Nashville Criminal Law Report : Nashville DUI Lawyer & Attorney : Rob McKinney Law Firm : TN Criminal Defense, Domestic Violence : Cheatham, Davidson, Montgomery Counties

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.

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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".

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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".

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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.

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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.

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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.

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 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.

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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.

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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.

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 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.

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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.

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 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.

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  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.

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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.

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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.

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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.

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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.

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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.

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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.

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  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 technology – SCRAMx 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 monitoring – SCRAMx 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.

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 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.

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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.

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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.

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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.

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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 ;

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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?

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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?

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   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.

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

.

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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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.

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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.

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 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.

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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.

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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.

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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.

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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.

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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.

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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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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.

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 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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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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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.

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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 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.

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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.

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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.

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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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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.

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