Road blocks are used to crack down on impaired drivers. In Tennessee, there are several rules that must be followed in order for a road block to be considered valid.Read More
Where are they?
Here is a chart for the roadblock announcement for December 2014 in Middle Tennessee:
What are they?
Road blocks are used to crack down on impaired drivers. In Tennessee, there are several rules that must be followed in order for a road block to be considered valid. A constitutionally-valid road block must balance the following components:
- Legitimate government interest in seizure
- Gravity of government interest served by seizure
- Severity of intrusion into personal liberty
OK, so what do those components mean? How do they apply?
Let’s put them into a real-world application.
- The government wants impaired drivers off the road.
- The government says this offense is very serious.
- The government argues that checking your sobriety is not a severe intrusion because DUIs are serious.
Do the police have to warn me when they are being set up?
YES! To be a valid road block, police and/or law enforcement must follow certain steps:
- The police have to give a justification for the road block, which means they can’t be just checking to see if you have a valid license.
- The decision to set up the road block must be made in advance by officers not on the scene. This means an officer can’t suspect you of committing a crime and just “set up a quick road block.”
- The officers on the scene can’t decide the procedure for the check, which means that officers on site cannot change the way people are checked simply because they suspect something.
- Police must publish a notice of the road block in the local newspaper. That notice must be published not once, but twice. If the police did not adequately publish notice, all stops would be invalid.
Can the legality of a road block be challenged?
In most cases, the four required steps are followed. However, because the requirements are so strict, a skilled attorney has a significant amount to work with, ensuring that all proper procedures were followed to make sure you were stopped legally.
It isn’t out of the question that a road block could be thrown out entirely. When this happens, every arrest made as a result can potentially be thrown out or dismissed.
The Anatomy of a DUI Arrest.
The Basics of a DUI ArrestRead More
The Anatomy of a DUI Arrest.X
Who is Responsible for Field Sobriety Tests?
- Phase One: Vehicle in Motion
- Phase Two: Personal Contact
- Phase Three: Pre-Arrest Screening
Phase One: Vehicle in Motion
Weaving across lanes
Straddling a lane
Swerving, turning with a wide radius
Almost striking something
Accelerating or decelerating for no apparent reason
Slow speed (under 10 mph under limit)
- Driving in opposing lanes
- Slow response to traffic signals
- Stopping in lane for no reason
- Driving without headlights
- Failure to signal or signal inconsistent with action
- Following too close
- Improper lane change
- Illegal or improper turn
- Driving on other than the designated roadway
- Stopping inappropriately in response to an officer
- Inappropriate or unusual behavior
- Appearing to be impaired
Phase Two: Personal Contact
- Difficulty with motor vehicle controls
- Difficulty exiting vehicle
- Fumbling with driver’s license or registration
- Repeating questions or comments
- Swaying, unsteady or balance problems
- Leaning on vehicle or other object
- Slurred speech
- Slow to respond to officer and/or officer must repeat
- Provides incorrect information and/or changes answers
- Odor of alcoholic beverage from driver
Phase Three: Pre-Arrest Screening
- HGN is 88% accurate in all cases.
- WAT is 79% accurate in all cases.
- OLS is 83% accurate in all cases.
Defending a DUI
Binge Drinking in the United State
How American drinking habits compare.Read More
DUI by prescription drugs
The amount of DUIs caused by prescription drugs is on the rise.Read More
DUI by prescription drugsX
DUI by prescription Drugs
Can you get a DUI while taking your medication?
Yes. When I was a prosecutor, the more prescription drugs became prevalent, the more accidents happened while people were taking this medication. As a criminal defense attorney, I’ve had many clients come in with a DUI charge after taking their medication. The statute in Tennessee calls for a conviction if: the person’s ability to drive is impaired. This does not mean the person has to be “drunk.”
Why does this happen?
Because of several personal reasons many people take Xanax. While Xanax may be a “mainstream” prescription drug, many people don’t know how to take them. Many people don’t follow the directions given by their doctor when taking prescription drugs. We have all seen the labels on prescription drugs that warn of using heavy machinery and/or mixing with alcohol. These are REAL WARNINGS! I have seen many cases where a person was taking a prescription drug for the first time and happened to drink a glass of wine…next thing they remember is handcuffs.
