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

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.

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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 .

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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. 

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 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 .

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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.

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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.

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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.

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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.

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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 ?

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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.

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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.

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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".

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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.

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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.

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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.

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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.

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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 .

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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.

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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.

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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.

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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.

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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.

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 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 .

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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.

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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.

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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.

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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. 

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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.

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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.

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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.

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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.

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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.

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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.

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 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 ;

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    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.

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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.

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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.

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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.

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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.

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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.

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  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.

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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.

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  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.

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   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 .

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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.

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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.

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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.

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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.

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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.

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   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.

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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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A

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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