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Enforcement flaw prompts felony DUI charge dismissal

One should never underestimate the importance of thoroughness in the preparation of the defense of a criminal case. It doesn't matter if the accusation is a relatively minor first-offense for drunk driving or if a history of previous convictions has elevated the issue to a felony DUI charge. Penalties under Tennessee law are strict and mounting a defense that delivers the best possible outcome requires meticulous attention to detail.

A recent court action out of another state offers a case in point. It didn't happen in Tennessee, and given that each state's laws vary, it's hard to say whether it could. Still, it points out what can result when scrupulous care is taken.

It happened in Virginia. A man with a record of two convictions for driving drunk since 2010 was brought to court to face a felony DUI charge. The judge, however, dismissed the charge and ordered the man set free.

The case stemmed from an arrest in September 2012. Police had cited the man for speeding and for reckless driving. They apparently also suspected him of being drunk behind the wheel, but he refused to submit to a breath test. With his previous record, the case was elevated to felony status. So what prompted the dismissal? It was an oversight on the part of the prosecutor.

According to reports, police in the city where the infraction occurred have been in the habit in cases like this of citing a reckless driving statute that would have allowed the pursuit of two separate convictions using the same evidence. And that's what the prosecutor thought had been used in this instance. It was not.

The statute cited was more limiting in what could be prosecuted and the defendant had already pleaded guilty in the case in a lower court. The judge apparently had no choice but to dismiss the felony DUI count.

The prosecutor's oversight, and the apparent catch of that oversight by the defense, is likely what made the difference.

Source: HamptonRoads.com, "Chesapeake judge dismisses 3rd DUI charge after error," Scott Daugherty, The Virginian-Pilot, Feb. 27, 2013

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