Does the prosecutor sympathize?
Sometimes. When faced with a case involving prescription drugs, a prosecutor will consult a chart known as Winek’s Chart. In Winek’s, the chart lays out what a therapeutic level of drugs in the system is. This therapeutic level is also considered a normal dosage of the drug. If you have a therapeutic level of prescription drugs in your system coupled with a valid prescription, you could get a reduction in your charge. Keep in mind that the prosecutor has the duty to enforce the laws and protect the people of the State.
What if I also have alcohol in my system? – Synergistic Effect
Mixing alcohol with prescription drugs creates what is known as a “synergistic effect.” Independently, alcohol has an effect on the central nervous system. Independently, most prescription drugs have an effect on the central nervous system. When these two are combined, the result is a compounding of the effect on the nervous system. Much like compound interest, the return on what you put in your system can double, triple or quadruple the effect. This “synergistic effect” is what many prosecutors argue to a jury.
So what do I do if charged?
Having a skilled attorney who knows how to address synergistic effects and understands the relationship of prescription drugs to impairment is key. Without an attorney who can break down the argument to a prosecutor or jury, you put your liberty at risk. Contact an attorney with these skills immediately if you are faced with a DUI involving prescription drugs.
DUI? Now What?
DUI? Now What? Here is info on what's ahead.Read More
DUI? Now What?X
DUI. Now What?
Pick up a DUI? Now what? The first thing you can count on is that your life for (at least) the next few months is going to change. You will now have to worry about court dates, attorney’s fees, vacation days to go to court and other small inconveniences that come with a DUI charge. Factor this into your already stressful life, and a DUI charge may seem overwhelming.
As a former DUI prosecutor and a current defense attorney, I have dealt with a multitude of DUI scenarios. To help you keep your sanity and help you get on with your life, I am providing the following guide.
Do I need an Attorney?
Depending on whom you ask, you may get several answers to this question. If you are like most first time DUI offenders, you have never been in the courtroom. Despite how many times you have seen lawyer TV shows, the actual courtroom is nothing close. Having an experienced attorney on your side can help you navigate the foreign waters and give you a sense of security. Having an advocate on your side that knows how best to present your argument will often get you the best deal possible. Having a quality attorney can even get your charge reduced or dismissed.
Tennessee State laws
Tennessee has some of the strictest DUI laws in the country.
If you are convicted of a first offense in Tennessee, you will be facing a one-year loss of license, 48 hours in jail, an ignition interlock device installed in your car, and at least a $350 fine.
Is this your second DUI offense in Tennessee? You are facing at least 45 days in jail, and the fines and jail time only get worse.
Here is a complete list of DUI Penalties.
DUI classes are associated with most DUIs and/or reduced charges. These classes are designed to show the offender the consequences of drunk driving. While most DUI offenders have never faced the criminal system, these classes are designed to scare you. These classes are often done in conjunction with your jail time. Here is a complete list of the cost breakdown.
If you are convicted of a DUI in Tennessee you will lose you license. This suspension lasts for at least 11 months and 29 days. Here is a complete list of DUI Penalties.
Ignition Interlock Device
In Tennessee, due to a recently passed law, you are required to install an ignition interlock device into your car. An ignition interlock device does not allow the car to start unless the driver blows in the device. If the driver’s breath comes in under a .02 BAC, the car will start. Anything over .02 BAC, the car will not start. These devices usually cost around $75.00 to install and charge a monthly fee of $40.00. These fees are assessed to you. Here is a complete list of DUI Penalties.
Drunk Driving Myths
Because DUIs are heavily prosecuted across the county, many myths about DUIs have arisen. Myths I heard as a DUI prosecutor and myths I hear as a criminal defense attorney:
- In Tennessee you can get a DUI expunged.
FALSE. This is simply not the case. If your DUI charge is reduced a to reckless driving charge, then you can possibly get your case expunged. In Tennessee, NO drunk driving charge can be expunged. In fact, if you are arrested for another DUI within 10 years of a prior DUI arrest that resulted in a conviction, that prior DUI conviction will be used to enhance your current DUI charge.
