That's perhaps one reason why in Nashville and other jurisdictions in Tennessee, the judges who are responsible for meting out penalties for convictions of driving under the influence, whether it's for a misdemeanor offense or a felony DUI resulting from four convictions or more, are granted a certain amount of latitude.
]]> Not everyone is aware that such leeway exists when they are brought before the bench, which is why anyone facing a drunk driving charge of any kind should always engage the help of an experienced attorney. It may be possible to prevent conviction in the best of circumstances. In other cases, the opportunity may exist to mitigate the penalties with the right request.We are prompted to highlight this for our readers in the wake of a recent two-part report on one of our local Nashville TV stations. The show set up the piece the first night by posing the provocative questions: Why are there so many stories of drivers with multiple DUIs still being on the road? Who’s to blame for this? Are punishments fitting the crime?
The next installment offers the suggestion that perhaps too-soft judges are to blame. But the top DUI judge in Davidson County offers the observation that a simple crime and punishment equation doesn’t really address the issue. He says massive repeat offenders have a real problem and that real justice for them depends not just holding them accountable, but getting them help.
The report then goes on to offer an example out of Williamson County of how this mindset can play out. Williamson has a DUI Court Program under which felony DUI offenders may see somewhat less jail time, bolstered by mandatory in- and out-patient treatment for alcoholism. The judge who runs the program notes that of 30 people who have been through the program, only one has been arrested again.
Such programs are not available in every Tennessee jurisdiction. But alternatives may exist, and attorneys with experience in handling DUI cases should know how to seek them out if appropriate.
Source: WZTV-TV, “Drinking & Still Driving –- Part 1,” Nick Paranjape, May 9, 2013; “Drinking & Still Driving –- Part 2,” Nick Paranjape, May 10, 2013
]]>That goes for any crime, including something as seemingly mundane as drunk driving charges. And it may be particularly important to remember if a person is facing DUI charges and they have one or more convictions for DUI already on their record.
]]> Another (notable perhaps because it has been so often pronounced as part of popular prime time television crime dramas) is that you have the right to remain silent. We suspect that if you walked up to any stranger on the street and asked them to quickly name one right, they likely would blurt out, “The right to remain silent.”This bit of knowledge appears to sadly have been left on the side of the road during one recent arrest in Rogersville. Authorities there say they took a 36-year-old man into custody last weekend on suspicion of driving drunk. The arresting officer says those suspicions were supported by his observations that the man smelled of alcohol, appeared very unsteady on his feet and didn’t do well on field sobriety tests.
But what may be potentially most damaging in this case is the officer’s claim that when the man was asked, he said he had had “12, 14, 24 or 48 beers” prior to his being stopped.
This man is now facing a charge of DUI 5th offense. Additional charges against him include driving on a revoked license 3rd offense and violation of Tennessee’s implied consent law. He is alleged to have refused to submit to a breath test at the time of his arrest.
Source: Kingsport Times-News, “How many beers? Hawkins County man tells police '12, 14, 24 or 48',” Jeff Bobo, May 6, 2013
]]>The novel used to be a staple of the educational curriculum in much of the country. We don't know if it is anymore. If it isn't, it's probably because the social conventions that made it once so powerful aren't quite as strong today as they were 150 years ago.
The notion of public shaming has not lost its proponents as a general concept, though. For the past eight years in Tennessee it's been a staple of punishment meted out to first-time drunk driving offenders.
]]> Under the law, those convicted of driving under the influence for the first time face jail time, loss of license, a fine, some remedial education around alcohol abuse and probation. In addition, they are sentenced to three, eight-hour community service tours doing roadside litter patrol wearing bright vests that say "I am a drunk driver."All combined, it presents a good case for why a person facing drunk driving charges should be working with an experienced attorney to fight them.
Ask a defendant about the value of this so-called "Shaming Law" and you're likely to hear that it serves its intended purpose well. But many law enforcement officials aren't convinced it's worth it and they're calling on Tennessee lawmakers to consider finding other ways to stop drunk driving.
