a search warrant. The U.S. Supreme Court dealt with those issues in McNeely v. Missouri.

In McNeeley, the court held that a search warrant may be required to obtain a defendant's blood sample. Exigent circumstances did not always outweigh the search warrant requirement. Soon after McNeeley was the law of the land. Tennessee law enforcement began obtaining search warrants in those cases. Law enforcement soon realized it was not that difficult to get a search warrant on multiple DUI offenders. Regular patrol officers soon trained to get a blood alcohol search warrant in all DUI cases. District attorneys began drafting template search warrants for local police. The Tennessee highway Patrol even had a template. All the arresting officer had to do is fill in the blanks of the template and present it to the magistrate.

Several counties across Middle Tennessee apply for a  a blood alcohol search warrant in all DUI investigations. Williamson County, Tennessee is the primary county where search warrants are used all the time.

The result for those charged with a DUI and those defending DUI cases is a more vigorous defense. Was the magistrate truly neutral and detached ? Was there a Franks violation in that the police officer make some reckless statements on the affidavit for the search warrant.

it reminds me of the old adage. Be careful what you ask for, you just might get it.  

 

Two DUI Cases Pending at The Tennessee Supreme Court

Currently, there are three driving under the influence (DUI) cases pending at the Tennessee Supreme Court. Two cases have similar issues and one may have the Court adopt the good faith exception. Here is my take on the two traffic stop cases.

In State v. Linzey Smith and State v. William Davis Jr. both address traffic stops. In each case, the probable cause was failure to maintain lane under T.C.A. 55-8-123(1). One bright spot was the ruling in State v. Binnette, which lead to a flood of motions to suppress based upon the ruling that it was impossible to drive a car in a perfect straight vector. In Smith, the court denied the motion to suppress. The court held "a showing of reasonable suspicion does not require an actual violation of the law because Terry accepts the risk that police may stop innocent people". I expect the court to adopt the lanquauge that reasonable suspicion is enough for a valid traffic stop and Binnette will be overruled. Here is a link to a News Channel Five story where I was interviewed on the cases.

What does this mean for Tennessee motorists? It means more traffic stops. Police will be able to stop a car for touching a white line anytime anywhere. It will lead to more pre-textual traffic stops. The police will have the power to make unfettered traffic stops. Melanie Wilson Dean of the UTK School of Law wrote a great article for the Kansas Law Review on the topic that is worth checking out.

The Fourth Amendment will soon take another hit.

Continuing Legal Education for DUI Lawyers

Last week , I was returning from Chicago where I gave a presentation to the folks that attended the DUIDLA summer session. Here is a short listing of some of the  topics that were presented.

  • Cross-examination
  • Canadian Travel When One has A DUI Conviction
  • FAA Reporting and Pilot Medical Clearance Issues
  • Crime Lab Discovery
  • Blood Alcohol Defenses
  • Challenging Breath Test Results

These were just a sampling of the topics presented. The point is does it matter what continuing education courses (CLE) that your DUI lawyer takes. All lawyers in Tennessee are required to take 15 hours of CLE each year.  Some lawyers take what ever course is the cheapest. It does not make any difference what course they take. It could be divorce law , probate law or any other course. Another method of taking classes is to take any class in order to meet the deadline. I knew of one lawyer who took an Admiralty course just to comply with the deadline. Some lawyers take CLE courses strictly in their field of practice in order to keep abreast of the changes in their field.

Hiring the right DUI lawyer is an important decision. One of the questions you might ask is what course do you take to satisfy your CLE. Do you want a DUI lawyer that takes courses that keep them up to date on the new trends in DUI defense or do you want a lawyer who takes courses in some random area of the law. One thing is certain , the assistant district attorneys who are prosecuting DUI cases across Middle Tennessee are being trained in DUI prosecution. Maybe you should hire a well trained lawyer as well.

 

Williamson County Practice Update

This post is a practice update from Williamson County , Tennessee . It appears the courts may not accept plea bargains in cases involving periodic confinement. Periodic confinement is simply allowing a defendant to serve their jail sentence over a period of time rather than to serve the sentence straight.  Periodic confinement is authorized by statute found in T.C.A. 40-35-307 .

An example is that the government wants a sentence of ten days , but during the plea bargain process , the parties compromise and agree to the ten day sentence to be served on weekends. One purpose of the periodic confinement is to save someones job.

Most counties allow some types of periodic confinement. I don't know the policy reason for denying periodic confinement. It does not apply in cases where there is a mandatory minimum such as DUI second or DUI third charges . The takeaway is to always be aware of local customs . Even though the law of Tennessee is uniform from Memphis to Knoxville , the application changes from county to county.

Stuff Your DUI Lawyer Should Know

I enjoy helping other lawyers in their DUI cases. DUI defense is a complex area . The law changes constantly. I remember when I started and the help that I received. A DUI lawyer should know some basic stuff.

One thing a DUI lawyer should know is what the per se limit of the blood alcohol concentration to convict one of driving under the influence in Tennessee . A lawyer with a paying client did not know the answer to that basic question. The blood alcohol limit needed to sustain a DUI conviction is .08 %.

 

To follow up on this topic , I will post the basic concepts everyone should know about DUI defense.

Fair DUI Flyer and Tennessee DUI Roadblocks

The Fair DUI Flyer created quite a stir recently. A copy of the image is at the top of the post.  Recently , someone used the flyer and entered  a DUI checkpoint using the information in the flyer. The basic concept is that you put your driver's license in a bag and stick it on the outside of your window. When you roll up to the DUI check point , you don't roll your wind down so the police can't smell alcohol.  The video of this tactic went viral.Cute trick. I imagine they got the idea from a DUI checkpoint video from Murfreesboro, Tn which was videoed and the citizen did everything a lawyer would suggest.

The Fair DUI Flyer takes it a step further by putting the documents on the outside of the window. In theory , the police have access to the required documents therefore no interaction is required. How would the Fair DUI  Flyer play out under Tennessee law ?

Tennessee Code Annotated 55-50-351 requires a driver's license shall display the license on demand when operating a motor vehicle . It appears the Fair  DUI Flyer complies with Tennessee law depending on your definition of display.  Tennessee motorists also has to display proof of insurance and valid registration.. One could put the documents in a bag displaying the information. My guess is it would be dropped in the plastic baggie and the police office would ask you to get it out.

Here is my thought on the Fair DUI Flyer . I wouldn't try it out on the road .  It is cute for a video trick but in the real world putting your license taped to your window is asking for a trip to the jail. One takeaway is to have your registration and proof of insurance in a clear plastic envelope so you can easily give it to police. remember, don't photo copy your driver's license and put it in the bag too. It is a crime to display a photo copy of your license in Tennessee.

 

Oklahoma May Move Closer To Prohibition

I planned to follow up to yesterday's post on defending non-citizens. However , I read about a proposed law in Oklahoma that made me change my mind. An Oklahoma senator has proposed a bill to prohibit those convicted of driving under the influence (DUI) from buying alcohol. Citizens convicted of DUI would be issued a new identification card that would state " Alcohol Restricted".

The real penalty would be on those businesses or individuals who provided alcohol to those with a alcohol restricted identification. It would be a felony for someone to "knowingly deliver ,sell or furnish alcoholic beverages to those who have been ordered to abstain from alcoholic beverages. The proposed law possibly creates a nightmare .

Imagine serving someone a beer at a tailgate to someone who has been ordered not to drink. Restaurant owners checking every patron's identification.  How can a state enforce this type of law. New Mexico considered a very similar law in 2013 which was later abandoned.

Sometimes , I wonder if state legislators think about crazy laws to propose in hopes of just getting reelected . Legislators need to show some common sense. Soon everything will be illegal in the effort to combat law breakers.

Report a Impaired Driver Get a Hundred Bucks

Another sign that America is turning into a police state .Since  2001 , Palm Beach County , Florida has had in place a Mobile Eyes program . The basic concept is a person can report a drunk or impaired driver by calling 911 . If a DUI  arrest is made , the person that makes the call gets a hundred bucks. No conviction is required .

Our country now pays citizens to report impaired driving. Need some cash to pay off your Christmas bills , sit outside a parking lot by a sports bar. Under Tennessee law , an anonymous person can report an alleged DUI driver. Very little corroboration is required.

First , no one is in favor of folks driving drunk. It is the notion of turning everyone into a policeman that is troubling to me.

Here is one way to avoid a DUI arrest this New Year's Eve in Nashville, Tn. , take advantage of the sober ride program sponsored by the Davidson County Sheriff's office.

Can I Get Jail Credit For Alcohol Treatment ?

Under Tennessee's DUI laws ,  you can get jail credit for alcohol treatment on second offense DUI charges , third offense DUI charges , and felony DUI charges. . On July 1, 2014 , new laws went into effect granting jail credit for alcohol treatment on all multiple DUI charges. Before July 1.2014. one could only obtain jail credit on DUI second charges.

 

Here is the deal ;

  • On second offense DUI charges , a person convicted of a DUI second offense can get up to twenty days jail credit for inpatient treatment or receive one day of jail credit for every nine hours of intensive outpatient treatment up to twenty days.
  • On a third offense and felony DUI charge a person convicted of these offenses can receive up to fifty-five days of jail credit.
  • A alcohol assessment is required.

Make sure you want to go to treatment before you sign up. Going to alcohol treatment just to help your case is not going to be beneficial. Go because you want to or need to for yourself. The laws are a little complex. Consult with your lawyer before you start. Sadly , you can not get jail credit for treatment on a first offense DUI.

Buzzed Driving Does Not Equal Drunk Driving

As I was driving home from Memphis this past weekend , I heard quite a few radio spots . The theme of the ads was that " Buzzed Driving Equals Drunk Driving ". The ads are part of a campaign by the Tennessee Governor's Highway Safety Office (GHSO) . The ads are designed to increase awareness of drunk driving . It occurred to me there may be a second purpose of the ads .

The concept of buzzed driving equals drunk driving creates a perception in potential jurors minds of a lower standard of proof in a criminal case . In order to prove a person guilty of DUI , the evidence must be proved  beyond a reasonable doubt . The concept of buzzed driving is legally inaccurate . In order to convict a person of DUI in Tennessee , the State of Tennessee must prove the elements contained in T.C.A. 55-10-401. The main part of the definition is as follows;

while “under the influence of any intoxicant, marijuana, controlled substance, drug, substance affecting the central nervous system or combination thereof that impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess” or while “the alcohol concentration in the person's blood is .08% BAC......

The key part is depriving the owner of clearness of mind .Nothing in Tennessee's drunk driving law mentions buzzed driving. So are the ads PR or propaganda ?

Today , I heard another ad in which the director of the GHSO Kendall Poole tells the listeners that you should not drink and drive period. This sends the message of zero tolerance of alcohol which is clearly not the law of the land.

One last fun fact. The Governor's Highway Safety Office is 100% federally funded to the tune of 24.5 million dollars.

Michael Phelps Checks Into Treatment

Olympic swimming  star Michael Phelps checked into a alcohol treatment facility after his second DUI arrest. I mention his problem because some folks in Tennessee think about doing the same thing if they are arrested for a DUI. Tennessee recently enacted some new laws about  certain benefits of getting into a alcohol treatment .

Tennessee enacted the Recidivism Reduction Act of 2014 which allows for jail credit for inpatient and outpatient treatment on second and third offense DUI cases in Tennessee. The point is do not just jump into a treatment program without first contacting a DUI defense lawyer. The act was designed to give post judgment credit for alcohol treatment. The act does allow for  post judgment credit , but it needs some attention to make sure you get the credit. You can now get jail credit for treatment on a DUI third offense as well as a second offense DUI and get jail credit for intensive out patient treatment.

The teaching point from Michael Phelps case is don't dive into to treatment without checking the water.

Questions About Driving Under the Influence of Marijuana

The topic of legalized marijuana has been a area of discussion since Colorado and Washington became the first states to legalize marijuana. Some questions have cropped about about driving under the influence of marijuana. in fact , one Pittsburgh Steeler player did not know it was against the law to drive stoned . Z San Diego TV ran a story on this subject recently on five things you need to know about driving under the influence of marijuana. Here are a few of my observations.

The effects of marijuana

According to the National Highway Traffic Safety Administration , marijuana contains THC which produces alterations in motor behavior , perception ,memory and other bodily functions.

Effects of Crash Risk

There is no data on risk of crashes with marijuana use.

How high is too high

it is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects according to the National Highway Traffic Administration. Performance impairments are noted within 1-2 hours following marijuana use .

The bottom line is there is not enough research on the effects of marijuana and driving. The source I used from NHSTA is from a 2004 study. It appears a new study will be out soon.

The bottom line is in defending driving under the influence charges in Tennessee there must be some evidence of delta-9-THC in the blood test. delta-9 is  the chemical responsible for most of the psychoactive effects of marijuana. More to come.

Tennessee DUI Law Has a Loophole ?

The Memphis Commercial Appeal has done some great investigative reporting about a loophole in Tennessee's DUI law. The only problem is the loophole has been around since 1989 and is not really a loophole under Tennessee's DUI laws. In reviewing three Shelby County convictions for vehicular homicide , the paper found that in those three cases  the defendant received probation for the offense. It is not a loophole . It is merely the law.

Vehicular homicide and vehicular assault are different laws from the DUI statute. The sentencing considerations are completely different and are governed under the Sentencing Reform Act of 1989. Most Class B felonies are eligible for alternative sentencing. Alternative sentencing is where the court can consider probation or split confinement.  Involuntary manslaughter and reckless homicide are eligible for probation as well.

Reporter Beth Warren should be ashamed for using the word loophole when in fact it is the basic principle of Tennessee's sentencing laws. Her goal is to use inaccurate headlines to sell news. Florida attorney Flem  Whited was quoted in the article and I agree with his comments.

"I think Tennessee has it right," Whited said. "The judge ought to be able to make a valued determination of the sentence that is appropriate for the person in front of him."

Normally , the process is the defendant is convicted or pleads guilty to some range of punishment. The court conducts a sentencing hearing. The court receives evidence such as a presentence report, victim impact statements from the family , testimony of the family , and evidence of from the defendant. it should be left to the court to decide the punishment for these serious crimes rather that mandatory sentencing.

In most vehicular homicide cases , the defendant did not intend the consequences of their actions. It is far better for the court to hear from the parties before deciding the punishment than just sending folks off to jail.

Contrast that to the DUI sentences . In all Tennessee DUI cases , there is mandatory jail time from a first offense to a felony DUI. I could sell one hundred pounds of marijuana and get less jail time than a first offense DUI conviction. I might even get it expunged if I had no criminal record. maybe it is time to abolish mandatory jail time for DUI first offenders and give them a chance of expunging a DUI from their record.

 

Collateral Consequences of a DUI Conviction NFL Style

 DUI arrests and convictions have collateral consequences on your job, your freedom , your driver's license and several other areas of your life. The NFL has proposed some consequences of a DUI charge for its players. The NFL is pushing for a mandatory suspension of any NFL player convicted of a DUI . Some reports indicate that a one game suspension is being discussed between the NFL and the players union.

Is there a double standard in how the NFL treats its owners verses the players ? Colt's owner Jim Irsay was arrested on drugged driving charges where he had prescription bottles in his car along with $29,000.00 in cash. The NFL has taken no action .NFLPA President DeMaurice Smith has criticized  the NFL's handing of Irsay's arrest . What is good for the goose is good for the gander . The NFL should adopt the same standards for the owners and team employees as the players. Suspend them one game of revenue just like the players. If you have $29,00.00 in your car you should be able to afford a cab or maybe he should have Uber on his phone.

Issue Spotting in Tennessee DUI Cases

I was reviewing my material for a CLE presentation  for the Tennessee Bar Association tomorrow. The topic I was assigned was the " Nuts and Bolts of DUI Defense ". One of the big mistakes that I witness among  Tennessee DUI  lawyers is identifying the issue. While I was at the Trial Lawyers College , one of the instructors asked me how I would hunt buffaloes. Would you use a rifle or a shotgun ? The takeaway point is if you are going to bring down a big animal . You want a laser guided scope on a rifle to bring it down. Much is the same in a DUI trial. Instead of fighting every issue , focus on the key issue that can bring home a not guilty verdict.

Here is a short list to help in identifying the issues in a DUI case ;

  • What was the driving ? was there probable cause to stop the accused ? Was there evidence of good driving ?  Physical control case ?
  • Did the accused make a admission of drinking ? How many ? Duration ? Time of last alcohol consumption ?
  • Was there physical evidence in the car ?
  • Field sobriety Tests ?
  • Was there a video ?
  • How was their interaction with the police ?
  • Witnesses ?

Once you identify the issue of the case , then you will be able to craft your theory of innocence. The key point is don't shoot a buffalo with a shotgun . Find your one or two key issues and drive your point home.

Another Reason Not To Perfrom The Field Sobriety Tests

One of the major DUI investigation tools that police use are the standardized field sobriety tests. Most citizens accused of driving while intoxicated think that if they pass these tests they will not be arrested for DUI. Little do they know they can still be arrested, prosecuted, and face trial even if they pass the field sobriety tests. Who made that silly rule? Why the Tennessee Supreme Court, of course.

The question was recently asked of the Tennessee Supreme Court whether there was sufficient probable cause to arrest a citizen of DUI if they passed the field sobriety tests. In State of Tennessee v. Bell , the Court held other factors such as driving, smell of alcohol, and admissions of drinking are sufficient to create probable cause to arrest a citizen for DUI. The Court further opined that "even if Mr. Bell correctly performed the field sobriety tests, we decline to conclude that his performance sufficiently undermines the aforementioned circumstances so as to defeat a finding of probable cause for DUI."

What does this ruling mean to a citizen accused of drunk driving?

  • Never under any circumstances perform the field sobriety tests.
  • Refusal to perform the tests cannot be held against you.
  • Passing the field sobriety tests mean nothing. You will, more times than not, still be charged with a DUI.

Los Angeles DUI attorney, Lawrence Taylor, has often spoke on the DUI exception to the Constitution. The Bell case is just another example.

 

Rights of a DUI Suspect in Tennessee

Citizens suspected of driving under the influence in Tennessee do have some rights during the arrest process. One of those rights is the ability to request an independent sample of your blood. The  purpose of this law is to give the accused the right to test his or her blood to determine if test is accurate. Typically, two blood samples are taken during the procedure. One is kept by law enforcement and tested, and the second sample is saved if the person who was arrested wanted to have it tested.