- I don’t have to blow into the machine.
TRUE. But if you choose to not blow into the machine, you will be charged with a violation of implied consent. This results in the loss of your license for one year.
- I can get a restricted license and drive wherever I want.
FALSE. This may have been the case in the past. However, due to a recent law update, all DUI offenders who are convicted must install an ignition interlock device in their car to be allowed to drive within the state.
- If I move to another state, I can get a valid license.
FALSE. States communicate with one another. Even if you are initially able to receive a valid license in one state, there is a great possibility that you will be nailed with a driving on revoked charge.
- I shouldn’t do any tests.
TRUE (most of the time). The less evidence provided to the state for conviction, the less likely they will be able to convict. HOWEVER, this can be a huge risk! When I served as an Assistant District Attorney, I liked it when people didn’t take any tests because it looked like they had something to hide. If you have not had much to drink, take the tests. If you know you have had too much to drink, do not take any tests.
This is not an exhaustive list of myths I have heard, but they are certainly the most common. If you have another myth you answered or have a question regarding DUI in Tennessee, give us a call.
DUI: Blood Testing
The TBI's mistake when testing BACs could result in the dismissal of your case.Read More
DUI: Blood TestingX
In Chattanooga, TN, a young man driving his vehicle had an accident that resulted in the death of his passenger. Upon arriving on the scene, the police officer caught a slight smell of alcohol. Consequently, he administered a forced blood draw to determine whether the driver had alcohol in his system at the time of the accident. Under TN law, law enforcement officials are required to administer a forced blood draw in all accidents involving death. Here, the test results showed that the young man’s blood alcohol concentration (BAC) was .24. The young man and his attorney knew the test results were incorrect. Nevertheless, the young man was charged with Vehicular Homicide. Under TN law, Vehicular Homicide is a class B Felony, and if convicted, the penalty is a minimum of eight years and a maximum of 30 years in prison.
What do you do if you think your BAC is too high?
Fortunately, the young man retained a skilled attorney from the beginning. The attorney advised his client to obtain an extra blood sample for independent testing while at the hospital. The second sample was submitted for independent testing and resulted in a BAC of .01. Clearly, this result is much lower than .24!
What is the reasoning for such a difference?
The young man's attorney took the independent testing result to the District Attorney. Upon review, the District Attorney and the young man’s attorney held a hearing in front of the judge. Called to testify at the hearing were 1) the TBI forensic scientist who tested the first vial of blood and 2) the independent testing facility’s technician who tested the second vial of blood. The evidence showed that the TBI testing technician placed the wrong label on the young man’s vial of blood. In other words, the .24 BAC result was someone else’s blood result entirely! Upon review, the judge found that the TBI result was compromised and could not be used. The District Attorney dismissed the all charges against the young man – including the Vehicular Homicide charge.
Does the TBI make mistakes?
Yes. While the TBI is a board certified and accredited facility, mistakes happen. In this case, the TBI forensic scientist, who has now been fired, did not follow the accepted protocols when administering the BAC tests. Because the young man had an attorney willing to fight for his client, the mistake was discovered. During the BAC testing process, many steps are taken during the chain of custody to ensure quality results. However, that does not guarantee mistakes are not made.
What is the chain of custody?
Chain of custody is the process evidence moves though while being examined to prove the defendant’s innocence or guilt. For evidence to be accurate and available for use in trial or testing, each time the evidence changes hands in the examination process it must be properly documented. In a typical DUI where blood is drawn, the person taking your blood at the hospital (phlebotomist) gives the vials of blood to the arresting officer. The arresting officer labels the vials with the defendant’s information and takes the vials to the TBI for testing. Once at the TBI, the TBI forensic scientist is required to follow certain protocols to ensure the each vial of blood is properly labeled, tested, and corresponds with the appropriate defendant.
In this case, the TBI testing technician did not follow protocol and placed the wrong label on the young man’s vial of blood.