They point to the number of repeat offenders as an indication that shaming doesn't seem to work. They also say that the mandated method costs too much. At a time when budgets are too tight, the cost of busing and supervising the offenders during their work details.
Reports we've seen about the issue haven't included comments from lawmakers on the subject, so we don't know whether the proposals are likely to gain any traction at the capital.
Source: WKRN-TV, "DUI 'Shaming Law' has officials questioning its effectiveness," Nadia Ramdass, April 29, 2013
]]>Police records show that the 41-year-old musician was taken into custody late Friday after the accident on Interstate 40. Officials allege that he was driving while impaired, at high speed, when his car clipped a pickup truck. They say the truck left the road and its driver, a 47-year-old man, was killed in the crash.
]]> Investigators recorded that Harrell seemed confused about what had happened after the wreck. And while breath tests didn't indicate the presence of any alcohol in his system, officials say Harrell didn't do well on field sobriety tests. Later, he refused to give blood voluntarily, so police say they obtained a sample under court order.The formal charges now leveled against Harrell in clued vehicular homicide by intoxication and unlawful possession of a controlled substance. He's also accused of violating Tennessee's implied consent law.
These are clearly serious charges and it appears that Harrell is not taking them lightly. He has an attorney and the fact that he has placed himself into treatment could be helpful to his case as it works its way through the legal system.
It must be noted though that his actions are not, and must not be taken as, an admission of any guilt. That is something that can only be determined in a court of law. It is not enough for prosecutors to show that a suspect in a fatal accident was under the influence of drugs or alcohol. They must also prove that it was the cause of the accident and death.
Source: The Huffington Post, "Todd Harrell Enters Rehab: 3 Doors Down Bassist In Treatment After Arrest In Fatal Crash," Sheila Burke, April 24, 2013
]]>One of the latest cases to get this particular examination dealt with the question of when police can conduct a warrantless draw of blood to test the blood alcohol content of a drunk driving suspect. And a ruling that came down this week from the U.S. Supreme Court appears to put some additional restrictions on authorities.
]]> The gist of the decision, supported by five of the nine justices, declares that the issue has to be decided on a case-by-case basis. But the majority of the court said that because we live in a technological age of nearly instantaneous communication, getting a warrant is a lot easier for police. The suggestion seems to be that investigators owe it to the rights of the individual to do all they can to seek a warrant before deciding to collect blood from suspects.The case stemmed from a police stop of a man Missouri. Authorities had pulled him over for speeding and suspected he had been driving drunk. Field sobriety tests were administered, which the man reportedly did poorly on. After being arrested, the man refused to submit to a breath test or a blood test, but police took him to a hospital and had blood drawn anyway and the test showed the man's BAC was over the legal limit.
Courts in Missouri suppressed the results, however, saying police should have gotten a warrant before taking the blood. They rejected police claims that they were simply trying to gather potential evidence before alcohol had left the man's system.
The Supreme Court's majority opinion affirms that the right of the individual against unwarranted government search and seizure takes precedence, especially in a time when technology makes getting a warrant so much easier than in the past.
Source: The New York Times, "Court Says Police Need Warrant for Blood Test," Adam Liptak, April 17, 2013
A second DUI conviction can mean the loss of your vehicle. It can also mean jail time. Typically, individuals arrested and charged with suspected drunk driving or driving while impaired may be required to post a bond in order to gain their release from incarceration until their court date. But rarely are they as steep as was imposed recently by a court in another state.
]]> The suspect being arraigned in the Idaho case was being charged with felony DUI. He had six prior convictions for driving under the influence dating back to 1996. Under that state's laws, the first three were recorded as misdemeanors. The next three went on the man's record as felonies and resulted in prison terms.This time, the prosecution asked the court to hold the defendant on a bond of $1 million. Coloring the plea from officials was the claim that in addition to allegedly being drunk, the suspect had to be chased by authorities and was caught after running into a power pole and a fence.