The question is how do you obtain a independent blood sample after having given a breath test sample? First, breath alcohol testing is routinely performed in Nashville, Davidson County, Tennessee DUI cases.  In the surrounding counties outside of Nashville, like Williamson County, breath tests are not used. I guess they do not trust the results. If you submit to a breath test you have the right to request that an independent sample of your blood be taken and also tested. Here is the procedure:  1)  Make the request. 2) Law enforcement must then take you to have the blood drawn.  Note, that you must be able to pay for the sample yourself. Law enforcement is not required to pay for your independent sample. 3)  Medical personnel, usually at a hospital, draws your blood. 4) You must arrange to have the sample tested, also at your own expense.

What happens if the sample you have asked for is taken? The appellate courts have ruled in two cases that failure to provide a defendant a independent sample is a due process violation. The remedy in these cases for a due process violation is a dismissal.

In State v Livesay, the Court dismissed a DUI charge because law enforcement did not allow the Defendant's doctor to draw his blood while he was in jail. The Court held this was a due process violation. In State v Geselbracht, the Court of Criminal Appeals again held that it was a due process violation when the police denied Mr.Geselbracht a independent blood test.

The principle is that you have a right to request a independent blood test after you submit to a breath test. One interesting issue in all of these cases is the requirement that the defendant be able to pay for the sample himself. Who pays for the blood sample? What about people that may not have the money to pay for an independent blood sample? Is this also a due process violation?

Kerry Kennedy On Trial For Driving Under The Influence Of Ambien

Kerry Kennedy is on trial in a New York courtroom . The charge is driving under the influence of a generic form of Ambien . Most folks don't realize they can be charged with driving under the influence of a prescribed  medication. Ms. Kennedy's defense is that   she was rushing off to the gym and took a sleeping pill by mistake . After she failed the field sobriety tests , she agreed to a blood test where Zolpidem was found . Zolpidem is a generic form of the sedative Ambien . According to her lawyer's opening statement , it was a simple mistake.

In Tennessee , mistake of fact is a defense . However , I don't think it would apply in Ms. Kennedy's case .Mistake of fact is a defense if it negates a mental element. Under Tennessee DUI law, there is no required mental element . Ms. Kennedy may have a  better defense under Tennessee law as to involuntary intoxication . By this I mean , she did not realize the effects of the medication when she took the pill.

There would be one roadblock in her DUI defense in Tennessee. A judge reads the jury the laws they must use in deciding the case commonly referred as a jury charge . In Tennessee , the judge would instruct the jury it  is not a defense to being driving a car under the influence of a prescription drug.

Reading her lawyer's comments in a article on the trial , it looks like his real defense is she is such a good person that she would never do this type of thing. It might work if your name is Kennedy .

 

Will Your Circadian Rhythm Effect Your Field Sobriety Tests ?

Face it most drunk driving arrests (DUI) are made between midnight and 4:00 A.M. Los Angeles DUI lawyer Lawrence Taylor  posted about the effects of the your circadian rhythm  and the field sobriety tests .  Your circadian rhythm is basically your body clock. It stands to reason that if your are doing a agility test  late at night , your body might not perform as well . it is common knowledge that west coast or east coast football teams don't play as well when they travel to the opposite coast.

British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological functioning when achieved in the morning." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555.

 

 

It stands to reason that there are more factors that impact the field sobriety tests than just a beer or two.

Don't talk Yourself Into A Jail Cell

Denver , Colorado DUI attorney Jay Tiftickjian wrote a recent blog post on " It never pays to talk to the police". I agree 100 % . One reason citizens talk to police is that is the way we are wired. We are brought up to believe the police will help us if we explain the facts . Now , the pressure is to arrest folks .Our forefathers knew what they were doing when they wrote The Fifth Amendment  into the U.S. Constitution the right to remain silent. You can't talk yourself out of an arrest.

Here is an  some example ;

Officer : " Have you had anything to drink." You: "Yes. I had a glass or two of wine with dinner."

This one statement gives the officer the right to order you out of your car to begin a DUI investigation. Then , your probably going to be charged with a DUI and going to jail. It is always better to refuse answering any questions.

Attorney Tiftickjian uses this wise passage in his post;

More than 60 years ago, in Watts v. Indiana, 338 U.S. 49, 59 (1949), Supreme Court Justice Robert H. Jackson, a jurist with decades of experience as a prosecutor, including the U.S. Chief of Counsel for the prosecution of Nazi war criminals in Nuremberg, Germany, wrote that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”

A  U.S. Supreme Court Justice recognizes that no attorney should let his client speak to police let alone speak without a lawyer present.

You can't bargain with the police.

You might self incriminate yourself.

A saying from World War II is in order , "Loose lips sink ships." In today's world loose lips gets you arrested then possibly convicted.

 

 

New Tennessee DUI Law Proposal

Last December , I was asked to participate in a meeting about a proposal by the folks at the state mental health department on a DUI law . Basically , the law will give folks that are facing a DUI jail sentence for a second or third offense DUI charge to get more jail credit for treatment. The bill was proposed to several groups including MADD, the District Attorney General's Conference , law enforcement , and other key players.

While the bill is not perfect , there are some positive changes. Here is a link to the proposed bill . I would invite your comments on the bill. It has not passed yet. So any comments might be helpful in tweaking the bill.

Murfreesboro , Tennessee DUI Alert

I really don't know what a blog really is supposed to look like. I comment on issues that interest me as well as things that come up in my law practice. Today , I thought I would report on how DUI cases are being handled in Murfreesboro, Tn. In 2012 , the Tennessee Legislature passed a law which enabled some criminal offenses to be expunged from your criminal record.

In 2012 , the Tennessee Legislature passed a law which enabled a person to expunge certain criminal charges from their record. Some of those charges that can be expunged can be found here . The reason this is important is in Murfreesboro , Tn. is certain DUI cases may be reduced to a reckless endangerment charge. Under the expungement law , a reckless endangerment case may be expunged at a later date .

In current plea bargaining agreements , a defendant is required to sign a waiver that a defendant will not seek an expungement of a reduced DUI charge . An execution of a waiver is a new wrinkle in the DUI process in Rutherford County. It appears this new policy is on orders from the District Attorney. What will the end result be with this new policy ? Probably more trials are in the forecast.

Why You Sholdn't Do Field Sobriety Tests ?

In most Tennessee drunk driving cases (DUI) , the police ask you to do some field sobriety tests. Most folks want to cooperate with the police and they try to do them. You just made the wrong decision. There are several reasons why you should not do the field sobriety tests ;

  • Under Tennessee law a citizen is not required to give evidence against themselves when asked to perform field sobriety tests.
  • The field sobriety tests are not scientific tests under Tennessee law.
  • Since they are not scientific tests , they are judged subjectively. Meaning , a police officer makes the decision.
  • Test conditions affect the field sobriety tests. Was the test surface level , lighted properly, and dry ?
  • Shoes with heels two inches or higher can affect the test.
  • Folks over 65 may have a hard time doing the tests.
  • Folks overweight may have a hard time doing the tests.
  • Medical conditions such as leg problems , old broken bones in your leg , back problems , inner ear problems are just to name a few.
  • Some argue that their is a gender bias in the field sobriety tests and are unfair to women.

Once a police officer smells alcohol on your breath or you admit to having two beers , your going to be arrested for a DUI. You can't talk your way out of it . You can't walk the line out of it. Exercise your constitutional rights and do not give the police evidence that can be used in court against you.

Franklin DUI Checkpoint Alert

The Franklin , Tennessee Police Department announced a DUI checkpoint for November 15,2013. From the announcement , it will be somewhere on Hillsboro Road.  In fact , the Franklin Police Department posted this announcement.  This is the teaching point of this post. In order to comply with any constitutional problem with DUI checkpoints or DUI roadblocks , the police in Tennessee have to comply with certain safeguards established by the courts.

 

Article I Section 7 of the Tennessee Constitution  regulates unreasonable searches and seizures by the government. Normally , a car on Tennessee highways cannot be stopped without probable cause that a crime or traffic violation occurred. However , The Tennessee Supreme Court has  upheld DUI roadblocks if they conform to certain criteria.

In State of Tennessee v. Downey, the Tennessee Supreme Court set some guidelines for a DUI checkpoint;

  1. There must be limits on the police officer's discretion.
  2. There must be a higher authority to select the time and location of the DUI checkpoint rather than the officers working the checkpoint or DUI roadblock.
  3. The procedures for the establishment of the DUI roadblock should be established by some administrative regulation or rule.

  

Drive safe and drink responsibly.

  

3200 Tennessee DUI Cases in Jeopardy

     

Chattanooga criminal defense attorney Jerry Summers discovered a major problem with a blood alcohol test in a vehicular homicide case he was handing  Mr.. Summers requested an independent sample of his clients blood. The independent test came back completely different than what the Tennessee Bureau of Investigation (TBI)  analyst Kyle Bayer reported. The case against Mr. Summers' client was dismissed and an investigation ensued.

From reports , it appears Mr.Bayer switched two tubes of blood.

"All indications are that this was an isolated incident by an examiner who, despite extensive training, switched two adjacent blood samples at the onset of the analysis process and then failed to follow a number of procedural checkpoints which would have caught the error," writes Robert Daniel Royse, assistant director of TBI, in a letter dated Tuesday and obtained by the Times Free Press.

Mr.  Bayer was later fired  from the TBI. My question is if it is a one time mistake why was he fired ?  I think there might be a little more to the story. The big question is how will this affect your DUI case. Kyle Bayer performed over 3200 blood alcohol tests. All of his tests are being send to an independent lab for retesting. it is anticipated that it will take until February of next year fro the tests to be complete. It is likelihood all pending cases will be delayed.

The possible defenses to these cases may be a break in the chain of custody. Rule 901 of the Tennessee Rules of Evidence provides a requirement for authentication as a condition precedent before the evidence is admissible. Meaning that Mr. Bayer might have to come to court and testify in order to maintain the chain of custody. One alternative is that the state might decide to prosecute the cases without the blood alcohol evidence. One thing is for sure . We can no longer accept the lab reports without a through examination.

Avoid Driving While Intoxicated Tip 1

You know why they serve food at cocktail parties ? It slows down the absorption of alcohol. Texas DUI lawyer Deandra Grant  wrote a great post  on how to avoid driving while intoxicated. Tip 1. Notice I borrowed her title.

Drinking alcohol on an empty stomach increases rapid gastric emptying which is associated with a much faster absorption of alcohol into the blood stream.The alcohol goes right through the stomach into the intestines which absorb the alcohol faster. So drinking on a empty stomach means the alcohol is processed more quickly. Food in the stomach is the number one factor that influences the absorption of alcohol from the stomach.

Drinking with food slows down the absorption of alcohol because food is present with the alcohol so the alcohol is trapped in the stomach until the food is digested.  Ms. Grant advised eat a wing or a nacho at happy hour. My choice is a have something to eat at a tailgate party. Food makes a difference. In fact , Metro Nashville Police usually ask about your last food intake in their 132 form which is required in every DUI case in Nashville,Tn.

In Tennessee it is not against the law to have a drink and drive . It is only illegal to drive with a blood alcohol concentration of .08 BAC or that alcohol or another substance impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of oneself which the driver would otherwise possess.

Remember the best way to avoid a DUI is to drink responsibly and when in doubt take a cab.

 

 

Can A Tennessee DUI Case Be Dismissed If the Police Lose The Video ?

One of the critical pieces of evidence in any Nashville DUI case is the arrest video tape. Surprisingly , few Metro Nashville police cars have video dash cams. In Williamson County , Tennessee almost all  police cars have video dash cams. The Tennessee Supreme Court recently issued a ruling on lost video tapes.

In some DUI cases , the arrest video is lost or destroyed for various reasons. For years the courts struggled on how to deal with a lost video tape. In some cases , the court gives a Ferguson charge which allows the jury to infer that the lost video may be favorable to the accused.

In State of Tennessee v. Merryman , Judge Stanley in McMinnville , Tennessee dismissed  a DUI charge based upon the loss of the arrest video. The Tennessee Supreme Court upheld the dismissal of the DUI charge. The court found that dismissal of the DUI charge was an appropriate remedy due to the fact the defendant may be denied her right to a fair trial.

Here is the framework for a successful motion to dismiss. One needs to prove the Ferguson factors. The first factor is the degree of negligence in the state's failure to preserve  the video recording. Second , the court must examine the significance of the destroyed evidence in light of the probative value and reliability of the remaining or secondary evidence.Finally , the court must consider the sufficiency of the remaining evidence used at trial to support the convictions.

Merryman is important because now the courts have the power to dismiss cases if their is a loss or destruction of evidence .

Alcohol Treatment and Tennessee's Drunk Driving Laws

What should be the goals of  Tennessee's drunk driving laws? Punishment? Toughness? Rehabilitation? DUI laws are a political football in Tennessee. The Tennessee Legislature creates some new DUI law every term from mandatory ignition interlock to increased punishment. But what are the goals?  Should our government encourage people charged with a crime to get help? Here is a thought from someone who has been defending DUI cases and helping people deal with a DUI charge since 1994.

First, treatment should be encouraged and rewarded. Now, I do understand that some people will go to treatment just to try to make their case look better. However, a great number of those charged with DUI get the wake up call of their lives and recognize their alcohol issues once they are arrested. Under current Tennessee law, only those charged with a DUI second offense can get credit from a judge for participating in a alcohol or drug treatment program. One other catch is that the treatment has to be post judgment or after someone pleads guilty. When does a person need treatment most? As soon as they recognize and admit they have a problem. Why do they only get credit  after a judgment is entered?

Tennessee's DUI law should be changed to give everyone jail credit for inpatient alcohol and or drug treatment regardless of the offense charged. Charged with a first offense DUI all the way to a felony DUI one should be given jail credit for treatment. Secondly, a defendant should be given credit whenever they complete the treatment after an arrest. Why should a person have to wait to do treatment until their DUI case is concluded? It does not make sense to this simple lawyer.

It goes back to what is the goal of a law? There are many definitions of what a law is simply by reading the dictionary.  A law is simply a rule to establish social order. Why only reward DUI second offenders? Are second offenders special? People that seek and complete treatment should be given consideration regardless of the offense and when they seek treatment.

Society is better served if a government helps its citizens.

Tennessee DUI Law Alert

When I first read that the Tennessee State Legislature was going to require all of those convicted of first offense DUI in Tennessee to have an ignition interlock device, I thought the lobbyists for the ignition interlock companies were simply hard at work. Once the bill went into effect, I was pleased to read that those eligible for a restricted driver's license had been expanded. I thought everyone practicing DUI defense was aware of the new law. However, it was not until I went to court and talked to several lawyers who did not know those with multiple offense DUI convictions are eligible for a restricted license.

Tennessee Code Annotated 55-10-409 was amended and went into effect on July 1,2013. The new law made all DUI offenders eligible for a restricted driver's license with the installation of a ignition interlock device. It also allows those convicted of DUI second offense or greater to apply for a restricted license. Here is the catch~~You must have the device installed for the life of the license revocation. For example, if your license is revoked for a third offense conviction and as a result your license is spended for six years, you could be eligible for a restricted license as long as you have the device installed. 

There are some exceptions to this amended law. A conviction for vehicular assault by intoxication, vehicular homicide by intoxication, aggravated vehicular homicide or similar offense in another state precludes one from obtaining a restricted driver's license. One other big exception is if another person is "seriously injured or killed" in the "course of conduct that resulted in" the driver's conviction for DUI.

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Tennessee Supreme Court Alert

The Tennessee Supreme Court has grant permission to appeal in two Driving Under the Influence (DUI) cases. The court has granted the appeals to test what are the limits a trial court has to dismiss DUI cases. The two cases to be on the watch for are St. of Tennessee v. Bell and State of Tennessee v. Merriman.

In St. v. Bell , Mr. Bell passed the field sobriety tests with flying colors. In fact, the court stated he did "pretty dog-gone good."  After Mr.Bell passed the field sobriety tests , the police asked him to submit to a blood alcohol test. Mr. Bell should have decided just to do  the field sobriety test. Mr.Bell was arrested. The court dismissed the DUI charge. State appealed. The ruling was affirmed by the Court of Criminal Appeals. The issue is can a trial court dismiss a DUI case for lack of probable cause. Under The Tennessee Rules of Criminal Procedure, there is no procedure to file a motion to dismiss for lack of probable cause. a defendant can only file a Rule 12 motion to dismiss. Nashville Lawyer David Raybin writes a hot list of cases. Ben Raybin predicts that the case will be affirmed. I hope it will be affirmed.However , I see the court reversing the decision. Field Sobriety tests are not the end all be all of any DUI case.It is just one part of the evidence. I expect the court rule that a jury should decide.

In State of Tennessee v. Merriman , the Court of Criminal Appeals upheld a dismissal of a DUI case in Warren County Circuit Court. The police lost a DUI video.The court  dismissed the case. In this case i agree with Mr.Raybin. There should be some harsh remedies for the loss of destruction of evidence especially videotape evidence. Violations of the discovery rules should be dealt with accordingly. If a suspect destroys evidence , they are charged with tampering with evidence. The sword of justice should come down as hard on the police who lose evidence.

Stay tuned to these two important cases before the Tennessee Supreme Court.

Should You Hire An Experienced Lawyer ?

Seth Godin wrote a great blog post about river guides. The post hit home since I went down the Colorado River on a raft trip last year. Mr. Godin talks about a river guide piloting a dory down Lava Falls. Lava Falls is one of the best rapids in the Grand Canyon. It takes great skill , experience , and knowledge to get past the rapids. Why ? The water is always changing. The flow might be different. Rapids move. A river guide has but one goal.Get the boat to the end of the river.

Knowledge of the river much like the knowledge and experience of a DUI lawyer is critical. While the cases are much the same , each case is different .Different judges, assistant district attorneys, and different facts chart a different course for each case. An experienced lawyer may be able to guide you out of danger. Mr.Godin writes that the practice of being a great guide is choosing the right tactic, the ability to hold the tiller with confidence but not locking into it. A great criminal defense lawyer does much the same thing. Pick a single defense not a shotgun approach , stay true to the defense , but not lock into the defense if something changes.

A young reckless pilot might get lucky one time or the lawyer that always plea bargains might get lucky. Like the attorney this week that wondered why his case got reduced. The lawyer had no clue that forced blood draws are under attack based on a recent U.S.Supreme Court case. The lawyer got lucky on the kindness of a assistant district attorney. I wonder who he might have plead guilty that had a valid defense.

The key is if your facing a criminal conviction that has life long consequences , you want the best pilot you can get to get you down the river safely.

 

By the way , the image is of a dory heading down Lava Falls.

What You Don't Get In General Sessions Court ?

Someone asked me today to get some documents so we could review a case.The problem is under Tennessee law, you are not entitled to anything to discover what evidence the State of Tennessee has in it's possession.