While the TBI forensic scientist in this situation has been fired, that does not erase the damage he did. During his stint at the TBI, he tested around 2,800 blood samples. The result of his error in this man’s case is all 2,800 blood tests he administered have been compromised. While it is unlikely that every test is wrong, there is no real way to be sure which tests are valid and which tests are invalid. Because of this, every test he touched should be challenged.
What does this mean to you?
Have you been charged with an alcohol or drug related crime where blood was taken? The TBI could have made a mistake in your case and you could have your criminal charges dismissed. Contact us today so that we can evaluate your case!
The penalties for a DUI – even if it’s your first offense – are steep.Read More
The penalties for a DUI – even if it’s your first offense – are steep.
As a first-time offender, you face a minimum of 48 hours in jail as well as fines and license revocation. If it’s your fourth offense, you face Class E Felony charges and a year in jail as well as a minimum $3,000 fine and an 8-year license revocation.
What are the penalties?
DUI Costs Chart
|1st Offense||2nd Offense||3rd Offense||4th Offense|
|Jail Time, Minimum||48 Hours*||45 days||120 days||1 year**|
|Jail Time, Maximum||11 mo, 29 days||11 mo, 29 days||11 mo, 29 days|
|1 Year||2 Years
Available after 1 year
|Subj. to Vehicle Seizure/Forfeiture?||No||Yes||Yes||Yes|
|Alcohol/Drug Treatment Program?||At judge's discretion||Yes||Yes||Yes|
|Other Penalties||Pay restitution***||Pay restitution***||Class E Felony|
* If BAC is .20 or greater, minimum is 7 consecutive days
** 365 days with minimum 150 consecutive days
*** Pay restitution to any person suffering physical injury or personal loss
What is an Ignition Interlock Device?
An ignition interlock device requires you to breathe into a device, similar to a breath test, to measure your blood alcohol content (BAC) before your car will start.
At any point in the DUI process, whether it’s your first offense or your fourth, a judge can require you to have an ignition interlock device installed in your vehicle at your expense. The minimum first year costs of a device can exceed $1,000.
If you’ve had two DUI convictions within five years, the device will be required for six months after the reinstatement of your license.
What if there is a child involved or someone gets hurt?
If you are involved in a DUI that includes child endangerment, vehicular assault or vehicular homicide, you face additional severe penalties, including felony charges and extended jail time.
Field Sobriety Tests
Most people have heard the term “field sobriety test” before, but not many actually understand what’s being tested or how they work.Read More
Field Sobriety TestsX
What are they? Why are they given?
Most people have heard the term “field sobriety test” before, but not many actually understand what’s being tested or how they work.
First, the term “field sobriety test” is actually a misnomer. The proper term is Field Sobriety Tasks, often abbreviated FSTs.
There are three tasks that are always given: HGN, the One Leg Stand, and the Walk and Turn.
When given by a trained officer under perfect circumstances, the tests are very accurate. Because of this, when a person is arrested for DUI, he or she needs a skilled attorney.
What is HGN?
The first of the field sobriety tasks is HGN, or horizontal gaze nystagmus. HGN is the involuntary jerking of the eyes during smooth tracking of an object (such as following a pen) due to the effects of intoxication.
In Tennessee, this task is inadmissible in court, meaning officers cannot testify about HGN while on the stand. That doesn’t mean, however, that it doesn’t happen. A skilled attorney knows how to ensure this evidence doesn’t reach the courtroom.
What is the Walk and Turn?
It’s the second of the field sobriety tasks, which requires the person being tested to place one foot in front of the other with one heel touching the other toe. The person being tested is asked to stay in that position while being given instructions. What most people don’t realize is that at this point, the task has already begun.
After the instruction phase, the officer asks that the person being tested place one foot in front of the other, touching heel to toe, while walking down a straight line. During this time, the person being tested must keep his or her hands to the side and not step off-line.
After nine steps, the person being tested will be asked to come back nine steps after a turn with a series of small steps. This series of small steps during the turn can often be very confusing. An experienced attorney will be able to make that distinction in court.
What is the One Leg Stand?