The district attorney said she'd never asked for such a high bond in such a case. And the magistrate said he'd never granted such a high bond for any crime. But he said in this case the defendant clearly needed to be kept off the streets.
The defendant was scheduled to make an appearance for a preliminary hearing earlier this month, but there's no word at the time this is written as to whether that was held or what the outcome might have been.
Idaho is not Tennessee, and it's not clear that what happened there would happen here. But what is common in both states is that governments are under pressure to be aggressive in prosecuting suspected DUI. That being the case, individuals facing such charges need to be prepared to mount an equally aggressive defense.
Source: Twin Falls Times-News, "Twin Falls Man Gets $1M Bond on 7th DUI Charge, Eluding Deputies," Alison Gene Smith, March 27, 2013
The country tried to ban alcohol with a constitutional amendment and then repealed the change about 14 years later when it became clear it wasn't working. In more recent years, the legal countermeasures have become more focused on specific behaviors through statutes criminalizing driving under the influence or driving while impaired.
]]> The drive to prevent such activities has resulted in laws that impose penalties on drivers suspected of DUI or DWI before they have even been formally charged, putting their rights at risk. That's one of the key reasons why it's so important for those facing such charges to be in touch with an attorney immediately.The case of a Metro Nashville police officer serves as an example. The veteran officer was cited late last week after the car he was driving crashed into a utility pole in Sumner County. In the days since his arrest, the officer has been decommissioned from his position and now faces charges of DUI. He suffered some injuries in the crash and spent a couple of days in the hospital.
According to investigating officials, the off-duty officer smelled of alcohol at the scene of the crash. They say that despite the state's implied consent law, the driver refused to submit to breath and blood alcohol tests. He likely is aware from his experience as an officer that agreeing to such tests typically isn't in the individual's best legal interests.
A news report about the incident notes that police booked the officer on additional charges related to his refusing the tests and because they claimed to have found four weapons in his car.
The current disposition of the case isn't known. Hopefully this man is not going through the process without legal representation.
Source: WTVF-TV, "Metro Officer Decommissioned, Charged With DUI," April 1, 2013
]]>The high court recently agreed to hear arguments over whether police acted within the scope of their authority when they arrested the suspect in question, even though he had passed six field sobriety tests. The court's eventual decision could provide some clear guidance on how far police can depend on field sobriety tests when little or no other evidence of drunk driving is present.
]]> In the case in question, the man's attorney successfully argued before a Sevier County judge after his arrest that police had had the right to stop his client when he drove on the wrong side of the road. He acknowledged they also did nothing wrong by asking him to undergo the field sobriety tests. But, he says they went over the line when, after he had passed all six tests administered, they arrested him and took a blood-alcohol test.After noting that he couldn't have done any better himself, sober, the judge threw out the blood-alcohol test results, even though they showed the man was legally over the limit. He then dismissed the charges. He said even the stop for wrong-way driving wasn't sufficient because there was road construction in the area and other drivers, confused by it, had done the same thing.
The same argument the attorney for the defendant has used before previous appeals courts is likely to be used again. He says the state and police case amounts to saying that field sobriety tests are valid in assessing if a person is possibly impaired, but that they shouldn't be bound by the results if a person passes them.
Acknowledging that authorities have an obligation to enforce the law, it must be remembered that the right to due process and the assumption of innocence of the individual is a matter of constitutional primacy.
Source: NWTN Today, "Tennessee Supreme Court agrees to hear DUI test case," Sheila Burke, AP, March 26, 2103
The help of an attorney was definitely in evidence in the case of Tennessee Titans wide receiver Kenny Britt. He had been facing federal charges of driving under the influence, but today a U.S. magistrate found Britt not guilty of DUI. He was found guilty of refusing to take a breath test and violating Kentucky's implied consent law, but no penalty was issued for that.