Here is a short list of what you don't get;

  1. No video evidence.
  2. No arrest reports.
  3. No witness statements.
  4. No field sobriety testing reports.
  5. No motion of discovery.
  6. Taped confessions.

The list goes on. In fact , Rule 16 of the Tennessee Rules of Criminal Procedure does not apply in General Sessions Courts in Tennessee. Why ? Because the rule makers say so.

What are you entitled to get ? You only get what you can get yourself. Most attorneys get the warrant. One can get the arrest warrant because it is a public record.

The question is how can one decide to settle ones case with limited information. Is it time to have some basic information disclosed at the General Sessions Court level ?

 

DUI Law Alert Supreme Court Declares Forced Blood Draws Are Unconstitutional

The United States Supreme Court ruled  that forced blood draws are not valid based upon the fact that alcohol may dissipate over time. Missouri argued for a per se rule that all forced blood results are valid based upon the exigency of the circumstances.

Missouri unsuccessfully argued that alcohol dissipates over time, therefore this meets the exception to the search warrant requirement. Does this mean all forced blood draws are invalid ?No. The U.S.Supreme Court rules it was fact specific and should be looked at in a case by case basis.

The big question is how does this ruling effect the forced blood draws in multiple DUI cases in Tennessee. In Tennessee , the police are given a statutory right to take a accused blood sample if they have a prior DUI conviction. My opinion is that T.C.A. 55-10-406(f)2 is unconstitutional. T.C.A. 55-10-406(f)2 allows police to make a accused submit to a  mandatory blood test for alcohol.Currently , I have filed a motion that has been under advisement pending the McNeely ruling.

Want to read a copy of the McNeeley opinion ? Here is the link .

Why Are The Results Of My Blood Alcohol Test Delayed ?

Every DUI case in Nashville , Tennessee and every where else in Middle Tennessee is being delayed by the blood alcohol tests. Once a person submits to a blood alcohol test , the sample is send to one of three forensic labs run by the Tennessee Bureau of Investigation. According to a memo send to the Administrative Office of the Courts , the turn around time on blood alcohol tests is about six weeks. I am guessing that is six weeks from receipt of the sample. The real problem is in the testing for drugs.

The Tennessee Bureau of Investigation first runs a test for alcohol.Currently,the testing of the sample is complete if the results are .08 BAC or higher. If the sample is less than .08 BAC , the sample is retested if requested by the arresting officer. According to the March memo , there is a 32 week turnaround time for a drug toxicology report performed by the Nashville lab. Why a 32 week delay ? Where does the blood sample sit for the 32 weeks ? What about the chain of custody ? Are you being denied a speedy trial ? Under severe bond conditions ? There are a host of problems that are caused by the delay.

 

Here is the big question. Due to the pressure to get these test results out , are the labs now taking short cuts ? Let's hope not .

New Mexico May Ban Alcohol Sales to DUI Offenders

New Mexico has some of the highest highway accident  death rates in the nation. In order to combat those death rates , the New Mexico State Legislature has proposed some laws that would ban the sale of alcohol to those convicted of driving under the Influence of alcohol.  State Legislatures constantly rework the DUI laws every session. It always looks good on your resume to be tough on crime and in particular drunk drivers. Will the proposed law work ?

First , the state would require a special license that would advise that one has been convicted of a DUI. Second, a bar , grocery store , or liquor store would not be allowed to sell that person alcohol, but first they would have to check the person's ID. Will that happen every time ? Would happens to the bar or store that may miss a ID?  Here is one comment on the proposed law ;

“I don’t see this affecting the reduction of death and injury,” said Linda Atkinson, executive director of the D.W.I. Resource Center in Albuquerque, which has pushed for tougher drunken-driving laws. “A lot of times, you see bills that make logical sense, but can you really prohibit someone from purchasing alcohol?”

A advocate for tougher drunk driving laws does not even believe that the new law would be effective. If New Mexico passes this new law it will join Alaska in prohibiting the use of alcohol to those convicted of DUI. Compare these laws with Tennessee's laws on bail bond conditions. Tennessee has some laws in effect that subject one to random drug screens which detect alcohol use.This bail bond condition is used in Nashville frequently. It seems to me  that New Mexico's get tough on DUI is going to be expensive and tough to enforce.

 

Audit Reveals Mississippi Misused DUI Funds

An audit by the Inspector General for the U.S Department of Transportation has uncovered that the State of Mississippi has misused federal funds designed for DUI enforcement. The federal government provides funding to state governments to help enforce DUI laws. Mississippi, like Tennessee, does not have a law on the books that prohibits all open containers of alcohol in motor vehicles. Due to the lack of a complete open container law, the government diverts some federal money to DUI enforcement . Tennessee is in the same boat on this issue as Mississippi; however, there is currently a bill in the state legislature that will cure the problem.

Mississippi misused federal funds by using the federal money for other reasons (i.e. seat belt law enforcement). The audit criticized the way Mississippi handled the money. One of the proposals made in the report was to require one DUI citation per 8 hour shift.

Tennessee also receives money from the National Highway Safety Traffic Administration . I don't know where all the money goes but most of it goes the Governor’s Highway Safety Council . In fact, their website states the office is all federally funded. Also according to their website , the money goes to various places. Some of the federal dollars goes to fund extra  DUI officers in Nashville, other cities and counties. These officers are commonly known as DUI grant officers. Under the recommendation set in Mississippi that there be at least one DUI citation or arrest per shift, it appears the government is setting an arrest quota. In fact, some Nashville DUI officers have received counseling because they don't make a two DUI arrest benchmark. Clearly, Mississippi misuses federal money from the audit . The question I have is: Does the DUI grant and federal money create another federal bureaucracy by forcing officers to make a poor arrest decision based on the DUI grant or encourage overzealous officers to make an arrest?

 Sometimes government can get too big and powerful.

Choosing a Treatment Option

One question that comes up in handling drunk driving cases is "should I go to treatment." It is always a hard question . Going to a alcohol treatment is a personal decision not a legal decision. It should be based on a desire to help you not just get out of a DUI charge. Tennessee does allow jail credit of up to 28 days for inpatient treatment . Warning. Tennessee does not give credit for prejudgment jail credit.

Should you decide to seek treatment then you have to pick a provider. I ran across a article on Picking Addiction Help  by Jane Brody. Ms. Brody discussed a new book on addiction by William Cope Myers. The book "Now What ? An Insider's Guide to Addiction and Recovery" provides some suggestions on how to pick a treatment provider. Here are some of the questions to ask;

  • Do they offer a full assessment before admission ?
  • Is there a social worker on staff to assist with work or family problems ?
  • Is there a program for family members to participate in learning the essentials of recovery and how to make the transition to return home?
  • Is there a aftercare program

Alcohol addiction is an illness.  Treatment is an option in Tennessee DUI cases to help solve the problems one faces. Just make sure you consult with your lawyer before entering treatment.

 

A Reminder to Keep Your Mouth Shut

   

One of the most important things to remember when one is facing a criminal charge in Tennessee is to keep your mouth shut. I often refer to this as my "million dollar advice." I represent  good folks who might have made a error in judgment. So , they were raised to cooperate with the police. even some folks blog about that who have no legal degree. They are wrong. You have no legal duty to cooperate with the police in a criminal investigation.

If you are stopped by the police , you do have to show your ID. Once that is complete , you have no legal obligation to say anything. Remember the old Dragnet show . Anything you say can and will be used against you. Here are some illustrations;

Officer: Have you had anything to drink tonight ?

Accused: I had two beers.

Next thing you are being asked to get out of your car do do some field sobriety tests. The police still don't tell you you don't have to do these tests.Once you admit to drinking, they can ask you to get out of the car.

Officer: Someone tells us that you may have child porn on your computer. What to talk to us about it ? Or  Someone is accusing you of touching someone. Want to tell us your side ? We can help you ?

Accused; Sure I want to talk to you without a lawyer present so I can be tricked into confessing.

 

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Driving Under the Influence of Ambien ?

                                  

I have been handling driving under the influence of ambien cases for awhile. The warnings were out there but it was sometimes hard to convince a Assistant District Attorney much less a jury of the effects of ambien. Most people can't grasp that someone can sleep drive unless it has happened to them.Now there is hard proof of the effects of ambien.

The Food and Drug Administration announced new recommendations of the use of ambien based upon laboratory studies. Now , women should take less of the drug because they take longer to metabolize the drug. The FDA has reports of at least 700 driving mishaps with people on ambien or zolpidem.It does not count those that were charged with driving under the influence (DUI).

You now have defenses to driving under the influence of ambien.Make sure to check with your doctor if you are taking the correct dosage per the FDA report.

Blood Draws and The Supreme Court

  

The U.S.Supreme Court heard a important case for all those that practice DUI defense. A blood alcohol  case was on the docket today. The issue is whether the police can avoid the search warrant requirement in seizing a blood alcohol sample. Lyle Denniston wrote a recap on the oral argument on the SCOTUS Blog .

It was interesting that Mr.Denniston opined that the court was trying to seek a compromise on the case during the argument. Most of the Justices agreed that their should be a requirement for a warrant to take someones blood. The question is when should the warrant requirement be waived. The government argued that the time factor in getting a blood sample with a search warrant requirement was critical and should be waived. Based upon the tone of the oral argument it appears the court is not going to allow a across the board waiver of a search warrant.

The case is very important as it applies to Tennessee. In some Tennessee DUI cases , there are mandatory blood draws for multiple DUI offenders. I agree with Mr. Denniston that there will be some type of compromise. The question for those in Tennessee will be whether the mandatory blood draws will stand up over court review.                                       

Willamson County Sobriety Checkpoints

A friend of mine forwarded the DUI sobriety checkpoints for Williamson County for this holiday season. Don't worry. The police are supposed to publish the checkpoint locations and times. Here is the schedule ;

Sobriety Roadside Safety Checkpoints
 
      The Williamson County Sheriff’s Office along with other jurisdictions will be conducting sobriety roadside safety checkpoints on the following dates and times:  
 
      Thursday, December 20, 2012         11 p.m. to 1 a.m.       Highway 31 South
 
      Friday, December 21, 2012              10 p.m. to midnight    Highway 100
 
      Thursday, December 27, 2012           7 p.m. to 9 p.m.       Highway 96 East
 
      Friday, December 28, 2012                9 p.m. to 11 p.m.     Highway 431
 
      Monday, December 31, 2012           11 p.m. to 1 p.m.       Carothers Parkway         
 
 
     The Williamson County Sheriff’s Office recognizes that sobriety checkpoints are highly visible and effective tools in the battle against impaired driving.  Extra  deputies will also be on patrol throughout the county on those nights looking for impaired drivers.
 
     These sobriety checkpoints are funded by grant money from the Governor’s Highway Safety Office.       
     
 
                                                              ###
 
     For more information contact Sharon Puckett, Public Information Administrator, Williamson County Sheriff’s Office at (615) 440-3310.  

If you want more information on Tennessee sobriety checkpoints here is a link to a video on the subject.

Bloodshot and Glassy Eyes Are Not Clues to Drunk Driving

            

In almost  every DUI arrest warrant that I review , there is a common denominator. The defendant has  red , bloodshot , and glassy eyes. Alcohol is not the only cause for red bloodshot and watery eyes. Here is a complete list ;

Possible Causes of Bloodshot Eyes at Night

  • Environmental toxins
  • Sun exposure
  • Eye Strain/overuse
  • Fatigue
  • Cigarette smoke
  • Chemical fumes
  • Overuse of contact lenses

Other Possible Causes of Bloodshot Eyes

  • Blepharitis
  • Pink eye/conjunctivitis
  • Corneal ulcers and infection
  • Corneal abrasion
  • Diabetes
  • Foreign bodies in the cornea and conjunctiva
  • Iritis
  • Ocular lacerations and intraocular foreign bodies
  • Uveitis
  • Blood thinning drugs
  • Stress and anxiety
  • Cold and flu
  • Allergies and hay fever
  • Pregnancy
  • Kidney failure/problems such as kidney stones
  • Liver disease
  • High blood pressure/hypertension
  • Glandular fever
  • Menstruation/menopause
  • Mumps
  • IBS
  • Dry Air
  • Infection
  • Improper diet
  • Deficiencies in Vitamin B2 (riboflavin), B6 (pyridoxine) and the amino acids histidine, lysine or phenylalanine

So , why bloodshot eyes are associated with alcohol. It should not be used in evidence since so many other factors can trigger bloodshot eyes.

Should Everybody Blow ?

                                

Should everyone in America blow in a breath test machine before they start their car ?  That is exactly what Newsday is proposing in an editorial in reaction to a police officer's tragic death. Officer Joseph Oliveri was responding to a car accident in which James Ryan hit some cars. It is alleged that Mr. Ryan was driving while under the influence. Officer Oliveri was working the accident when another car hit and killed him. . NewsDay now wants all cars to have a breath alcohol machine installed.

The first question is should  lawmakers requires ignition interlock devices in all cars in America to combat drunk driving ?  Everyone agrees that driving under the influence is a serious problem . Drunk driving causes accidents , serious injuries , and death every single day. No one is in favor of getting behind the wheel drunk. However , should the threat of drunk drivers imprison everyone who owns a car by having a device on the car. Consider if the law takes effect requiring everybody to blow. There will be no more dinners with a glass of wine.  Having a beer at a football game done.

My father had a saying that you can't legislate morals. Does society create a new prohibition ? Our country must find the root of the problem . A solution is needed and it is not to require every car in America to a alcohol testing machine on board. In my career , I have seen the blood alcohol levels go from .15 % BAC to .08% BAC. Punishment increases with each legislative year.Here is a great comment on the problem via Scott Greenfield;

  More importantly, the solution to individual impropriety isn't to hold those who have done no wrong, and wouldn't do wrong, captive.

I agree with Mr. Greenfield. The solution to the problem of drunk driving should be measured to only punish the guilty. I fear that the government's way is to arrest everyone no matter how slight the evidence. Newsday's solution is just make everyone blow. Different folks have different ideas. Newsday's option just does not follow common sense.

 

Can the Police Take a Blood Sample Without a Search Warrant ?

The U.S. Supreme Court agreed to hear a case on whether the police can seize a blood sample of an accused DUI driver based upon exigent circumstances. In Missouri v McNeeley , a police officer took an accused's blood sample without a search warrant. The government's theory was there was an exigent circumstances for the seizure without a warrant because the concentration of alcohol dissipates over time. The Missouri Supreme Court  held the seizure of the blood sample was an unconstitutional search. The U.S.Supreme Court will hear this case in the fall.

The Missouri case is very important to those charged with a drunk driving case here in Tennessee. If the court reverses the Missouri Supreme Court's decision , police officers will be granted the power to take any citizens blood sample without their consent or without a search warrant. Currently , a citizen is allowed to refuse to submit to a breath or blood alcohol test.

it is important on another ground as well. Tennessee currently allows for a forced blood draw on those charged with a second offense DUI or higher. There is no search warrant requirement to seize the blood sample. You must have only been convicted of a prior DUI.  I am unaware if Tennessee's forced blood draw has been challenged yet. It is my belief that the law will be declared unconstitutional at some point. The concept of Tennessee's forced blood draw is not before the Supreme Court.

The real question is whether the courts are going to keep allowing unfettered police intrusion into the lives of the citizens accused of a crime. Tracking someone on a GPS is allowed. Cell phones are not private. Where does the erosion of the Fourth Amendment stop ? It must stop with this series of cases. Sure everyone is against drunk driving . But , at what price do we sacrifice our constitutional protections ?

Your Rights at a DUI Checkpoint in Nashville

My last post was about a DUI checkpoint that was posted on the Metro Nashville Police Department's Facebook page. So , I thought I would post this video on your rights at a DUI checkpoint in Nashville.

Celebrity DUI Mugshot

Here is the celebrity DUI mugshot of Randy Travis. Remember , he is presumed innocent of all charges.

Tennessee Adpots No Refusal Fourth of July

Thanks to our superb receptionist Amber , she gave me the heads up on a news flash in DUI enforcement in Nashville over the Fourth of July holiday. Tennessee has adopted a no refusal holiday in drunk driving cases in several Tennessee counties including Maury and Davidson Counties. The concept of a no refusal weekend is have the police obtain a search warrant in all driving under the influence (DUI) cases. In Tennessee , an accused has a right to refuse a breath or blood alcohol test if suspected or drunk driving.  Once a citizen is arrested for DUI and refuses , the police would get a search warrant to take a blood sample.

Here is the possible scenario. DUI roadblock is set up. A citizen gets stopped at a DUI roadblock and the officers smell alcohol. Field Sobriety Tests are conducted and a DUI arrest is made. A refusal to submit to a breath or blood test is made.It is refused. A judge would be close by or available to review a search warrant and issue the search warrant. The blood is then taken over the accused's consent.

Continue Reading...

Ryan Braun Back in the News

Ryan Braun's drug test case is back in the news. As I was watching ESPN during  lunch today , it was reported that Major League Baseball fired the arbitrator in the Braun drug testing case. I wish that I could do that in my cases . I don't like the judge's ruling. A couple of months later I fire the judge. I wish life was that simple.. MLB was unhappy in his ruling about the chain of custody in the evidence.The arbitrator found that the chain of custody was not established , therefore the results of the drug test were inadmissible in Ryan Braun's suspension hearing.

Chain of Custody is a basic concept in the rules of evidence . The concept of the chain of custody involves laying the basic foundation for the introduction of real evidence. The purpose of the chain of custody rule is to demonstrate that there has been no tampering , loss ,substitution , or mistake with respect to the evidence,

The basic concept recognizes that real evidence may be handled by different people between the time it is gathered and the time the evidence is tested. For example , a blood sample in a DUI is handled by the officer , the person in the evidence room , the Lab Tech at the Tennessee Bureau of Investigation , and the person that tests the blood for alcohol content. If there is a break in the chain the evidence may not be admitted.

In the Braun case , it appears that they could not prove the chain of custody in the case. thus , it was dismissed. The chain of custody is an issue that should be investigated in most DUI cases. It won the case for Ryan Braun.

DUI Checkpoints in Tennessee on St. Patrick's Day

Tomorrow is St. Patrick's Day . Please drink responsibly and take a cab if you go out to a party . The Nashville Tennessean ran a story on the number of DUI roadblocks planned for St. Patrick's day. The Tennessee Highway Patrol plans over 50 DUI checkpoints and drivers license checks over the weekend . Here is a short video on DUI roadblocks.

Continue Reading...

Ashland City Tennessee DUI Law Alert

Tennessee has a uniform driving under the influence (DUI) laws. However , the application varies from jurisdiction to jurisdiction. If you are convicted on DUI in Tennessee , Tennessee Code Annotated 55-10-403(p)(1) provides that a person convicted of a DUI shall report within 30 days to commence the sentence . Generally , you have 30 days to report to serve your sentence .