The third and final field sobriety task, the One Leg Stand requires the person being tested to place a foot in front of him/her and hold it there, six inches off the ground. While the toe is pointed, the person must count aloud to 30. During this test, the officer is looking for numerous clues, including whether the person puts his/her foot down, sways, or improperly counts, among other things.
Are there other tasks?
There can be, yes. There are a number of alternative tasks that are routinely given. These tasks, however, are not yet part of the standardized field sobriety tasks as there have not been enough studies to validate the findings. These tests can be given little weight in the courtroom by a skilled attorney.
What happens next?
Upon completion of these tasks, the decision on whether or not to arrest the person being tested will be made. If you are arrested, the next step is a reading of Tennessee’s Implied Consent Statute, and you will be faced with a decision whether or not to submit to a test.
Implied Consent means that any time an officer has probable cause to believe a driver is under the influence, the officer may request the driver to submit to a test. It may be a blood test, or a breath test, or both.Read More
What is it? When did I agree to it?
Implied Consent means that any time an officer has probable cause to believe a driver is under the influence, the officer may request the driver to submit to a test. It may be a blood test, or a breath test, or both.
Most people don’t realize it, but when you fill out the paperwork to receive your driver’s license in Tennessee, you agree to Implied Consent.
You can refuse a test, but there are consequences. Under Tennessee Code Annotated Section 55-10-406, you can lose your driver’s license for a year if the police officer can testify the reasons why he or she asked for a test.
Doesn’t the officer have to prove I refused beyond all reasonable doubt?
No. A violation of the Implied Consent Statute is considered a civil violation. That means the officer only has to prove you refused by a preponderance of evidence, which means it’s not as hard for the officer to prove. Know that if you refuse a test during a DUI investigation, there is a likelihood that you will lose your license.
Can I do jail time for Implied Consent?
Sometimes. Most Implied Consent cases in Tennessee are civil in nature, which means no jail time. However, if you are on probation for DUI or your driver’s license has been revoked for a previous violation for Implied Consent, you could be looking at up to five days in jail. In cases like these, Implied Consent is considered a criminal violation.
Blood Test Results
Can I get my blood test results?Read More
Blood Test ResultsX
Can I get my blood test results?
Yes. There is a section of the Tennessee Code Annotated that requires the Tennessee Bureau of Investigation (TBI) to provide you with a result. TCA Section 55-10-409(b) states: “The results of the test shall be made available to the person tested, upon request.”
How do I make a request?
You can write the TBI at:
Tennessee Bureau of Investigation
901 R.S. Gass Blvd
Nashville, TN 37216
If you choose to write the TBI, you will need to verify your identity. Provide a copy of your case number, a copy of your photo ID and another form of ID, and where to send the results.
What happens after I make a request?
You wait. The TBI does a lot of blood testing. For example, in 2010 alone, the TBI tested 51,297 different samples. More than 26,000 of those were performed in Nashville alone. Obviously, that is a lot of tests. You will have to be patient.
When a test is done for alcohol only, the turnaround can be around six weeks. The turnaround for tests including drugs such as marijuana, cocaine, and zolpidem can take as long as 36 weeks – or nine months. The waiting is often the hardest part.
Is there anything I can do to speed up the process?
While you can follow the steps above and obtain a blood result on your own, an attorney often can obtain results more quickly than a private citizen simply because of his or her relationship with the TBI and/or the District Attorney’s office in your area.
An attorney can also help you interpret the results once you see them. The results of a TBI sample can be challenged in several ways. An experienced DUI attorney will know where to attack.
What is a No Refusal Weekend?Read More
What is a No Refusal Weekend?
Tennessee has adopted a strategy known as the No Refusal Weekend. It’s a coordinated effort by the Governor’s Highway Safety office and local law enforcement officials. The stated objective of these weekends is to check and police sobriety on the highways and roads of Tennessee.
In 2013, Tennessee conducted a No Refusal Weekend in 16 counties over a five-day period surrounding the New Year's Eve holiday. Here is the listing of where: (http://www.tn.gov/safety/thp/checkpoints/dec2013_checkpoints.pdf) You can read the story here.
Is it just another road block or sobriety checkpoint?