]]> Many readers may know that Britt was taken into custody on suspicion of DUI back in July as he was trying to enter Fort Campbell on the Tennessee-Kentucky state line. He tried to enter through a gate on the Kentucky side of the base and was stopped by military police. At the time of the incident it wasn't clear why Britt was looking to enter the facility, but he reportedly had passengers in his vehicle, which may explain it.According to the MPs, Britt was seen changing lanes a couple of times before he got to the gate. He was subjected to three field sobriety tests, which experienced attorneys know are notoriously unreliable. Later, after being taken to a police station on the base, he refused to take a Breathalyzer test.
In a five-hour trial at the base yesterday, the magistrate essentially dismissed the evidence of the lane changes saying such driving could be reasonable. He also noted that there was some discrepancy over the results of the field sobriety tests. It was noted that Britt had written on the implied consent form that he had refused to take the breath test because he had passed those field tests.
Britt made no comment to reporters after the decision.
Source: The Associated Press, "CORRECTION: TITANS-BRITT STORY," Teresa M. Walker, March 20, 2013
The value of having adequate legal representation extends beyond the presentation of a solid case before the court. It also offers a level of security against the kind of thing that happened to one man. His case played out in another state, but it could just as well have occurred in Tennessee.
]]> The man, 58, was taken into custody on suspicion of driving while intoxicated and receiving a stolen vehicle back in 2005. He was thrown in jail and, according to his subsequent lawsuit, essentially forgotten for two years. Not only was he incarcerated, but he was left in solitary confinement and was never brought to trial. While held, he was denied dental care and developed bedsores. He also now suffers from lung cancer.On his release in 2007, the charges against him were dismissed. He filed a civil rights violation lawsuit and won a $22 million award. After an appeal by the county that was responsible for his situation, the amount was lowered to $15 million. The man recently received $6 million of the settlement. The rest will be paid to him in installments.
Authorities apparently took the measure of putting the man in solitary confinement because he has a history of mental illness. His attorney says that condition was only made worse by the maltreatment he suffered.
This case is clearly represents an extreme. Still, it did happen and serves to reinforce why people facing DWI or any other charge in Tennessee should be working with an attorney.
Source: Daily Mail, "Cancer-stricken man, 58, who was kept in solitary confinement for TWO YEARS with no trial after DWI arrest is finally awarded $15m after prison appealed payout," Rachel Quigley and Louise Boyle, March 6, 2013
]]>Members of the Bradley County Commission in Cleveland unanimously approved a resolution calling on the General Assembly to pass the bill dubbed Dustin's Law, and for the governor to sign the measure into law. It's one more piece of evidence that acknowledges the outrage society feels about drunk driving and the need for someone charged under the state's drunk driving laws to enlist the help of an experienced attorney.
]]> Many readers may be familiar with the background on the bill. It's named for Dustin Ledford who was killed in July 2010 in a head-on collision on a Tennessee highway. He was 24. The 29-year-old woman who was arrested and eventually convicted for driving down the wrong side of the road and causing the accident reportedly had three times the legal limit of alcohol in her system and drugs.Under current state law, a person cannot be charged with aggravated vehicular homicide in circumstances where the suspect doesn't have a prior DUI conviction. Under the new law, a first-time offender causing a fatal accident could be charged with aggravated vehicular homicide if their blood alcohol concentration measures 0.20 percent or higher, or if the BAC level is 0.08 percent and a presence of methamphetamine. The penalty for conviction would also essentially double from the current 8 to 12 years in prison.
At last check, bills were progressing through both the Tennessee House and Senate and are currently before various committees.
This post is offered not as a position piece on the merits of the bill. Rather, it is simply a reminder that pressures to counter drunk driving are rising. When that happens, individuals, who are supposed to be presumed innocent until proven guilty, often are painted with a broad brush of guilt before they've had their day in court. That being the case, it's all the more important for those facing DUI-related vehicular homicide charges to have the benefit of experienced counsel.