In the 23rd Judicial District , the court requires a multiple offender to report immediately . If you request to serve your time on weekends , you must first pass a drug test. The 23rd Judicial District is comprised of the following counties in Tennessee ' Cheatham, Dickson , Houston , Stewart , and Humphreys counties . So , make your plans before you enter a plea. The is one good thing for those charged in Ashland City , Tennessee . Work release is available as an option.

Your Rights At A DUI Checkpoint In Tennessee

Here is a video blog on your rights at a DUI checkpoint under Tennessee law. Look for the use of DUI checkpoints or roadblocks around any major holiday. 

Hermtiage Women Charged With Vehicular Homicide

Nate Rau of The Tennessean ran  two stories  about a Hermitage , Tennessee women charged with vehicular homicide . The catch is she was not driving the car in the deadly crash. Her boyfriend was at the wheel . Metro Nashville Police charged her under the theory of  that she was criminally responsible for the vehicular homicide charge while her friend was driving. It is unique legal theory and has been used rarely rarely in the past. . The owner/passenger DUI charge is common in Nashville DUI cases . Typically , someone else drives the car while the owner is a passenger . Driver gets arrested for DUI then so does the owner of the car. In fact , it has statutory authority under T.C.A. 55-10-201.

Criminal responsibility is based upon the simple theory that if I give you some help to commit a crime , I am just as responsible as the person that does he crime. One example is you give me twenty bucks to take you to the bank so you can rob it. Under those facts , I am just as guilty for the bank robbery because I knew what you were going to do. In a vehicular homicide , the knowledge that the driver is going to be involved in a deadly car crash is more remote. In fact , there is no Mens Rea for the crime other than reckless conduct. How can a person anticipate recklessness. here is the jury instruction for criminal responsibility ;

T.P.I. -- CRIM. 3.01

CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER

The defendant(s) [is] [are] criminally responsible as a party to the offense(s) of _____________________________________________________

if the offense(s) [was] [were] committed by the defendant's own conduct, by the conduct of another for which the defendant(s) [is] [are] criminally responsible, or by both.  Each party to the offense may be charged with the commission of the offense.1

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, acting with the culpability required for the offense, the defendant(s) cause(s) or aid(s) an innocent or irresponsible person to engage in conduct prohibited by the definition of the offense.]2

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the defendant(s) solicit(s), direct(s), aid(s), or attempt(s) to aid another person to commit the offense.]3


 

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the defendant(s) fail(s) to make a reasonable effort to prevent commission of the offense.]4 [A defendant who is criminally responsible for an offense may be found guilty not only of that offense, but also for any other offense or offenses committed by another, if you find beyond a reasonable doubt that the other offense or offenses committed were natural and probable consequences of the original offense for which the defendant is found criminally responsible, and that the elements of the other offense or offenses that accompanied the original offense have been proven beyond a reasonable doubt]. [5] [In deciding the criminal responsibility of the defendant, the jury may also take into consideration any evidence offered that the defendant attempted to thwart or withdraw from any of the offenses that followed from the original offense.] [6]

Before you find the defendant(s) guilty of being criminally responsible for said offense(s) committed by the conduct of another, you must find that all the essential elements of said offense(s) have been proven by the state beyond a reasonable doubt.

The problem with the charges against Erin Brown is that it opens the doors for the expansion of what can be considered a criminal act. Can the bartender be charged for selling a beer . How about the store ? How about the Titans after someone leaves a game after buying a beer. One solution is to put more teeth in the dram shop act which puts civil liability on those that furnish alcohol. I doubt that happens because that industry is protected by a horde of influence peddlers. My guess is the state legislature will pass another law that over-criminalizes ones conduct. Right now Ms.Brown's case is going to the Grand Jury. Disclaimer. My opinions are my own . 

Is the Smell of Alcohol Enough Evidence in a DUI Case ?

Most DUI arrest warrants in Tennessee have somewhere in the affidavit that the police officer smelled alcohol . The question is whether the smell of alcohol enough to make a DUI case. Tennessee has held that the smell of alcohol alone is insufficient to establish probable cause to arrest for for driving under the influence. However , the smell of alcohol even if not strong constitutes reasonable suspicion to justify a brief detention to ascertain a driver's level of sobriety . Tennessee courts have held that a detention up to ten minutes was a reasonable time to detain one accused of drunk driving. Once out of the car , the police officer starts to request you to do field sobriety tests which you can refuse. The field sobriety tests becomes the basis to establish probable cause to make the DUI arrest.

Tennessee DUI Law Alert

On January 1 , 2012 a new DUI law comes into effect in Tennessee.  Tennessee Code Annotated 55-10-406(f) expands the circumstances in which a Tennessee law enforcement officer can require a blood alcohol test without the consent of the accused. Tennessee law will allow an officer to require a chemical test to determine the accused's blood alcohol level when the officer has probable cause to believe the motorist has committed a violation of DUI , vehicular homicide by intoxication or aggravated vehicular homicide , and

  1. The suspect was involved in an accident causing injury or death to another ;
  2. The suspect has previously been convicted of DUI , Vehicular Homicide by Intoxication or Aggravated Vehicular Assault ; or
  3. The suspect has a passenger in the car who is a child under the age of 16.

 

Knoxville DUI attorney Steve Oberman has commented on the new law. Here is some of his points. First , the new law does not include any look back period. In Tennessee the state can look back ten years in your history to see if you have a prior DUI conviction in order to try you as a DUI second offender. In the new law , there is no look back period so the police could force a blood draw on a DUI conviction that happened over 20 years ago. Secondly , the new DUI law is specific to Tennessee DUI convictions because it lists the corresponding code sections. So , an out of state conviction may not be used to compel a chemical test. I anticipate this issue will see some litigation.

No one is in favor of drunk driving . Yet the dilemma that is facing Tennesseans is enacting laws that can be applied fairly. How do we as a society balance our constitutional protections ?  How do we deal with the arbitrary laws that are penal  in nature to those charged with a particular crime ?

Well if you are facing these types of charges you must stand your ground . Decide if you want to accept your fate or decide whether the courts will let this arbitrary set of laws be enforced .

Ashland City Tennessee DUI Law Alert

While I was in General Sessions Court in Cheatham County this week , I learned of the District Attorney's new procedure on handling the implied consent component of a Tennessee DUI charge. If a citizen exercises their right to refuse to submit to a breath or blood alcohol test after a police officer has reasonable suspicion to believe one is driving under the influence of alcohol .,  the officer also charges you for a violation of the implied consent charge. For those arrested by the Ashland City Police Department , the Cheatham County Sheriff's Office or the Tennessee Highway Patrol , expect to have a hearing on your first court appearance. In Cheatham County criminal cases , the first court date is an arraignment date . An arraignment date in Cheatham County General Sessions is usually just to enter a plea of guilty or not guilty then it is reset to the arresting officers first court.

Tennessee's law on the timing of the implied consent charge changed recently. Under T.C.A. 55-10-406(a)(4)(A) , a determination of the implied consent violation shall be made at the driver's first appearance or the preliminary hearing in the general sessions court, but no later than the case being bound over to the grand jury. If they force you to have a hearing unprepared , you will probally lose your license while fighting your DUI case.

So what is the solution. Hire a experienced DUI attorney. Fight the case from the beginning. If the officer is not there at the first court date , move to dismiss the violation. Appeal it. There are other ways as well. Fight fire with fire. 

Should You Record Your Conversations With Police ?

 I did not realize an iphone had a voice recorder until this summer. If your questioned by police , should you record your conversation with the police. I did a quick check and there does not appear to be any laws in Tennessee  prohibiting a citizen from tape recording their conversations with police officers . However , some states have laws on the books that make it illegal to record or videotape police officers.

Recently , two different courts have ruled that a citizen has a First Amendment right to record their conversations with police officers . I recently tried a case where the video camera was not able to record the arrest and the field sobriety tests. It boiled down to ones word against another. Video or audio recordings are solid evidence. So , feel free to record the conversations of the police officer during a traffic stop or DUI investigations .

How Private Are Your Medical Records In A Tennessee DUI Case

Florida DUI lawyer Mike Kessler wrote a nice piece recently on why your medical records aren't so private . Under Tennessee law , your medical records aren't  private  at all. Most people have the belief that your medical records are private and can't be disclosed without your permission. Wrong . A federal law commonly known as HIPPA  establishes some federal laws about disclosure. However , there is an exception for law enforcement purposes . So , the District Attorney's office can issue subpoenas for your medical records for a grand jury proceeding or maybe at trial. Also , there is no doctor-patient privilege currently under Tennessee law.

One thing can be argued is that there is a common law duty that may apply. Right now there is no protection of the government from getting your medical records are using them against you. Maybe the Tennessee State Legislature will act to enforce a citizen's right of privacy rather than allowing guns in bars.

Curry Todd's First Appearance On Nashville's DUI Docket

Tennessee State Representative Curry Todd made his first appearance in a Nashville court room yesterday. Nothing happened and the case was reset.  Representative Todd was charged with driving under the influence , possession of a handgun under the influence of alcohol , and a violation of the implied consent law.

The reason I am commenting on his court appearance is to explain what happens at the initial appearance on a criminal charge in Nashville. After someone is released on a bail bond or pre-trial release , a court date is set on a docket. Most court dates are set at 1:00 P.M. The purpose of this docket is to determine if some criminal cases can be settled with the issuing of any subpoenas. Your attorney and the assistant district attorney meet to discus the case. If the case can't be settled the case is reset to a trial docket . At the trial docket , the witnesses will be subpoenaed . Plea bargain discussions will continue in efforts to try to come to some agreement on the case. If the case can't be settled , a trial or preliminary hearing will be held in most cases .

The bottom line is the initial court appearance in Nashville is not that big a deal. You should have a lawyer by that time . Usually , the good attorneys try to speak with the assistant district attorney beforehand to discuss the case. Sometimes , the attorney will continue the case beforehand . However , one judge does require you to be present at the afternoon docket. One key thing to remember . Don't get disappointed if nothing happens that day. Sometimes the assistant district attorney may not have all the information they need in the case to make a decision.

My question is how did Mr. Todd vote on the harsher implied consent charge ? It appears he exercised his right not to take the breath or blood alcohol test.

Tennessee State Legislator Charged With DUI In Nashville

Jeff Woods of the Nashville Scene broke the story of Curry Todd's DUI arrest in Nashville. Mr. Curry was the moving force behind the controversial bill to allow guns in bars . During the DUI investigation , a handgun was found. You can review his warrants here . Mr. Todd was charged with driving under the influence of alcohol , possession of a handgun under the influence of alcohol , and a violation of the implied consent law. Mr. Curry did not want to take a breath alcohol test after the police officer requested Mr. Curry to submit to the test.

There area a couple of points here. Don't carry a pistol in a holster while you are under the influence of alcohol . It makes matters worse. Your booking photo can be used as evidence. judging from his booking photo his eyes are almost closed.  One thing that is critical in his defense is the traffic stop. It would be interesting to note why Mr. Todd was stopped by the police. The arrest warrant merely indicates he was stopped for a traffic violation. It does not articulate the precise reason. One of the best defenses to any driving under the influence case is whether the traffic stop was valid.

Is Your Window Tint Too Dark ?

                   

One way to avoid being stopped in Nashville for either a DUI offense or a drug offense is to remove the window tint on your car.  Metro Nashville Police can stop a car or truck for a  traffic violation. The window tint under Tennessee Code Annotated 55-9-107 provides that it must have a visible light transmittance of less than 35 %. So buy sunglasses and remove the window tint. a violation of Tennessee's window tint law gives the police the right to stop your car.

The Use of Constables in Sumner County Tennessee

I see some strange things in the courtroom . Today in Gallatin , Tennessee was no exception. As I was waiting for my case to be called . I watched a DUI trial that involved a constable . No assistant district attorney and the defendant represented himself. The arrest was made by a constable. I thought the role of a constable was just to serve process. It is outdated in most counties except Sumner County. The DUI case involved a traffic stop , field sobriety tests , and a refusal to take the blood test.  The result was a DUI conviction. I was still baffled by the arrest of by the constable.

I learned that the constable in Sumner County Tennessee routinely makes arrests. Under Tennessee Code annotated 8-10-111 it sets forth the duties of a constable. Nowhere is the duty to arrest listed. Under Tennessee Code Annotated 8-10-204 gives them the power of arrest  . It was interesting to read about their training from the Tennessee Constable Association

 Here is my problem . The constables do not get any pay . I was advised they get paid by the conviction . So once the court costs are paid they get a cut . In Sumner County , a citation gets them $27.00 and a DUI or other criminal charge pockets them $42.00. It is an incentive for abuse and  questionable arrests. Law enforcement officers are trained . Tax dollars pay them . Do we really need constable roaming the streets of Tennessee ?

Response to The Tennessean Editorial

I am just reentering the legal world after spending the last three weeks at the Trial Lawyers College in Dubois , Wyoming being tutored by Gerry Spence . As I was reading the paper this morning  , I read the the editorial about a tragic vehicular homicide that happened in Lebanon , Tennessee. The facts of the case are horrendous. The driver was convicted in April.Picked up a new DUI charge  served with a probation violation , and out on bond when the deadly crash happened.

 When tragedy happens , community uproar occurs. Editorials on the issue addressed the case. One of the columnists took direct aim that the DUI laws are mocked by criminal defense lawyers in this state. As a whole most attorneys that defend a citizens guaranteed constitutional rights do not mock our laws. A DUI charge is serious business. Tennessee has some of the harshest DUI laws on the books.

Currently , Tennessee has some of the following DUI laws ;

  • Mandatory minimum jail time.
  • Bond conditions on repeat offenders.
  • A host of machines deployed by the courts such as ignition interlock devices , electronic monitoring , and SCRAM devices.
  • No alternative plea agreements in order to expunge a citizen's record if convicted.

One problem facing Tennesseans accused of drunk driving is that the U.S. Constitution's guarantee of being presumed innocent does not apply to DUI cases.  Further , the science used in the prosecution of DUI cases is suspect .Currently , there is no duplicate testing on breath or blood alcohol samples . It appears the Tennessee Bureau of Investigation is going to adopt a new breath test machine for use . The machine had numerous problems in California that resulted in DUI cases being dismissed. Yet , it appears that it will be used here.

Everyone agrees drunk driving is a problem . However , do we suspend a citizen's rights to a fair trial ?  Hold them in jail on an excessive bail bond ?  Deny them their rights ? The country is under siege from attacks on all fronts on a citizen's constitutional rights . That's the issue that bothers lawyers and the citizen accused.

 

New Tennessee Law On Mandatory License Revocation

 

The punishment for multiple DUI offenders got tougher on July 1 , 2011  for those arrested in Tennessee . The new DUI law increase the mandatory license revocation period for a DUI conviction of a DUI 3rd offense from 3 to 10 years to 6 to 10 years . It also amends the revocation period on a DUI 4th offense conviction from 5 years to 8 years.

Forensic Chromatography

I have not posted for a while due to attending a fantastic class sponsored by the American Chemical Society . Recently , I joined select  DUI lawyers from across the country in learning about forensic chromatography .Gas chromatography is the science behind blood alcohol testing. The class was 40 hours and included both theory and a hands on experience working with the machines.

The class covered several topics in the field along with lab work .Here is some of the topics ;

  • Gas Chromatography Theory
  • Headspace Gas Chromatography
  • Capillary Columns
  • Detectors
  • Resolution
  • Quantitative Analysis
  • Troubleshooting and Maintenance

The class has given me a greater understanding of the science and methods of blood alcohol testing . I highly recommend the class for DUI defense lawyers .

I would like to thank the Dr. Harold McNair , Dr. Lee polite , Attorney Justin McShane , and Attorney Josh Lee for a great learning experience.

Science or lack of the basic scientific method should govern criminal cases and the search for just evidence . Science knows no sides and DUI defense is being increasingly about the science.

As my friend Justice McShane says " Go Science".

 

Your Right to an Independant Blood Sample

           

Nashville's DUI officers rely heavily on the breath alcohol test . If you submit to a breath alcohol test , do you have a right to an independent test blood test for alcohol or drug content. ?

Yes. Tennessee Code Annotated 55-10-410 mandates that a person charged with driving under the influence " shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of that person's own expense."

Now what happens if you request a blood sample and they refused to give you an independent sample or they lost the sample ?

Two Tennessee Court of Appeal cases have held that failure to provide an independent blood alcohol test is a violation of the defendant's right to due process of law . In State of Tennessee v.Geselbracht , the court held that suppressing the blood alcohol test was not a sufficient remedy and that the appropriate remedy is a dismissal of the charges .

If you decide to take a breath alcohol test , always demand an independent test.

 

 

 

 

 

Nashville DUI Officer Charged For Drug Charges

Richard Wilson of the Nashville Metro Police Department was indicted by a Federal Grand Jury for allegations that he was involved in distributing cocaine , Mr. Wilson has been decommissioned as a police officer pending the outcome of his criminal charges. Mr. Wilson has been on the DUI Enforcement Unit of the Nashville Police Department for the last year an a half.

My guess his pending DUI cases may be impacted by his arrest.

One More Reason To Refuse The Breath Test In Nashville

Would you buy a new car without a owner's manual ?  Would you fly in a plane without the pilot knowing something about the plane ? Here is one reason you should not take the test . There is no owner's manual for the breath test machine . Members of the Tennessee Bureau of Investigation (TBI) have testified there is no owner's manual or operators manual for the EC/IR II which is the breath test machine used in Tennessee DUI cases. Wonder why ? So do I.

Forensic science does not pick sides.Science is absolute.Science should be an open book on the methodology and how we get the result. Why am I ranting about science when the title is another reason not to take the breath test. It's simple the TBI does not want to face any attack on the unreliability of the or the problems with the breath alcohol test.

 

 

Video on Walk and Turn Test

The standardized field sobriety tests established by The National Highway Safety and Traffic Administration contains three tests. On this video , I am discussing the walk and turn test. Almost all police officers in Nashville,Tn. , Franklin , Tn. and all Tennessee Counties utilize this test in DUI investigations.

The police are looking for the following clues or indicators :

  • Cannot keep balance while listening to the instructions.
  • Starts before the instructions are finished.
  • Stops while walking.
  • Does not touch heel-to-toe.
  • Steps off line.
  • Uses arms to balance.
  • Improper turn.
  • Incorrect number of steps.

If you exhibit two are more clues , the original research provides there is a 685 chance you are over the legal limit of alcohol in your system.

Remember field sobriety tests are optional in Tennessee and you do not have to submit to them.

 

Should You Hire A General Sessions Lawyer ?