Not exactly. During a normal road block or sobriety checkpoint, an officer can ask you to perform several field sobriety tasks. If the officer has probable cause to believe you are under the influence, the officer may ask you to submit to a blood test. This is called Implied Consent, and you agreed to it when you filled out the paperwork to receive your driver’s license.
You can refuse to the blood test, but there are consequences that could involve loss of your license for one year.
OK, so what makes No Refusal different?
A magistrate is a court-approved officer of the court who can sign warrants. During a No Refusal Weekend, a magistrate is on-site.
If you refuse to a blood test under Implied Consent, the officer is required by law to obtain a search warrant. This can be difficult at times, because magistrates are not always readily available. But because the magistrate to authorize the search warrant is on-site, the warrant can be authorized immediately and you will be required to submit to a blood test via the warrant.
So, even if you refuse the test, you will still be required to submit to one via warrant, thus the name “No Refusal.”
In addition, No Refusal Weekend means more officers on patrol and, in some cases, Assistant District Attorneys on-site for road blocks and checkpoints as well.
The best way to avoid road blocks, checkpoints and No Refusal? Always call a designated driver.
Being charged with DUI isn’t just a legal issue. It’s a financial one as well.Read More
Being charged with DUI isn’t just a legal issue. It’s a financial one as well.
The costs associated with a DUI offense in Tennessee add up extremely quickly. The majority of the costs come from fines and court fees, but there are numerous associated costs from probation, DUI school and other fees.
The costs below are estimated from a DUI pled in General Sessions in Davidson County.
This is my first DUI. How much can I expect to pay?
The costs for a first-time DUI offender can exceed well past $1,000.
- 48-Hour Jail Fee: $650.00
- 1st Offense DUI Fine: $350.00
- 12-Month Probation Fee: $466.00
- Alcohol Safety School: $270.00
- Restricted License Fee: $67.00
- TOTAL: $1,803.00
And, don’t forget, that doesn’t include an ignition interlock device, which a judge could order you to install in your vehicle at your expense, even on your first offense. Also worth taking into consideration is any restitution that you will likely pay to any other person involved suffering personal injury or loss.
It also doesn’t include any associated SR-22 costs. SR-22 is a special type of insurance premium you will have to pay upon obtaining your restricted license.
What other fees could I face?
There are a number of additional fees depending on your particular circumstances.
- $44 – For each additional day in jail beyond the 48-hour jail fee.
- $35 – A pre-trial release fee.
- $17.50 – The fee if you refused a breath test on-site.
- $132 – A public service work fee, if you’re assigned public service as part of your sentence.
Your DUI minimum fine and probation charges also increase depending on the number of offenses you have on your record and your sentence, respectively.
DUI Penalties - Special Cases
Vehicular Assault, Child Endangerment, Vehicular Homicide, ...Read More
DUI Penalties - Special CasesX
Specifics: Serious injury to another person by a DUI driver [39-13-106]
- Class D Felony
- License revocation for 1-5 years, depending on number of prior offenses
- No restricted license available
- Jail time ranging from 2-12 years
- Fines and court costs
Specifics: DUI with passenger under 18 years old, child suffers serious injury [55-10-403]
- Class D Felony
- Jail time ranging from 2-12 years
- License revocation
Specifics: DUI with passenger under 18 years old, child death involved
- Class B Felony
- Jail time ranging from 8-30 years
- License revocation
Note: Actual sentence length will depend on a number of factors, including the defendant’s previous criminal record.
Specifics: Fatal crash caused by DUI with .08 BAC or higher [39-13-213]
- Class B Felony
- License revocation for 3-10 years
- No restricted license available
Aggravated Vehicular Homicide while Driving Intoxicated
Specifics: If the person charged has any of the following, the charge can increase from Vehicular Homicide to an Aggravated Vehicular Homicide [39-13-218]:
- Two or more prior DUI convictions, two or more prior vehicular assault convictions, or any combination of the two;
- One prior vehicular homicide;
- A Blood Alcohol Content (BAC) of .20 or greater at the time of the vehicular assault and one prior DUI or vehicular assault offense.
- Class A Felony