Sources: The Chattanoogan, "Bradley County Commission Pass Resolution To Support Dustin's Law," Tonya Brantley, March 5, 2013; WTVC-TV, "Mother Lobbies For 'Dustin's Law'," Jerry Askin, Jan. 28, 2013
]]>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
]]>The crime of drunk driving is like any other, however. It requires a conviction to warrant punishment. The consequences for conviction can be so severe and affect one's life so much that the allegations need to be faced with a strong defense. Achieving the best possible outcome is most likely to occur with the help of experienced legal counsel.
]]> While anyone accused of a crime is supposed to be granted the presumption of innocence, that's hard to guarantee when word of those accusations are made public. And, when it comes to DUI allegations, authorities are not above leveraging the potential power of public opinion to enhance their enforcement efforts. The latest example of this may be seen in an announcement out of Clarksville.Police in that city have started a new program that holds up individuals who have been arrested on suspicion of driving under the influence to public scrutiny before they have ever had their day in court. Every day, police release the names and mug shots of people who were taken into custody the day before. The information on ten people was released to area media after the recent Presidents' Day holiday.
The tactic, amounting to public ridicule, is held out by authorities as a way to make people think twice before choosing to drink and drive. While that intent may be positive, some legal experts might legitimately offer the view that such publicity is prejudicial to the accused -- preventing them from receiving a fair trial.
Source: WTVF-TV, "New Plan to Crackdown On DUI In Clarksville," Adam Ghassemi, Feb. 19, 2013
]]>Travis was arrested back in August of last year on suspicion of DWI. According to the official records, he was picked up after he crashed his car. Authorities in Texas claimed he was not dressed and was confrontational when he was stopped. They said blood alcohol tests indicated Travis' blood alcohol content was nearly three times what's allowed.
]]> Earlier this month, Travis pleaded guilty to a misdemeanor DWI charge. Reports indicate that he could have gotten jail time and a fine up to $4,000. With his guilty plea, though, he will face no time behind bars, unless he violates probation, and he's been fined $2,000.Travis has taken a pledge of abstinence from alcohol after several run-ins with police. As part of his sentence on the misdemeanor conviction, he's slated to go through a 30-day rehabilitation program.
Related to the August DWI, and still not resolved, is a misdemeanor charge of assault. Reports are that he'll plead guilty or no contest when he appears in court and avoid jail time as a result.
Blood alcohol testing is one of the common tools authorities use in their efforts to enforce DWI and driving under the influence laws. The methods and technologies they use are not foolproof. Questioning the results of such tests is a legitimate step for anyone facing charges to take in the course of formulating a viable defense and achieving the best outcome possible.
Source: Taste of Country, "Randy Travis Sentenced in DWI Case," Cory Stromblad, Feb. 1, 2013
]]>In Tennessee, field sobriety tests have been successfully challenged in many cases. The key is often having an experienced attorney at the helm of the defense effort when the matter reaches the court. Considering that the consequences of a DUI conviction can sometimes undermine a person's entire life, when clear questions about test results are unanswered, it may be worth pressing a legal challenge higher up the court system ladder.
]]> Three defendants are doing that right now in Florida. Their cases received a hearing before the Florida Supreme Court this week. The three are attempting to get court-ordered access to computer software used to control breath testing machines. Their suspicion is that a review of the program will bolster their claim that the readings from the machines aren't exact. If the justices grant the request, it could affect DUI cases across the state.The three defendants had succeeded in winning a ruling from a judge ordering the manufacturer of the Ontoxilyzer 8000 to provide the software, but a circuit appeals court reversed the order. The defendants then elevated the issue to the state's high court.
Setting the stage for the appeal is the fact that several circuit courts in the state have split on the issue when faced with similar requests.
The thing to remember is that while laws are written and documented, they are regularly undergoing revision by virtue of challenges like the ones in this case. That's why it's important for anyone facing DUI charges based on field sobriety tests should seek out an experienced attorney for consultation.
Source: Claims Journal, "Florida Justices Hearing Breath Testing Machine Case," Associated Press, Feb. 6, 2013
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