As I was walking to the criminal courthouse in Gallatin , Tennessee for a motion hearing , I noticed a new sign for a lawyer on the corner . The sign advertised General Sessions Lawyer .  What is a General Sessions lawyer ? Under Tennessee rules of specialization , Tennessee does not recognize such certification. Then , I understood .

See , the sign is hoping to attract those accused of a crime or DUI in Sumner County , Tennessee. A poor soul might walk into his office going to the General Sessions Court . To understand what a General Sessions lawyer is one must understand Tennessee's court system .

Criminal offenses in Tennessee are heard in three trial courts . They are Juvenile court , General Sessions court , and Criminal or Circuit court . A General Sessions Court has jurisdiction of misdemeanors and can only hear preliminary hearings on felony cases . You are not entitled to a trial by jury in General Sessions.

 

Most criminal  cases start in General Sessions Court  in Tennessee . Some lawyers don't want to venture out of General sessions Court . . Should you hire a General Sessions lawyer ? Probably not

Here's why :

  • Are they a Dump Truck Lawyer ? By that , I mean a lawyer that is just going to settle your case with whatever the Assistant District Attorney is offering . Tomorrow , I will post on what is a dump truck lawyer .
  • You might not get the best plea bargain offer because the D.A. knows they won't take one to trial.
  • Do they give a damn about you or your case or do they just want a quick attorney's fee ?
  • Do they try cases or just go to the back room and then tell you I can't help you after their promises ?
  • Do they know the basic defenses of a criminal case ?
  • Have they ever had pretrial hearing ?
  • Have they taken any specialized continuing legal education classes on DUI or criminal law ?
  • Are they a  member of any criminal defense lawyers groups ? If they won't pay $175.00 for dues to stay up to date on the law do they deserve your hard earned money to defend you from going to jail ?

You owe it to yourself to educate yourself on getting the best  criminal defense lawyer in Sumner County , Tennessee for your case .

Hiring a General Sessions lawyer is like hiring a doctor who is only going to take your temperature and give you an aspirin . They don't have the cure or will they even try .

 

What is the Alcohol Limit in Tennessee ?

My goal for this blog is to provide information about DUI cases and criminal cases in Tennessee . I am starting a new category today on DUI FAQ.

What is the legal limit of alcohol under Tennessee's DUI Laws ?

Tennessee Code Annotated 55-10-401 (a) (2) provides it is unlawful for any person to drive or be in physical control of a motor vehicle while the alcohol concentration in the person's blood or breath is eight-hundredths of one percent (.08 %) or more.

My First Guest Post

I hope everyone had a great Easter weekend . Now , it's Monday and back to work . Today , I am pleased to have my first guest post by Pennsylvania DUI lawyer Justin McShane . I met Attorney McShane in 2009 at an intense DUI seminar on blood and breath alcohol forensic issues . Justin has become a superstar on the national stage teaching lawyers across the country on the truth about forensic science . Justin was kind to provide today's post. Here it is.

 

When you are charged with a DUI or criminal offense, it is perfectly ok to be selfish. In fact, you must be in order to survive it. You must become educated. You cannot simply hope or wish that it will all go away. You need to find the best option to maximize your chances of surviving this trying time in your life.

The role of the criminal defense attorney is a difficult one. Oftentimes, people take a look at criminal defense attorneys and especially ones who specialize in DUI defense and like to point the finger wagging it at us and ask, “How could you do that (meaning those who are accused of a crime or DUI)?”

And you know what, that is the key question that you should ask any prospective attorney. It takes guts to be a criminal defense attorney and especially if you specialize in DUI defense.

The answer will help you distinguish between someone you should trust with the most important event that is going on in you and your family’s life.

If they have a “canned” answer, then that is likely to be the type of defense that you are going to get. If you get a very thought-out and thoughtful one, then you should look further.

When you look further, I suggest that you look at the person’s education. One way that you can tell whether or not a criminal defense attorney specializing in DUI defense is up the par is to determine what sort of education they have. This doesn’t just mean his or her brick-and-mortar type of education, but rather that attorney’s extracurricular and post-graduate education in the wall. In fact, it is the education that the lawyer seeks and completes after passing the bar that will enable him or her to be truly effective on your behalf. Remember, it is relatively very easy to become a licensed attorney, but the true education of a trial attorney comes after he or she passes the bar. Therefore it is essential for you to look well past the simple fact that someone is a licensed attorney and to take a look at all of the experienced an attorney has accumulated. This means not only in terms of Continuing Legal Education (CLE’s), but also in the courtroom and in actual trial. When was the last time the attorney went to trial? How many CLE’s has she or he completed? Were the CLE’s national or local ones? Is it more than the bare minimum required? Does he or she teach at CLE’s? If so, what topics and to whom? Does he or she organize CLE’s? Has he or she kept their CLE’s and their learning to one specific area or is he or she a generalist?

An attorney who does not continue to learn and does not further his or her education is not worth very much. The same is true with a generalist. I suggest that you want a specialist.

Be sure to ask and demand to see the qualifications of your attorney. Not all attorneys are the same. Therefore, it is up to you and to you alone to be selfish and to become an educated consumer of attorneys. One of the smartest things that you can do is insist on a resume of your attorney. An attorney, who doesn't have a resume of some sort, in terms the extracurricular education that he or she has received, is probably someone that you should steer away from.

Knowledge is evolutionary and at the end of the day it is only the most current attorneys who continue to learn and who continue to keep up on the ever expanding knowledge base in DUI who will help you maximize your chances of getting an acceptable result at the end of the day.

Another key consideration to think about is whether or not that person is willing to apply that knowledge to your particular case. This brings us back to that great question that started this post: “how could you do that (meaning those who are accused of a crime or DUI)?” It is indeed true that knowledge without guts to apply it is a worthless characteristic. Therefore, you are looking for the attorney who has a the reputation, the knowledge, and the experience to maximize your chances of obtaining an acceptable result.

At the end of your litigation, this requires not only someone who has the knowledge, who has the education, and who has the experience to truly make a difference, but also, most importantly has to be willing to put it “all on the line” for YOU in YOUR case. To be a warhorse and not just a show horse. You have to be selfish in this regard. After all, this is about maintaining your life and your lifestyle.

In conclusion, the meaningful defense of a motorist among us who has been accused of a DUI offense requires specialized training, knowledge, experience and guts. These characteristics mean the difference that you must look for an attorney.

Continue Reading...

Basic Concepts on Gas Chromatography

Last week I attended one of the best conferences in America dealing with forensic science issues in defending a drunk driving case . Pennsylvania DUI attorney Justin McShane gave a fantastic presentation on gas chromatography .Gas chromatography is the type of science used by the Tennessee Bureau of Investigation  to determine the blood alcohol level . Here is a article from Wake Forrest university Department of Chemistry on the subject .

In addressing ways to combat the blood alcohol result  , Attorney McShane suggested some critical issues.

  • A great DUI lawyer should have a basic understanding of the  working terminology of the science of head space gas chromatography.
  • One must be able to review a chromatogram to determine if there are any problems with the blood alcohol estimate.
  • The separation matrix must be identified.

Most lawyers in Tennessee give up once they discover the results of a blood alcohol test . Over the course of my practice , I discovered that we buy in to the belief that some science is foolproof . Remember , lab work is conducted by normal human beings who put stuff in a machine , Blood test results are not infallible.. These lab folks are not experts only machine operators. Do any Google search for issues in the forensic lab and you will discover mistakes and fraud across the country .

Here's some questions you can ask  when you are looking to hire a Tennessee DUI Lawyer .

  • Can you read a gas chromatogram ?
  • What machine do they use to test blood alcohol at the TBI crime lab in Nashville ?

Tennessee DUI cases are getting tougher every day. Don't want to plead as charged fight back.

 

 

Mastering Scientific Evidence in Drunk Driving Cases

The Nashville Criminal Law Report is  heading off to a seminar on Mastering Scientific Evidence sponsored by the National College of DUI Defense and the Texas Criminal Defense Lawyers Association

Here is some of the topics ;

  • Fundamentals of Gas Chromatography
  • Lab Issues in  Blood Alcohol Testing
  • Drugs in Blood
  • Blood Alcohol Discovery
  • Retrograde Extrapolation of Blood Alcohol Tests

Science has taken over in being a critical factor in defending Tennessee DUI cases . Make sure you check out  your potential lawyer's understanding of science and whether they attend these cutting edge conferences.

I will be posting a live feed on Twitter of the conference . Please follow me on Twitter if you want the updates.

 

 

Why Do Blood Alcohol Machines Need To Be Calibrated ?

Pennsylvania DUI attorney Justin McShane has moved to the front of criminal defense attorneys in using forensic science to attack the state's case.  Here is a short video he produced illustrating the need to have the machine calibrated . Justin also writes a blog on forensic science issues .His commentary is on target as it concerns the Tennessee Bureau of Investigation toxicology unit .In the past , TBI has run only one blood alcohol test on all samples while good science requires two samples . Machines do need to be calibrated .

On another note , Attorney McShane has organized a training session on gas chromatography in June of this year . I am pleased to announce I have been accepted to attend the program . More in June on blood alcohol testing . I hope you find the video helpful.

Why Are You being Charged With Two Drunk Driving Laws

 One frequently asked question about Tennessee drunk driving laws is why am I being charged with two violations . Most police officers only charge one drunk driving violation in the original arrest warrant . Once the case is presented to the Grand Jury , the prosecutors often add an additional charge if a blood or breath test is going to be offered into evidence.

First , you are charged with driving ' Under the Influence" . It is found under Tennessee Code Annotated 55-10-401 (a)(1) . Under the influence is a broad term to encompass when a person's ability to operate a car , truck , or motorcycle is impaired . Last year the legal definition changed and I expect  it will be changed again this year .

Secondly , you can be charged under the " DUI Per Se " law. You are guilty of drunk driving if your blood or breath alcohol is .08% or higher .. So the state will try to convict someone on either legal theory . One good thing is you can't be convicted of both and receive two sentences . The convictions merge into one conviction by operation of law .

So , that's the short answer to two charges . If the jury does not trust the chemical test or the basic facts of the case . The jury or the judge has an out for a guilty verdict .

A Lot of Burping Convicts Judge of DUI

             

George Korpita , a former New Jersey Judge , conviction for drunk driving has been upheld on appeal. According to the facts of the case , Judge Korpita burped 78 times while waiting to do the breath alcohol test . After , all those burps , the cop arrested him for drunk driving and violating the implied consent law .why is this case important in Tennessee DUI cases /

The former judge knew that the burping would prohibit a breath alcohol sample from being taken. Tennessee DUI laws require that there be no burping or belching for 20 minutes prior to the breath alcohol test being given for it to be admissible into evidence. The judge knew the law and tried to take advantage of it .

How does it help you ? Think back to the best test and think about whether you burped before the test . Some people might experience a micro burp. You know us Southerners . We are too polite to let a burp rip. We would try to suppress it . Belching and burping are defenses to a breath alcohol result in Nashville DUI cases.

Sumner County Sheriff's Office Using New Tool in DUI Cases

                  

I learned something new today in General Sessions Court for Sumner County in Gallatin today. Sumner County Sheriff's deputies have some new tools at their disposal in prosecuting drunk driving cases . Deputies now have flashlight cameras to use in DUI enforcement.These cameras film most parts of the DUI investigation. The cameras have been in use in other parts of the country for over a year.

As I sat down  to watch the videos of the arrest and the field sobriety tests , I was shocked as to the quality of the video.There were pluses and minuses of the flashlight camera.Plus , it showed in  detail whether someone stepped off line on the walk and turn or other details of the field sobriety test.Minuses , it failed to capture the totality of the police interaction..

It's my understanding Sumner County Sheriff''s Department and the Gallatin , Tennessee Police Department have the cameras at present time in Sumner County.My point is that video helps the accused in most cases.Today , the case was reduced to a lessor charge based on the video.

I am showing my age, but there was a T.V. show I remember called " Candid Camera".There was a line in the show " Smile Your On Candid Camera". Remember that if your stopped for a DUI in Sumner County , Tennessee.

 

Here is a Video on a DUI Attorney Interview

A fellow  DUI attorney send me the link of this video.While it is funny from an attorney's point of view.It does illustrate some common questions that come up in a drunk driving  case.One key point is to be honest with the client.If the case has few defenses , be blunt and totally upfront.

Tennessee's New DUI Bail Bond Law

                                   

I had my first experience dealing with Tennessee's new bail bond law for those accused of DUI second , DUI third, and felony DUI offenses. The new law may keep those accused of these crimes from being released on bond.In Nashville,Tn., once a person is arrested and can't make bond their case is placed on the review docket .The review docket is usually held in courtroom 3C in the A.A. Birch Building.We filed a motion to set bond.The court granted the bond and released my client with the condition that he have an ignition interlock device installed.

I expect a lot more in the coming weeks on this issue.I am of the opinion this law will be challenged on constitutional grounds.

Lindsay Lohan Released From Rehab

                                 

Lindsay Lohan was released early from the Betty Ford  Center after a 90 day stint in  rehab.Lohan has had major difficulty with her probation and repeated problems with alcohol.I wish her the best  in her recovery. However, Ms. Lohan's problems illustrate some issues that arise in Tennessee drunk driving cases (DUI).

One question frequently asked question is whether one should go to rehab after they have been arrested for DUI.Will it help my case ? Can I get jail credit for time I spend in alcohol treatment ? Well the bottom line answer is maybe.  

If you were convicted of a DUI second offense charge in Tennessee , you can get up to 28 days jail credit for inpatient alcohol or substance abuse treatment.Warning.Some jurisdictions will not allow jail credit prejudgment..So you go to alcohol treatment before you settle the case. Some District Attorneys will not give you credit.Tennessee case law supports their position.However , Davidson County DUI prosecutors are more enlightened and will normally give credit for inpatient treatment. I think this is the better course in that it encourages those to seek help for a substance abuse problem.

One other lesson to learn from Ms. Lohan is to follow the rules of probation to the letter. From my limited knowledge of the case, she did everything possible to violate her probation.If you violate your DUI probation , it is possible the entire sentence will be served.

Warning before you check in to rehab consult with your DUI lawyer.

Avoid A DUI Arrest This New Year's Eve

                                               

One way to avoid a drunk driving arrest on New Year's Eve is to call  sober ride.The 26th annual Sober Ride Project begins at 10:00 P.M. and lasts until 2:A.M. on New Year's Eve.Each year about 150 Davidson County Sheriff's Office  employees will give up their New Year to provide safe and sober rides.Sheriff Darren Hall provides a great service to the community.

Here's how to arrange a ride;

  • Call 862-RIDE or 862-7433
  • Go to one of two bus stops set up for the rides.The corner of Second Avenue and Commerce Street or near the Music City Star train station on First Avenue.

Have a Happy and Safe New Years.

 

The Progressive Effects of Alcohol

                                         

This could be one of the severe effects of alcohol on the human body.However , I ran across a chart which spells out the effects of alcohol on the human body.

Progressive effects of alcohol
BAC (% by vol.) Behavior Impairment
0.010–0.029
  • Average individual appears
    normal
  • Subtle effects that can be
    detected with special tests
0.030–0.059
  • Mild euphoria
  • Sense of well-being
  • Relaxation
  • Joyousness
  • Talkativeness
  • Decreased inhibition
  • Concentration
0.06–0.10
  • Reasoning
  • Depth perception
  • Peripheral vision
  • Glare recovery
0.11–0.20
  • Over-expression
  • Emotional swings
  • Angriness or sadness
  • Boisterousness
  • SuperHuman Feeling
  • Decreased Libido
  • Reflexes
  • Reaction time
  • Gross motor control
  • Staggering
  • Slurred speech
0.21–0.29
  • Stupor
  • Loss of understanding
  • Impaired sensations
  • Severe motor impairment
  • Loss of consciousness
  • Memory
0.30–0.39
≥0.40
  • General lack of behavior
  • Unconsciousness
  • Death
  • Breathing
  • Heart rate
  •  
  •  

Under Tennessee's drunk driving laws , the blood alcohol is .08 blood alcohol concentration.If you have a blood alcohol test of .08 or higher you can be found guilty of DUI.

DUI Trial Tip of the Day

                                       

My trial tip of the day is to have a single or limited theory of the case. In a drunk driving (DUI) case , there are many defense theories that may be available.Pick the strongest and stay with it. Here is an example.Today , I had a case where there were two key issues.The strongest point was the issue of physical control of an automobile.So  instead of fighting the high breath test, I  focused on whether the client was in physical control of the car.By the way , my commentary on the physical control rule under Tennessee law is that it needs improvement.Under Tennessee law we are punishing a driver who decided they shouldn't drive by sleeping in the car then arresting them.

If it is a breath test case and your defense is acid reflux , talk about acid reflux and that a breath test machine may read the result in error.If it is a disconnect case , talk about that the physical manifestations not equaling the blood alcohol test.Pick the defense and show how the facts fit in that single category.A shot gun is a good weapon to shoot ducks , quail and friends of Dick Cheney.It is not a good weapon to attack a DUI case.You need a laser focus.

 

What to Say to the Police During a DUI Stop

                                          

During a DUI traffic stop , the first thing a police officer asks is " Have you had anything to drink tonight ?"  Since we were young we have been taught to cooperate with the police.However, you can't talk your way out of a drunk driving charge in this day and time.

What's the correct response ?

  1. Do not admit to drinking.
  2. If the police officer continues to ask the question , ask if you are being investigated for a DUI or under arrest.
  3. Do not admit to any consumption of alcohol at any time of the evening.
  4. Do not admit to drinking certain drinks or the number of beers or drinks
  5. The best answer is" Officer I decline to answer any questions about alcohol."
  6. Ask to speak to your attorney.

The U.S. Constitution gave you a right that you don't have to answer any questions by the police.Exercise that right.You can't talk your way out of the DUI.Once an officer gets an answer that you consumed or drank alcohol . probable cause has been established to start a full blown DUI investigation.

Once you make any statements of alcohol use the district attorneys can question you about those statements. An admission of five beers and a couple of shots equals a DUI conviction.

 

Can You Get a fair Trial in a DUI Case

I ran across this video from California DUI lawyer Lawrence Taylor. His video was can you get a fair trial in a DUI case. I thought the video had some great points and is worth sharing here. 

 

Blood Alcohol Issues In Tennessee DUI Cases

Recently , I invited Pennsylvania DUI lawyer Justin McShane to speak at  TACDL's DUI seminar that I organize.His presentation was lights out.Justin created a video on explaining some critical issues in blood alcohol testing. For any lawyer or person accused of DUI I would highly recommend you watching the video.It shows some problems that may occur in the forensic crime lab.Justin writes a blog about forensic science.The title is www.thetruthaboutforensicscience.com.

How Does A Scram device Work

Yesterday , I felt like an old circuit riding lawyer.First stop was the courthouse in Shelbyville ,Tennessee.Next stop was General Sessions in Gallatin , Tennessee. In the office today , so I thought I would comment about the Scram device. A video on how the scram device works is the featured video on this post. However Pennsylvania DUI lawyer Justin McShane wrote a post on his blog about the Scram device. In a nutshell , the machine is designed to detect alcohol from the skin.Lindsay Lohan is the most famous of the Scram users. Here is a picture of her wearing it in a bikini no less.

Tennessee's new and improved DUI laws go into effect in 2011. Expect to see the use of the Scram device increase in dramatic proportions. I would suggest reading Michigan DUI lawyer  Patrick Barone's article on the scram device.Mr. Barone discusses the limitations of the alcohol monitoring device which I intend to follow up on the a future post. The price of a DUI conviction is going up. A great DUI defense may get you out of what Ms. Lohan experienced.

 

The Admissibilty of Breath Tests Evidence in Tennessee DUI Prosecutions

                                           

I was reading an article today by Mark Fulks of the Tennessee Attorneys General's Office on his thoughts of the Confrontation Clause and DUI evidence. Mr Fulks makes an argument that DUI evidence such as the breath test printout and the breath test machine calibration certificate does not fall under the Confrontation Clause as set out in Crawford v. Washington and Melendez-Diaz .Crawford identified when evidence was testimonial which triggered a Confrontation Clause analysis.Fulks points out the calibration certificates should be admissible because they are not testimonial in nature.

Respectfully , I disagree.

 

 

In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the Tennessee Supreme Court set forth

the proper “foundation to be laid for the admission of evidentiary breath tester results.” Id. at 416.

The court held that a testing officer must be able to testify

(1) that the tests were performed in accordance with the standards and operating

procedure promulgated by the forensic services division of the Tennessee Bureau of

Investigation, (2) that he was certified in accordance with those standards, (3) that the

evidentiary breath testing instrument was certified by the forensic services division,

was tested regularly for accuracy and was working properly when the breath test was

performed, (4) that the motorist was observed for the requisite 20 minutes prior to the

test, and during this period, he did not have foreign matter in his mouth, did not

consume any alcoholic beverage, smoke, or regurgitate, (5) . . . . evidence that he

followed the prescribed operational procedure, and (6) be able to identify the printout

record offered in evidence as the result of the test given to the person tested.

 

Here's the point.Sensing requires the machine be tested for accuracy. The 90 day accuracy checks are not routine maintenance , but are conducted to comply with the holding in Sensing when the evidentiary threshold was lowered to not require expert testimony by police officers in DUI breath test cases.

Right now there is no clear decision , however the U.S. Supreme Court is taking up another Confrontation Clause up this term. Stay tuned.

Medical Defenses in Nashville, Tennessee DUI Cases

One of the first things I normally cover with a client is to ask about certain medical issues.Medical issues are  a great defense in drunk driving  (DUI) cases.

First , medical conditions effect the standardized field sobriety tests. According to the National Highway Traffic Safety Administration ( NHSTA)  2006 manual people with back leg or inner ear problems have difficulty performing the test.

Secondly , diabetes and acid reflux can cause false readings in the breath test machine.

This video discusses the medical issues in a DUI testing report used by Nashville police officers.

Remember medical issues are important in defending your DUI case.

Field Sobriety Tests

One of the basic tools in DUI cases in Nashville , Franklin , And Gallatin are the Standardized Field Sobriety Tests. What is the definition ?

Standardized Field Sobriety Tests are a battery of three tests , Horizontal Gaze Nystagmus ,Walk and Turn , and One Leg Stand , administered and evaluated in a standardized manner to obtain validated indicators of impairment based research by the National Highway Traffic  and safety Administration. (NHSTA).

By the way , the photo above is not how you do it correctly. This guy is going to jail.

Drugged Driving In Nashville

The Tennessean ran a story recently on drugged driving in Tennessee.Here are some take away facts from the story;

  • The Tennessee District Attorneys Conference will ask state lawmakers to strengthen DUI laws to make it easier to convict drugged drivers.
  • Prescription drugs have grown to the second most abused drug in the country after marijuana according to the 2008 National Survey on Drug Use and Health.
  • A 2007 study by the National Highway Safety Administration (NHSTA) reports that 3.9 % of weekend drivers tested positive for medications such as Loratab,Hydrocodone,Soma,Xanax,and Valium.
  • One proposal being pushed is allowing officers to take a check swab drug test at roadside.
  • Secondly , there may be an effort to take away the right of citizens to refuse a blood or breath test.

Also , the article states the need for more drug recognition experts. However , it appears that science is not been studied in depth.The same folks that did the NHSTA field sobriety studies also studied Drug Recognition Expert  (DRE)  procedures also performed a study on DRE . It appears that DRE is not the magic bullet to detect the presence of drugs .

More troubling is the move in to lawmaking by the Tennessee District Attorneys Conference. It appears they will be actively lobbying the Tennessee State legislature this coming session. It appears they have moved their focus to make convictions easier.It appears it is another attack on a citizens right not to be compelled to give evidence against one selves and a move for a zero tolerance of alcohol and drugs on the road. Nashville criminal lawyer David Brandon commented  that these proposed laws may encourage police officers to abuse their powers against drivers using their medications legitimately.

Who's at the root at the problem. Doctors that over prescribe and pain management clinics that write a prescription to anyone with no consequences from the law.

 

 

What is a Reckless Endangerment Charge Under Tennessee Law

 Tennessee Driving Under The Influence (DUI)  cases does not have a lesser included offense or lesser charge under Tennessee criminal law.Technically , one is either found guilty or innocent at trial. However , some jurisdictions may offer plea bargains to other offenses rather than a DUI.  DUI cases in Murfreesboro , Tn. , La Vergne , Tn. , Smyrna , Tn. , Rutherford County and Cannon County are handled by the District Attorney's office for the 16th  Judicial District Those assistant district attorneys  sometimes offer a plea bargain of DUI cases to reckless endangerment.

What is reckless endangerment ? Here's the legal definition ;

39-13-103. Reckless endangerment. —

 
 
 

     
 
 

(a)  A person commits an offense who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury.

 
 
 
     
 
 

(b)  Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.

So , what does it mean ?

A plea  to a misdemeanor  reckless endangerment carries a punishment up to 11 months and 29 days in jail and a fine up to $2500.00. The big issue is that it puts 8 points on your drivers license.

So is a plea to reckless endangerment in your best interest ? It depends on the facts of the case. Make sure you get a complete case review of your Tennessee DUI case.

 

 

 

 

 

Should Ask Questions on Hiring a Nashville DUI Lawyer

    Hiring a Nashville ,Tn. DUI lawyer can be tough. After you get out of jail , your mailbox has more letters from lawyers than you get birthday cards.Some of these lawyers take your money , meet you at the courthouse , and take whatever the assistant district attorney is offering.How do you decide what drunk driving lawyer is right for you ?

Here's a list of should ask questions (SAQ) on Nashville DUI cases that involve a breath alcohol test ;

  1. How does the breath alcohol machine work ?
  2. Have you ever filed a motion to suppress the results of a breath alcohol test ?
  3. Any success on suppressing a breath test result ?
  4. Do you have any specialized training on the breath alcohol machine used in Tennessee ?
  5. Where and how much ?
  6. Do I have any medical defenses to the breath test result ?
  7. How do you plan to deal with the breath test result ?

 

So ask these questions when meeting with a DUI lawyer.

The End Of The Good Ole Boy Lawyer

I got a call today about a DUI case in Maury County Tennessee. I take tough DUI cases in most Tennessee counties.However , the question was did I know everybody like the clerk , the assistant district attorney , or the court personnel.Since  I don't have cases there on a routine basis , the answer was no.So , do you need to hire a good ole boy to avoid a DUI conviction ?

DUI defense is getting tougher each year in Tennessee.Just look at the new four laws that will be going into effect in 2011 . The good ole boy defense is my client is a good guy or gal. Never been in trouble and needs a break. Everyone of my clients is a good person , but how does that convince an assistant district attorney to reduce a  DUI charge. It doesn't. Most jurisdictions in Tennessee are cracking the whip on DUI prosecutions with some having a no reduction policy Like Dickson County and Cheatham county.

You defend the cases by knowing the  search and seizure law , the science of  blood or breath alcohol testing , the workings of field sobriety tests and an aggressive motion practice. if it's a blood test ask the good ole boy about head space gas chromatography testing.

Gone are the days of 'My client is a great guy " . That defense was gone when Andy left Mayberry.

More Medical Defenses to Nashville DUI Breath Test Cases

 

 

Another medical defense to Nashville DUI breath test cases is GERD .GERD is short for Gastroesophogeal reflux disease. It is also known as acid reflux .GERD is caused by a problem with the sphincter muscle between esophagus and the stomach.The person experiences acid refluxing into the esophagus along with whatever is in the stomach like alcohol.Once heartburn occurs , the reflux can get in the mouth which can be detected by the breath test machine.If there is alcohol in the stomach , it can help to cause a false breath alcohol reading.

The bottom line is a complete investigation should include a medical questionnaire on medical issues that will impact your Nashville DUI case.

Medical Issues Affecting Nashville's Breath Test Machine

I recently attended a seminar on the breath alcohol test machine used in Nashville DUI cases.Tennessee uses the EC/IR II breath test machine manufactured by Intoximeters. The Tennessee breath test machine uses fuel cell technology to detect alcohol.Fuel cells are nonspecific and it is only a presumption that the alcohol measured is ethanol.

The machine will read Ketones as ethanol and give a false reading. Ketones are toxic and the body eliminates them by  breath or urine.

What are sources of Ketosis ?

  1. Diabetes
  2. Euglycemic Ketosis
  3. Starvation
  4. High protein Diets

Those that have been diagnosed as diabetics may have a defense to breath test results in Nashville drunk driving cases.

 

Update on Tenneessee's Breath Test Machine

I am attending a cutting edge seminar tomorrow on Tennessee's breath test machine . Virginia DUI lawyer Michael Tillotson is sponsoring the DUI defense training session. During the seminar , I will be posting updates. You can follow them at www.twittter.com/RobMcKinney I will be posting some articles  here next week.

DUI Officers Now Follow the Nashville Criminal Law Report

Yesterday was a milestone for the Nashville Criminal Law Report . Tuesday is DUI day in the General Sessions Court for Nashville Davidson County , Tennessee. All drunk driving cases that are set for trial or hearing are on Tuesday.As I was leaving court , a couple of officers told me I am behind the times on DUI enforcement on West End Avenue. I had previously posted about the DUI stops by Electronic Express. It appears they have moved down a block or two to set up shop in a liquor store parking lot.

Thanks for reading the blog guys. From the folks at Metro Nashville's DUI unit , October is the most common month to be arrested for DUI.

Seat Belt Violations in Tennessee

  Most Tennessee driving under the influence (DUI) cases start with a traffic stop.Once a police officer observes a traffic violation then the police have probable cause for a traffic stop.One traffic violation that I see in Nashville are seat belt violations.

Under Tennessee law , all those in the front seat of a car or truck must be wearing a sat  belt. A study from Washington State compared 3000 drivers who got seat belt tickets at night to 300 drivers who did not but were randomly selected from driver's license lists. The ticketed were over 500% more likely to have a felony record.Also , they were more likely to have prior alcohol violations.

Before you leave the parking lot , put on your seat belt.

Tennessee DUI Seminar

For the last three years , I have organized the annual DUI continuing legal education  seminar for the Tennessee Association of Criminal Defense lawyers. It is scheduled for October 21 and 22 2010 in Tunica , Mississippi.Here's a list of the presenters for day 1 of the  seminar;

  1. Dour Aaron of Manchester , Tennessee will be speaking on ethics.
  2. Judge Steve Dozier ,  Division I Criminal Court Judge in Nashville  covers evidence issues in a DUI case.
  3. Nashville attorney Ed Ryan will be discussing tips for an effective preliminary hearing.
  4. Tony Corrato of Atlanta , Georgia gives his insights on the ins and outs on drug recognition experts.
  5. Judge Mark Fishburn , Judge of Division VI of Nashville's criminal courts which handles all DUI cases at the circuit court level in Nashville , will be giving a DUI case law update.
  6. Sara Compher-Rice of Knoxville,Tennessee will be presenting on the most recent changes in Tennessee' s new DUI laws in that go into effect 1-1-2011. 
  7. Eddie Davidson of Nashville has a great presentation on voir dire and the values based trial story.
  8. Glenn Funk of Nashville, Tennessee wraps up day 1 with a conclusion of ethics.

You can get more information and register for the seminar at www.TACDL.com

I hope to see you there.

 

Nashville's DUI Hot Spots

  You might be wondering why I have a picture of Electronic Express on West End Avenue in Nashville , Tennessee on a criminal law blog.. Here's why.This parking lot is where a lot of DUI enforcement officers set up radar to catch drunk drivers speeding. A traffic violation is probable cause to stop a car.. As you are driving down West End  after dinner , the police are looking for DUI drivers. West End Avenue in Nashville is one of the DUI hot spots to avoid in Nashville. Metro Nashville Police routinely step up on around Twenty-ninth and West End. Here's my tips on surviving a DUI in Nashville , Tennessee.

  1. Always Drink Responsibly.
  2. Use Your Cruise Control.
  3. Avoid Driving on West End Avenue.

 

 

What Fails You On The Walk And Turn Test ?

   One of the critical elements of any drunk driving (DUI) investigation is the field sobriety tests. In this post , I hope to explain what the police officers are looking for in the walk-and-turn test. The walk-and-turn test is just one of the three standardized field sobriety tests. Often , I have clients that tell me they passed only to discover the police officer failed them on the DUI tests.

                                  List of Clues on the Walk-and-Turn Tests

  1. You Cannot Keep Balance While Listening To Instructions
  2. Starts Before The Instructions Are Finished
  3. Stops While Walking
  4. Does Not Touch Heel To toe
  5. Steps Off Line
  6. Uses arms To Balance
  7. Improper Turn
  8. Incorrect Number Of Steps

If you fail two or more of these eight clues , you fail this test.The tests are designed for failure. I created a video on the walk-and-turn test. Hit the link for more information on the walk-and-turn test.

If you have any questions about the topic , please feel free to post a message in the contact section of my website http://www.mckinneylawfirm.com/ Also , please feel free to let me know of any questions you might have in the areas of DUI law or criminal defense .

 

 

Labor Day Alert for Tennessee DUI Enforcement

As summer fades, the Labor Day weekend is upon us. Motorists and boaters will be out in full force in the Volunteer State this weekend. Holiday weekends also mark an increased effort by the police for DUI enforcement and more boat checks by the Tennessee Wildlife Resource officers.Firs , I encourage every one to drive safe and drink responsibly.. However , the DUI roadblocks have been announced.

In the State of Tennessee , it is expected the police will set up over 200 roadblocks and spend thousands of dollars running TV ads on public awareness.  Mt Juliet Police announced a series of roadblocks they are conduction in Wilson County Tennessee.

DUI checkpoints are allowed under the Tennessee Constitution provided the particular DUI roadblock is established and operated under predetermined operational guidelines and supervisory authority that limits arbitrary discretion of law enforcement officers.

I hope every one has a safe and happy Labor day this weekend.

Misconceptions About DUI Defense

Another misconception about drunk driving cases are they are just like any other criminal case.Here's an example. In the normal first degree murder case , the State of Tennessee will have the police do an in depth crime scene investigation. The, the assistant district attorney may order ballistics tests , blood splatter patterns and collect other forensic evidence. All that evidence is collected and subject independent analysis.

In  Tennessee DUI cases , a independent breath sample can be captured but it is not done nor does Tennessee law require it. Most DUI arrests aren't video taped to preserve the evidence of the field sobriety tests

Some criminal defense lawyers don't take the DUI cases seriously. It's just a misdemeanor right. Wrong. Tennessee passes tougher DUI laws every year.It's no longer a minor crime.

Here's what a DUI lawyer must be know:

  1. Search and Seizure Law
  2. The Science of Field Sobriety Tests
  3. The Science of Alcohol Consumption
  4. The Science of Blood and Breath Alcohol Analysis

 

So , lawyers must take these cases seriously. These four topics should be asked of your DUI lawyer.

How to Use the Erased Nashville DUI Tapes

The fall out from the erased DUI video tapes by the Nashville, Tennessee police department continue.  Attorney David Brandon was the first attorney to discover the erased tapes.  I congratulate him for discovering what had happened.  However, I think everyone needs to be aware that the erased DUI tapes are not a get out of jail free card.  It is merely one key piece of evidence that is not available.  In court this week, I saw how not to use the loss of evidence.

Here is the key. Destruction of evidence may not require an automatic dismissal unless a criminal defendant can show bad faith on the part of police.  Failure to preserve potentially useful evidence does not constitute a denial of due process of law.  See Arizona v. Youngblood.

A number of states have not followed Youngblood because of the unfairness or requiring the accused to prove bad faith or that the evidence would in fact be favorable.  Tennessee rejects the Youngblood "bad faith" analysis.  Instead Tennessee adopted a "fair trial" analysis. See State v. Ferguson jury instruction.

So, my advice is to use the loss of the video tape to drive favorable plea discussions.  When the facts are great anyway, then ask the court for the Ferguson jury instruction at trial.

Update on Nashville's Lost DUI Videos

Here's an update on the 1300 DUI videos that were destroyed.  At first Metro Nashville Police blamed ICOP Digital stating the software had a flawed update.  Brian Haas of The Tennessean reported today on the company's response.  Here is a copy of the letter that was sent to Metro Police Chief Steve Anderson.  You can read the whole letter but here is the gist of ICOP 's position.

 

 

 

 

The loss of any files was not the result of ICOP’s action, but the result of your personnel and/or operating procedures.

ICOP blames Metro Nashville Police in it's open letter to Chief Anderson. While Metro Nashville Police blame ICOP. Here's Nashville police department's news release on the subject. It looks like a lawsuit waiting to happen.

What does this mean if you have a drunk driving case (DUI) pending in Nashville,Tennessee?  First, the police have a duty to preserve exculpatory evidence in all criminal cases. The question then becomes whether the destruction was negligent or intentional.  In Arizona v Youngblood, The United States Supreme Court held that the government's failure to preserve evidence only violates due process if the the defendant can show the government acted in bad faith.  Tennessee has embraced this principle in State v. Ferguson which held in part....

 If the proof demonstrates the existence of a duty to preserve and further shows that the State has failed in that duty, the analysis moves to a consideration of several factors which should guide the decision regarding the consequences of the breach.   Those factors include:

1.  The degree of negligence involved;

2. The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available;  and

3.  The sufficiency of the other evidence used at trial to support the conviction

So, while the loss of the DUI videos does not automatically mean a dismissal, it does give you some great leverage in handling your case.

New DUI Bail Bond Laws in Tennessee

Tennessee 's new bail bond laws on DUI second offenses and greater goes into effect on January 1 , 2011. Tomorrow , I am presenting a webinar for the Tennessee Bar Association on the new DUI bail bond laws as well as tips on how to lower a bail bond. I will be answering questions on the topic during the webinar.

Nashville DUI Videos Erased



   A faulty software update erased 1300 Nashville DUI arrests.  Metro Nashville Police report that the videos that were erased  were from October 2009 until April 2010. All of Nashville's DUI unit  police officers have a video in their patrol car. The purpose of the video is to record the field sobriety tests and the observation period before a breath alcohol test is given. What does this mean for those with a destroyed DUI video ?

Loss or destruction of evidence is a big issue in any criminal case. The police have a duty to preserve the evidence they collect. In this case , the videos have been lost forever. It gives the defendant some bargaining power in getting their cases either reduced to a reckless driving or a special jury charge if the case goes to trial. Bottom line is that the loss of the video tapes gives them a solid legal defense.Here's what a Nashville General Sessions Judge had to say about the issue.

 

"It's a fairly significant piece of evidence obviously," said presiding General Sessions Judge Dan Eisenstein. 

The judge said video evidence can play a key role in all types of criminal cases.

"It's highly unusual. It doesn't happen everyday," said Eisenstein.

It is my understanding the loss of the DUI videos was discovered in court on 8-3-2010 . Judge Eisenstein made inquiries after a defense lawyer asked about getting the DUI arrest videos.

Here's the questions that need to be answered in light of the disclosure of the destruction of the DUI videos;

  1. When did the Metro Nashville Police Department learn of the destruction of the DUI video tapes ?
  2. When did the District Attorney's office learn of the problem ?

Surely , the police knew or should have known about the loss of the videos before this week. Remember , some videos were lost as long ago as October.Stay tuned for how this story plays out.

 
 

 

 

Free Tennessee DUI First Aid Kit

In the last few months, I have been creating videos on different legal issuses ranging from drunk driving defense to truck accident cases.  I complied a few clips of different aspects on the ins and outs of  defending a Tennessee DUI case.  I am providing these DUI DVD's free as long as the supply lasts. The DVD covers some basic issues in field sobriety tests as well as blood alcohol tests.  If you want our office to mail you your free "DUI First Aid Kit", please post  your address in the comment section of the blog or contact the office at 615-259-9009.

More on Misconceptions on Hiring a Criminal lawyer

Minnesota DWI Lawyer Charles Ramsay commented on  my post  " Misconceptions of a DUI Lawyer".  I just read his post on avoiding a jack of all trades lawyer which gave some insight on the issue. The point is while you are searching for an attorney to handle your DUI case , drug case , sex crimes case or any other type of criminal case do you want the jack of all trades lawyer . Is the lawyer's website  advertise  that  the lawyer can handle any case from bankruptcy to divorce . Granted a lawyer can handle  one or two different practice areas with much success . I focus on two practice areas  myself but they are both in the litigation area. Remember the old saying " Jack of all trades master of none".

Misconceptions About DUI Lawyers

Here's the first misconception about hiring a lawyer for your drunk driving case (DUI) .

                            Misconception Number 1 :

Any Lawyer can defend an accused drunk driver.

A DUI defense attorney has become a sub-specialty within the area of criminal defense lawyers. When a prospective client walks into the average law office and asks for help on a drunk driving case, they may never have handled a DUI case.  A lawyer may look at the warrant and think the case is hopeless and encourage the defendant to enter a quick plea of guilty.

DUI  defense has become a specialized field.  A great DUI lawyer is a geek who studies and learns the ins and outs of the defense.  It involves being up to date on the following;

  1. Search and Seizure Law.
  2. Detailed Knowledge on The Field Sobriety Tests.
  3. Knowledge of the internal workings of the breath alcohol Tests and it's problems.
  4. Knowing the science of alcohol absorption and alcohols effects on the human body.
  5. Being well schooled on blood tests.

In today's legal environment, you need a DUI geek . You can't afford to hire someone who is going to plead you guilty without looking at all your options.  Studying the officers time cards, the maintenance records of the alcohol testing machines, filing pretrial motions to suppress the traffic stop: Do you want a lawyer that does this stuff or a lawyer that will just meet you at the courthouse, take your money and plead you guilty.  Today, I ran into a lawyer who took a case with a .28 breath alcohol test.  The attorney intended to plead them out and commented was that even I couldn't get them off.  The moral of the story is "You never know til you try".

 

New Training in Breath Alcohol Testing

I just signed up for a new DUI seminar that is being presented by Virginia DUI lawyer Michael Tillotson.  Here's a list of the topics :

  1. Introduction to the Intoxilyzer EC / IR II Machine
  2. Medical Conditions, DUI and Breath Testing
  3. Top Ten Defenses Against EC / IR Breath Testing
  4. How to Read Downloadable Data from the EC / IR II
  5. Issues of Reliability and Accuracy Using the EC / IR II
  6. Source Code and Radio Frequency Issues on the EC / IR II

By the way, Tennessee uses the EC / IR II in all breath alcohol DUI cases in Tennessee .

One question to ask if your are looking for a Nashville DUI lawyer is what does EC / IR mean. Drop me a comment and I will happy to let you know.  Also, another question to ask a prospective DUI attorney is what training you have had in Tennessee's breath alcohol machine.

New Jersey Supreme Court DUI Ruling

The New Jersey Supreme Court has just issued an important ruling on drunk driving cases (DUI). The court held that the police must advise the defendant of the ramifications of the breath test in their native language.  So, if the police arrest a Hispanic defendant, they must give the instructions in Spanish.  Under Tennessee's implied consent law, the police must give a warning if you refuse to consent to a breath or blood alcohol test.  Here's a video  from Fox News on the subject.  Thanks to Tom Nelson for the heads up.

Monkey Business in Indiana Breath Test Machine Bid Process

The Indystar reported about some potential problems in the bid process for the new breath test machines.It appears there may be some irregularities in the bid process. Supposedly , one of the competing companies only had one day to submit a bid proposal for a breath test machine.

Ryser, vice president of Draeger Safety Diagnostics, had been to Indianapolis three times to demonstrate his breath-alcohol testing product. But with just one day to bid, he recalled telling his colleagues, "Something is not good -- and not right."

Intoximeters of St Louis , Mo. won the bid. Intoximeters will now provide the breath alcohol machines state wide in Indiana. Take a wild guess who sells breath test machines to the State of Tennessee ?

Here's one other interesting tidbit. it appears the breath test machines diminish over time.Most Tennessee breath test machines have been in the field for years. Read this quote from the folks at Intoximeters.

There is another concern: The machines' effectiveness can dwindle when they're not being used.

Said Rankine Forrester, CEO of Intoximeters: "To say time has no effect would be disingenuous."

I guess the breath test machines aren't infallible according to Mr. Forrester.

 

DUI Checkpoints in Tennessee

 On this holiday weekend , the Tennessee Highway Patrol will be out in force to arrest those that are suspected of drunk driving. Here is a link to the Tennessee Highway Patrol announcement of times and locations of DUI checkpoints or roadblocks. In the Nashville district , the Highway Patrol will be conducting roadblocks in Davidson , Rutherford , Dickson , Cheatham and Sumner Counties.

You might be thinking why am I posting the location and times of the DUI roadblocks. It is required under Tennessee laws , if they aren't posted and published in local newspapers the roadblock may constitute a illegal traffic stop.

Remember:

  1. Please drink responsibly.
  2. Use a designated driver.
  3. Take a cab.

Have a happy and safe Fourth of July.

 

Ignition Interlock Video

On January 1 , 2011 , new DUI laws will go into effect in Tennessee that mandate the ignition interlock devices. These devices may be required to be installed in cars of those convicted of DUI. Here's a short video of a lady that had her child blow into the interlock device.The interlock device is like a breath test machine , but you can't start your car until you blow into the machine. Here's the story on some of the potential issues with the device.

Can You Get Arrested For DUI Even If You're Parked?

One of the most common questions I get is, "Why was I charged for drunk driving if I was parked in my car?"  Under Tennessee law, a person can be charged for drunk driving (DUI) even if they are asleep in the back seat of the car.  I created this short video of various factors the court or jury can consider when deciding whether you were in physical control of your car.  Also, here is a recent case that discusses the issue.

Blood Alcohol Level Over .20% ?

 Detroit Lions team president Tom Lewand failed field sobriety tests and his blood alcohol content was more than twice the legal limit in two breath tests administered by Roscommon County Sheriff's deputies who observed him driving erratically late Friday, reports USA Today.  I normally don't blog about celebrity DUI arrests however there are two points worth discussing.

  1. Mr. Lewand's breath alcohol was over .20 % blood alcohol level.  If he was convicted under Tennessee's DUI laws, he would have to serve 7 days in jail. This is another reason why you might consider whether you should consent to a blood or breath alcohol test in Tennessee DUI cases.
  2. Michigan conducts duplicate breath alcohol testing to confirm the first breath test reading. Michigan uses good scientific methods in their breath testing program.  However, all breath tests in Tennessee which follow the scientific protocol established by the Tennessee Bureau of Investigation only use one test.  I understand the T.B.I. will soon go to 2 tests in future blood alcohol tests.

I wonder why Tennessee uses only one breath or blood alcohol test.  Interestingly, the National Safety Council recommends 2 tests.

 

The Greatest DUI Video Ever

I thought a little DUI video might be in order . I have been out of town and had a trial last week in Ashland City , Tn. So, I thought to get back in the swing a little humor might be appropriate. Thanks to Jamison Koehler a Northern Virginia DUI lawyer for the tip.

Keep me posted on your thoughts to the video.

Is the Smell of Marijuana Enough to Convict for DUI ?

 I was reading Flem Whited's "Drinking and Driving Law Letter " today.One case that was interesting was a case out of Illinois. In People v. McPeak , the court reversed a DUI conviction based upon the use of marijuana. The court held that the odor of cannabis coming from the defendant's  person coupled with his own admission that he had " taken two hits about an hour ago" was insufficient to sustain a conviction for DUI.

Now, the next question is why the smell of marijuana is enough to justify a search of a car based upon the smell of burnt marijuana. Smell alone should not be the basis of a  warrantless search absent some corroborating evidence of drug usage.

On another note, one question you should ask an attorney you are considering hiring is does he or she read the " Drinking and Driving Newsletter.'

It may be an indication of how that attorney keeps up on new developments of the  drunk driving law.

Is the Breath Test Reliable In Nashville , Tn DUI Cases ?

  Is the breath test machine reliable in Nashville driving under the influence (DUI) cases ? Let's ask the folks in Washington D.C. The Washington Post reported that over 400 DUI convictions were based upon inaccurate results.The Post reported that  someone improperly set the baseline alcohol concentration levels on the breath test machine.Is there problems happening in Nashville DUI cases  ?

The answer is unclear due to the following reasons :

  1. The breath test machine is calibrated once every 90 days.
  2. It is calibrated only once at that test.
  3. There is not a duplicate test.
  4. Criminal defense attorneys have not been allowed access to the computer software that controls the breath alcohol test machine. 
  5. There is no duplicate testing of the breath test results as suggested by the National Safety Council.

So, the answer is who knows.However there are a bunch of people who were falsely convicted of driving under the influence (DUI) in Washington D.C. that don't think so.

 

The Horizontal Gaze Nystagmus Test in Tennessee

In this post , i continue to discuss the Metro Nashville Police Department's DUI testing report. The first field sobriety test given is usually the horizontal gaze nystagmus test. Laboratory research by the Southern California Research Institute indicates the HGN test is 77 % accurate according to the 2006 NHTSA manual in determining blood alcohol levels over .010. There has been no peer review of these studies that I have read.

 Under current Tennessee case law , the horizontal gaze nystagmus test  (HGN) is inadmissible . In State of Tennessee v. Murphy , The Tennessee Supreme Court excluded the HGN test  as evidence in DUI trials.

DUI Evidence In Tennessee

The video in this post is addressing the "exit sequence" component of a DUI or drunk driving investigation.The police officer is looking for evidence of impairment as a driver steps and walks from the car. According to the National Highway Traffic  Safety Administration , the police will be looking for the following clues.

  • Cannot open door ;
  • Leans or braces against vehicle ;
  • falls out of vehicle
  • stumbles getting out ;

How you get out of the car is also great evidence to prove you weren't impaired.

 

 

Nashville DUI Evidence

The Metro Nashville Davidson County Police Department has created a DUI testing report.The video in this segment is a discussion on the observation of the suspect. .One key component of the case is the personal contact between the accused and the police officer. The police officer may be looking for evidence that you are intoxicated. Some of what they are looking for are :

  • bloodshot eyes ;
  • soiled clothing ;
  • watery eyes :
  • open containers of alcohol ;
  • slurred speech ;
  • walk ;
  • mental state ;

These are just some examples that the police are looking for in their DUI / DWI investigation.

 

Cruical Evidence in Nashville DUI Trials

After the police turn on the blue lights to stop you, one clue they look for is your response to emergency equipment. A DUI investigation is usually broken down into three parts based on the National Highway Traffic  Safety Administration manual on DUI or DWI detection. One of those steps is the vehicle in motion phase. In a prior post , I discussed the traffic stop.The stopping sequence is the next portion of driving that the police are observing.According to the NHSTA manual , an impaired driver may exhibit additional clues as to impairment after an order to stop is given.These clues or cues may include the following:

  • An attempt to flee ;
  • No response ;
  • An attempt to evade arrest;
  • Slow response ;
  • Sudden stop ;
  • Striking the curb o another object ;

The blue lights , siren , or emergency equipment creates conditions for a driver to divert his or her  attention to the roadway.An impaired driver may not be able to handle multiple tasks and additional evidence of impairment may appear.

Please watch the video and if you have any questions please feel free to contact me.

Nashville's 132 Report and the Traffic Stop

A police officer must have probable cause to make a traffic stop in an DUI investigation.  In Metro Nashville Davidson County's DUI testing report commonly referred to as a 132 report it lists several reasons for a traffic stop.They are:

  • Crossing center dividing line
  • Failure to obey traffic signals
  • Swerving within the roadway
  • equipment violations such as driving without headlights
  • Speeding
  • Vehicle driving off roadway

The reason for the traffic stop is the first thing an experienced DUI lawyer investigates.

 

Evidence In Nashville Tennessee DUI Cases

Starting today, I will be posting a series of video blogs on one of the most important pieces of evidence in a Nashville , Tennessee DUI case.  The Metro Nashville Davidson County Police Department uses a report called a 132 report in all DUI investigations.  Other than a blood or breath test, the 132 report is the most critical document to review in a Nashville DUI case.  I have broken down the report into sections for the discussion.

How A Scram Device Works

  The Scram device has been in the news since Lindsay Lohan was ordered by a judge to wear one.  I thought a little information on how the machine works might be helpful.  Here is a brief summary of how the machine works from the website of the Scramx :

  • Transdermal technologySCRAMx checks for alcohol consumption by detecting and measuring any ethanol that is present in your skin’s insensible perspiration. This process measures the alcohol that comes off the skin around your ankle and, unlike blood tests or other methods, is completely non-invasive to you.
  • Continuous monitoringSCRAMx automatically tests for alcohol consumption around the clock. You will notice a slight vibration while the bracelet takes a reading, but otherwise the monitoring process is transparent and minimally disruptive to your daily activities.

 I predict the use of the scram device will dramatically increase especially with the new DUI bail bond law coming into effect on January 1, 2010.

Lindsay Lohan and Scram

 I thought I would show everyone one what a SCRAM device looks like on Lindsay Lohan.  Ms. Lohan was ordered to wear a Scram device when she failed to show up to court in California.  I expect the SCRAM device to be used more often in Tennessee DUI cases by the courts.  It works much like a breath test. The device senses alcohol from perspiration of the skin.  Once it detects alcohol, it sends a result to the monitoring agency. The accused could be forced to wear it as a condition of probation or bond release.

Nashville DUI Arrest Quotas Revealed

Phil Williams of Nashville's News Channel Five television station exposed the DUI arrest quotas of the Nashville DUI Enforcement Unit. The Metro Nashville DUI Enforcement Unit is responsible for the DUI unit, as well as the police officers that are assigned to the Governor's Highway Traffic Safety Grant. The grant pays police overtime to work these special DUI shifts.  Mr. Williams reported regarding the 2 arrest quota per shift.

Here's an excerpt from the memo:

But News Channel 5 Investigates obtained several recent memos in which a DUI lieutenant warned officers that they could face disciplinary action if they did not start arresting more people.

"Self-motivated officers ... should more often than not be able to arrest 2 DUI offenders each 8.5 hour shift," one memo read.

That's "not a quota," the memo claimed, "but simply a benchmark."

But then it added, "If improvement does not take place, additional corrective action will occur."

On the witness stand, police officers don't admit of a quota for arrests, but this memo indicates a different story.  If no arrests are made, a police officer may not be invited back for this lucrative job.

So, the question is:  is there any bias of Nashville Police Officers in making an arrest on subjective information like the field sobriety tests?  Read the memos and you be the judge.

DUI Prosecutions in the Future

California DUI attorney Lawrence Taylor  just posted an article on the future of DUI prosecutions.  The blog post was premised on a speech that he presented several years ago.  In Tennessee DUI cases, the severity of the prosecution is completely different in a drunk driving case verses another type of criminal case.  One does not need to go any further than to read the new bail bond law on those accused of drunk driving to see the difference in how the law is applied to DUI charges.

 

DUI Prevention Tip of the Day

My DUI prevention tip of the day was inspired by a new case I am handling. The tip of the day is to avoid using your cell phone while driving after having a beer.  The National Highway and Traffic Safety Administration has produced numerous studies on cell phone usage and it's impact on driving.  Combine a little alcohol and talking on the cell phone and it equals some back driving.  Bad driving results in a traffic stop which might lead you to a jail cell. Here is a short list of Rob McKinney's tips on cell phone usage after a drink;

  • Turn your cell phone off while driving.
  • Don't answer if it is on.
  • Lock it in your trunk so you won't be tempted.  (This is my favorite).
  • Never text while driving.  It's against Tennessee law anyway and could lead to a traffic stop on this use alone.

As always, please drink responsibly.

 

New Law on DUI Bail Bonds Passes in Tennessee

There is an attack on our constitutional rights as it relates to DUI cases continue in Tennessee.   A new law goes in effect on January 1, 2011 which creates a host of issues.  Here's the new law ;



BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Section 40-11-118(a), is amended by adding the following at the end of the existing language: If the defendant has one or more prior convictions for
§ 55-10-401, § 39-13-106 or § 39-13-213(a)(2),
the defendant shall not be released unless the court first determines he or she is not a danger to the community.

The court may consider the use of monitoring devices to eliminate danger to the community including, but not limited to:
(1) Ignition Interlock devices;
(2) Transdermal monitoring devices or other alternative alcohol monitoring devices;
(3) Electronic monitoring with random alcohol or drug testing; or
(4) Pretrial residency in an in-patient alcohol or drug rehabilitation center.

SECTION 2. Tennessee Code Annotated, Section 40-11-148, is amended by designating the existing language as subsection
(a) and by adding the following as a new subsection:
(b) If a defendant has been admitted to and released on bail for a violation of
§ 55-10-401, § 39- 13-106 or § 39-13-213(a)(2) and commits any of those crimes after release,
he or she shall be considered a danger to the community. He or she shall not be released with another bail unless the court first determines he or she is no longer a danger to the community. The court may consider the use of monitoring devices to eliminate the danger posed including, but not limited to:
(1) Ignition Interlock devices;
(2) Transdermal monitoring devices or other alternative alcohol monitoring devices;
(3) Electronic monitoring with random alcohol or drug testing; or
(4) Pretrial residency in an in-patient alcohol or drug rehabilitation center.

SECTION 3. This act shall take effect January 1, 2011, the public welfare requiring it.
 
The problem is that the Article I of the Tennessee Constitution prohibits excessive bail.
 
Who makes the determination of the priors?  It has been my experience that the priors are often wrong.
 
Who makes the decision that the accused is not a danger to society?  Some magistrate from Sumner County, Robertson County, or Rutherford County?  What are their qualifications for making this decision?  Can you get a lawyer or do you sit in jail?
 
The new law makes no sense unless you own stock in an ignition interlock company or a scram.
I wonder whose lobbyists were at work on this deal?

Can You be Convicted of DUI When The Car Is Parked?

The answer to that DUI question is yes in Tennessee.  In Minnesota, Daryl Fleck was convicted of DUI when the car wouldn't even start.  Mr Fleck took his case all the way to the Minnesota Supreme Court which upheld his DUI conviction.

The theory of law where you can be convicted of DUI when parked is called "physical control".   Here is what the court and juries look for;

  • Where were the keys ?
  • Where was the driver located?
  • Was the car operable?
  • What was the location of the car?

Former Ridgeland, MS Police Officer Joins Gallatin, TN Police Department

Daniel Soto, a Ridgeland, MS police officer, left his job under a cloud of perjury allegations.  It appears Mr. Soto was a aggressive police officer who made a lot of DUI arrests.  After the complaints surfaced, news reports indicated he did not show up in court and left for Tennessee.  The DUI cases in Mississippi which were the subject of the investigation were dismissed.  Why is this report important?

Mr. Soto is now employed by the Gallatin, Tennessee Police Department.  I wonder what he's doing now?

Defenses to a Breath Alcohol Test in Tennessee

   Until 1992, The State of Tennessee had to present expert testimony as the the results of a breath alcohol test in a Tennessee DUI case.  In State of Tennessee v. Sensing 843 S.W. 2d. 412 ( Tenn.1992), The Tennessee Supreme Court relaxed the admissibility requirements of a breath test machine.  Instead of requiring expert testimony, the court established strict rules for the breath alcohol test.  One of those rules is the observation period prior to giving the test.

In Tennessee, as with most states, when a breath test is requested a defendant must remain under observation of a law enforcement officer for a twenty minute period.  The purpose is to ensure that the subject has not burped, belched, hiccuped, or placed anything into the mouth.  The rule is designed to ensure a false breath test is not created though mouth alcohol.

Thus the starting point in defending a drunk driving case with a breath test is to question the 20 minute observation period.  The courts have held that doing paper work during the observation period invalidates the breath test.

  1. Was the police officer watching you the whole time?
  2. Was the police officer doing paperwork while he was watching you?
  3. Was the Police officer talking on his cell phone or radio?

Right now, I have a case where the police officer was talking to my client's wife on the cell phone during the observation period.  Remember the tests must be done according to protocol to be admissible.

 

What's The Cost of A DUI Conviction in Tennessee?

 California DUI lawyer Lawrence Taylor wrote a post on his DUI Blog on the cost of a DUI conviction.

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Drunk Driving Could Cost $20,000

CNBC News.  Dec. 14  –  Twenty thousand dollars sounds like a lot to pay for a drink at a holiday party, but if that last cocktail puts you over the legal limit, that “one for the road” could easily cost you that or more.

One drink too many puts you at risk for not only an arrest, but also for fees, fines and costs that can run you thousands of dollars. While a DUI or DWI may be a misdemeanor charge in a number of jurisdictions, it’s a matter that most judges and district attorneys take very seriously. The financial toll of a conviction will play out for years to come, and in many states that can add up to $20,000 before everything is over. This includes bail, fines, legal fees, increased auto insurance premiums, loss of work income, court-ordered alcohol education programs and more.

Of course, if you get fired from your job as a result of the arrest, that dollar figure would skyrocket…

The Texas Department of Transportation says a June 2006 survey in that state showed the total costs of a DWI arrest and conviction — for a first time offender with no accident involved — would range from $9,000 to $24,000.

 

 

 

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Can You Get a Restricted Driver's License After a DUI Conviction ?

One of the most frequently asked questions that I get in representing those accused of drunk driving is "Can I get a restricted drivers license." If you have been convicted of a first offense DUI/DWI or an implied consent violation , you can get a restricted driver's license. The video shows how to get your restricted driver's license.

DUI By Riding Lawn Mower

An  East Tennessee man was charged with DUI for driving his lawn mower. In Athens ,Tennessee , a man was driving his lawn mower while he had some fishing poles. There was no report if he he was charged with fishing without a license.

Can the police arrest this poor soul why riding his lawn mower ? Yes. Under Tennessee"s drunk driving law found at Tennessee Code Annotated 55-10-401. A citizen can be charged with DUI if they operate a motor driven vehicle on any of the public roads and highways of the state,or any streets or alleys or shopping centers and the like or any premises open to the public at large.

The DUI laws make it illegal to drive anything motorized under the definition of Tennessee's"s DUI law such as an ATV , Moped, Lawn Mower or even a scooter.

 

Witness Selection in Drunk Driving Cases

 A drunk driving case (DUI) is a case of opinions. The police have an opinion that the defendant is impaired.Your client has a different opinion of their sobriety. How does a criminal defense attorney rebut the police officers testimony ? Witnesses may need to be called to attack the police testimony.Here's a list of potential witnesses a DUI lawyer should consider:

  1. Friends , companions , or spouse.
  2. Bystanders at the scene.
  3. Bartenders, waiters, or waitresses.
  4. Witnesses who know the defendant's physical or speech problems
  5. My personal favorite is the valet.
  6. People who spoke to the defendant by cell phone or communicated by text message.
  7. The bondsman or whoever picked up the accused from jail.

Remember , please interview these witnesses before a trial or hearing.One warning of this list of witnesses is the bartender.Use a bartender with caution.For example , the defendant is a regular customer of that bar does not bode well for an effective defense. Here's the problem testimony. "Joe comes in here all the time"  said the bartender and " he never has more than six beers and four shooters." How fast can the jury say guilty.

Witness selection in drunk driving cases can be used effectively , but be careful.

 

Coffee and Drunk Driving Do They Mix ?

I have written about the effects of Red Bull and alcohol , but I just read a excellent post by Lawrence Taylor who writes the DUI Blog.here is an excerpt from his post on the effects of caffeine and alcohol

Caffeine and alcohol have a synergistic effect — that is, they combine to produce an accelerated effect. Rather than sobering a person up, as is commonly believed, coffee can actually increase the symptoms of alcohol.

The definitive studies were done by researchers in Great Britain and reported in an article entitled, "Interactions of Alcohol and Caffeine on Human Reaction Time", appearing in the scientific journal Aviation, Space and Environmental Medicine 528 (June 1983).

The conclusions of the scientists:


"Alcohol has always been categorized as a central depressant and caffeine as a central stimulant. Therefore, it should follow that an antagonistic [counter-active] interaction should occur when these two drugs are ingested simultaneously. But as these results illustrate, this is not necessarily the case…

"Caffeine has a synergistic interaction with alcohol…(It) has the effect of potentiating the detrimental effects already induced by alcohol….Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine

This study coupled with the Wake Forrest and University of Florida studies clearly show that the caffeine use magnifies coordination problems which may effect the field sobriety tests.

New Tennessee DUI Laws Up for Debate

While I was in court today in Sumner County ,Tn., I bought a copy of  the Gallatin News Examiner , In the community forum section, State Rep. Mike McDonald of Portland ,Tn. wrote  an update on the new DUI laws up for discussion.House Bill 3280 revises the list of substances that can be cited as causes for driving under the influence or driving while intoxicated.Under the proposed new law ,it would be illegal to drive a car while under the influence of any intoxicant,marijuana ,drug substance or combination of these substances affecting the central nervous system.

The proposed  laws intend to cover the concept of a poly-drug. Alcohol  consumed while taking prescription drugs creates different effects on the human body.The bill wants to cover the area of "drugged driving." Drivers who knowingly take prescription drugs are just as dangerous as those drinking and driving. Warning labels on your prescription bottles are there for a reason.The message is don't combine drugs and alcohol.The new DUI law intends to cover that situation.

HB passed the House and is scheduled to be heard by the Senate Judiciary Committee next week.

 

Women,High Heels, and Field Sobriety Testing

Can the Field Sobriety Tests in a drunk driving case be effected by the shoes you wear ? The answer is yes.The National Highway Traffic and Safety Administration has produced a manual on the Standardized Field Sobriety Tests.In the 2006 manual in lesson VIII-11 ,it states that individuals wearing heels more than two inches should be given the opportunity to remove their shoes.The video will help explain the problem with this factor.

 

Red Bull Plus Vodka Equals DUI Trouble

The popularity of mixing Red Bull, Vodka, and Jagermeister in cocktails is gaining among college students.A vodka bomb or Jager bomb is the drink of choice with Vanderbilt ,Belmont , and MTSU students.However,studies are finding that the combination of caffeine and alcohol create a poly-drug which can lead to a host of dangers.

DUI attorney Neil Shouse addressed some of these issues in a recent post on DUI Blogger .Mr.Souse reported that the caffeine in these types of energy drinks masks the effects of intoxication.A recent study on the issue at the University of Florida found that drinkers who leave a bar after mixing these drinks are four times more likely to drive home.

Allison Aubrey of National Public Radio reported on these findings from the University of Florida and a previous study by Wake Forrest University.

 "They believe the stimulant effect counteracts the depressant effect of alcohol," said Bruce Goldberger, a toxicology professor at the University of Florida and senior author of the new study. "But that's not what's going on."

In 2008,Anheuser Busch announced it would stop making alcoholic drinks that included caffeine.The Food and Drug Administration have urged beverage companies to prove these drinks aren't dangerous.

In my college days, a Jack and Coke was as good as it got.

 

How to Beat a DUI Case In Nashville

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There are several myths about defending a DUI case.Several years ago Atlanta,Ga DUI lawyer Bubba Head wrote an article on the five myths of defending a DUI case.One of those myths is you can't win a DUI case.You can beat a DUI case if the facts are on your side.Here are some tips on beating your DUI case.

How To Hire a Nashville DUI Lawyer

If you have the misfortune to get arrested for DUI in Nashville,Tn. , you  will get from 15-20 letters , postcards, and even a magazine.How do you hire the best DUI lawyer for your case.I created a short video that will help you go though the process of hiring a DUI lawyer in Tennessee.

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Refusing the Blood or Breath Alcohol Test

In today's criminal news , Knox County Assistant District Attorney Kevin Allen was charged with Driving Under The Influence (DUI) in Anderson County,Tennessee.Mr. Allen was also charged with violating the implied consent law for refusing to take the blood or breath alcohol test. A violation of the implied consent charge carries a loss of license for  months.

Remember Mr. Allen is presumed innocent until he is found guilty beyond a reasonable doubt. The reason I am mentioning the case is that even prosecutors realize that submitting to a blood alcohol test or breath test is not such a good idea.

Tennessee's DUI Ignition Interlock Law Moves Forward

 Tennessee's version of the DUI Ignition Interlock Law has moved forward. Currently there are two  of the  being proposed. House Bill 2768 by Representative Shipley is less restrictive than House Bill 2917 which is being pushed by MADD.House Bill 2917 would require an ignition interlock device of everyone that is convicted of drunk driving in Tennessee with no exceptions.

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Blood Test Evidence In Tennessee DUI Cases

Most counties outside of Nashville Davidson County use blood tests to determine blood alcohol concentration.Most police departments in Willamson County such as Franklin Police Department and Brentwood Police Department always request a DUI suspect to submit to a blood alcohol test.Also Sumner County law enforcement agencies like Hendersonville Police Department and Gallatin Police Department use blood alcohol tests as well. Here's a short video on some issues that come up in a DUI blood test case. 

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America"s Drunkest Cities

Men's Health Magazine listed America"s drunkest cities in a recent article.How did they determine the list ? The list was based upon death rates from liver disease, alcohol impaired car crashes , the number of DUI arrests , and the severity of the punishment.Two Tennessee cities made it on the top 100 list. Nashville,Tn was number 14.Memphis ,Tn was number 71.

Last week , I had a hearing where the head of  Metro Nashville Police Department"s Traffic enforcement unit testified on the statistics on DUI arrests and vehicular homicide cases in Nashville.

Here are the numbers:

1.In 2009, there were 4238 DUI arrests and 24 traffic deaths related to impaired driving.

2.In 2008, 5595 DUI arrests and 24 traffic deaths were related to impaired driving.

There was no report of the number of vehicular homicide convictions in these past two years.

Super Bowl XL IV and DUI Checkpoints

On Sunday , the New Orleans Saints and the Indianapolis Colts do battle in Super Bowl XL IV.Sports bars will be packed with fans cheering on their favorite team. TheTennessean ran a list of sports bars that are running wing and draft beer specials.Fans across Tennessee will be out going to Super Bowl parties.However, DUI enforcement units will be out in force as well in Nashville,Sumner County ,and Williamson County.

Police officers in Middle Tennessee routinely step up DUI enforcement around "adult holidays".The Super Bowl's one of the premier sporting events in our country.Police are probably planning DUI checkpoints and will be putting extra officers on the roadways.Failure to signal , driving with expired tags, or weaving are all valid reasons to pull a driver over on Super Sunday.

Some drivers may want to research the location of DUI checkpoints or roadblocks before heading out to watch the game. Most times the police publish the location of the DUI checkpoints in advance.Simply goggle Tennessee DUI roadblocks or list Tennessee Highway Patrol or your your local police for example Franklin Police Department .

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The U.S. Supreme Court Dodges The Confrontation Clause Issue

The Sentencing Law Blog reported on the U.S.Supreme Court's Order in Briscoe v. Virginia which I have discussed in previous posts. In Briscoe , The Court heard arguments in January of this year on the application of The Confrontation Clause as it relates to forensic evidence reports specifically in drug and DUI cases..It was anticipated that the Court may reverse itself from the opinion released in Melendez-Diaz v,. Massachusetts. A recap of the oral argument illustrated the problems and the issues within the Court. In a one paragraph Order , the Court vacated the decision in Briscoe v. Virginia without further comment.

My take is that the U.S. Supreme Court is a dysfunctional mess.

5 Ways to Avoid Being Stopped for Drunk Driving in Nashville

Here's my list of five ways to a avoid being stopped for Drunk Driving in Nashville , Tennessee.

1. Avoid driving on Broadway and West End. They are the same street , but in Nashville we have multiple names for the same street. The  DUI Unit of the Nashville Metro Police Department sets up traffic enforcement near the I-440 access points.

2.Make sure Your headlights  and brake lights are operational.

3.Don't drive with expired tags.

4. Drive the speed limit.

5. Always drink responsibility , have a designated driver, or take a cab.

Be Safe.

Independant Blood Tests in DUI Cases

The DUI Unit in Nashville, Tennessee uses a breath alcohol test in most DUI arrests .The question is " Do you have a right to an independent blood alcohol test."  .Tennessee Code Annotated 55-10-4109(e) provides that a person tested for blood alcohol "shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory  of that person's own choosing and at that person's own expense." So , once you blow.You have a right to an independent blood test. Demand it.

If the police refuse to give you an independent blood test , what happens ? In Tennessee v.  Geselbracht , The Tennessee Court of Criminal Appeals upheld a trial court's dismissal of DUI charges based upon a refusal to allow the defendant his right for an independent blood test.The Court found that the police violate his his reasonable request to obtain evidence in his defense.

 

Twitter and DUI Checkpoints

What does Twitter and DUI checkpoints have in common ? Apparently , Twitter is being is being used to warn DUI drivers of the location of DUI checkpoints around the country. USA Today"s Chris Woodyard  reported that police around the country will be setting up DUI sobriety checkpoints or roadblocks in an effort to arrest DUI drivers.The police are complaining that Twitters are posting tweets of the location of the DUI checkpoints.

I have to confess that I thought Twitter was just a novelty even when I signed up.Now , Fresno , Ca. police reports it is a commonplace occurrence that drivers are tweeting so fellow drivers can avoid a DUI roadblock.One police officer admitted that his daughter send him texts of the locations of the checkpoints.

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DUI Breath Test Results Can be Influenced by Diet

Recently, I had a case with a person on a low carb diet that was arrested for Driving Under the Influence(DUI). The breath test was high for the amount of alcohol she consumed and I remembered the issue of low carb diets and elevated breath tests results. Low carb diets such as the South Beach diet and Atkins diet can increase the acetone in the body. Why is that important?

The breath test machine may confuse the acetone with alcohol. Therefore, it will give a higher reading on the breath alcohol test. In Attorney Lawrence Taylor's blog post, Dieting Can Cause High Breathalyzer Results, he wrote about the effects of dieting and increased breath alcohol levels:

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone. Studies have concluded that fasting, for example, can increase acetone in the body sufficient to obtain breathalyzer readings of .06% (this is cumulative — that is, the .06% will be added by the machine to any levels actually caused by alcohol or other compounds, so that a true breath alcohol of .03%, for example, would be reported by the machine as .09%).

The importance of this fact is, diet and other factors can influence breath alcohol testing levels. Do breath test machines detect this? I don't know. The Tennessee Bureau of Investigation doesn't even have an owner's manual for the breath test machines that the citizens of the State of Tennessee have paid for.