NTSB Pushes States To Lower Legal Alcohol Limit

The National Transportation Safety Board took a surprising step earlier this week when it recommended that the all states, including Tennessee, lower the threshold for what constitutes impaired driving.

Currently, Tennessee state law says that drivers who are operating a motor vehicle with a blood alcohol concentration greater than 0.08 percent are impaired. This number is supposed to indicate the level at which the majority of drivers are intoxicated enough that they cannot safely operate a vehicle. Every state in the country follows this rule, as do many other countries around the world, including neighboring Canada, which also deems those with a BAC above 0.08 legally impaired.

The NTSB has now said that, as part of its larger push to completely eliminate incidents of drunk driving in the U.S., all states should lower the legal limit to 0.05 percent. Though some groups, such as Mothers Against Drunk Driving, have come out in support of the recommendation, there are significant concerns that should be taken into consideration by lawmakers facing a possible change. First, lowering the number will likely lead to many hundreds or thousands more drunk driving arrests each year. Already huge numbers of Tennesseans have DUI convictions on their records, expensive and embarrassing mistakes that surface even years later in school applications and job interviews. Whether it would do anyone any good to flood the criminal justice system with more impaired drivers is a question worth considering.

Another concern is whether there would truly be a substantial benefit to making the change. The NTSB claims that by lowering the BAC from 0.08 to 0.05, between 500 and 800 lives would be saved each year by getting those who have had a few drinks off the roadways. The problem is that alcohol is a relative thing and by lowering the legal limit even further, the NTSB is ignoring that fact that some drivers may be convicted of a crime who are actually perfectly safe to operate a vehicle. Factors such as age, weight, height and gender can dramatically influence how alcohol affects a person and the truth is that even at 0.05 percent, some drivers might demonstrate some signs of impairment. However, that does not mean that the number must be lowered across the board for all other drivers.

In terms of real life behaviors, the decrease recommend by the NTSB will lead to big changes. Currently, a 180-pound man can have three drinks in an hour and be under the existing 0.08 BAC limit. Under the new rules, that same man would only be able to have one to two drinks in an hour to avoid being found legally impaired. If such a change were implemented in Tennessee it would likely mean radical shifts in people’s behavior and take some time to learn what kind of social drinking is legally acceptable.

Read: “NTSB recommends lowering blood alcohol level that constitutes drunken driving,” by Tom Costello, published at NBCNews.com.

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Tennessee Supreme Court Says Community Caretaking Not An Excuse For Police Searches Lacking Probable Cause

The Tennessee Supreme Court recently issued an important opinion, State of Tennessee v. James David Moats, which upheld a ruling out of the Court of Criminal Appeals. The opinion threw out the conviction of James David Moats who was found guilty for driving under the influence after an officer found Moats sitting in a grocery store parking lot.

The incident occured in Etowah, TN when an officer was on a routine patrol at 2 in the morning. The officer saw Moats sitting in the driver’s seat of his pick-up truck in an area that the officer described as being known for drug activity. The officer continued on her patrol route and returned several minutes later to find Moats in the same position. That’s when the officer pulled up behind the pick-up truck and flashed the blue lights on her car. The officer then recorded Moats’ license plate number and called it in to dispatch to be checked out.

When the officer approached Moats’ window, she noticed an open beer car in a cup holder and also observed a set of keys in the ignition to the truck. This prompted the officer to administer a field sobriety test and resulted in Moats being taken into custody.

The case progressed to a trial where the arresting officer admitted on the stand that she never witnessed Moats engage in any illegal activity. Moreover, she acknowledged that once she flashed her blue lights, Moats was no longer free to leave the scene. The trial court judge found that it was acceptable for the officer to approach the vehicle and ask to see identification and proof of registration despite a lack of reasonable suspicion of criminal activity because the officer was acting under a doctrine known as community caretaking.

Community caretaking refers to a kind of behavior that takes place between officers and citizens that is consensual and unrelated to the investigation of any specific criminal activity. Essentially, community caretaking occurs when officers are merely informally talking to citizens, not investigating a crime.

The case was appealed and the Court of Criminal Appeals found that the trial court was incorrect in supporting the officer’s actions. The Court found that the encounter with Moats was not voluntary and therefore the encounter should be seen as investigative rather than consensual given that Moats was not free to leave. That means the community caretaking doctrine could not be used to justify the officer’s actions that night.

The case finally made its way to the Tennessee Supreme Court, which agreed with the Court of Criminal Appeals. The Supreme Court held that though there is no categorical rule that once an officer turns on their lights constitutional protections then go into effect, a reasonable view of the circumstances that night show that the officer used her blue lights as a demonstration of her authority. This show of authority was done without any probable cause or reasonable belief that a crime had occurred.

The Supreme Court went on to say that while the community caretaking role of an officer is an important one, it must be exercised in a strictly consensual way. An officer cannot claim to be engaged in an informal conversation with a citizen if they have simultaneously made a show of authority which would lead that person to believe they were required to stay.

The dissenting justices believed the majority was wrong in overturning the trial court’s decision. They instead believed that there should be a special community caretaking exception to the Fourth Amendment’s requirement that officers have probable cause before engaging in a search and seizure.

To read the full opinion, click here.

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31 DUI arrests reported for New Year's Eve in 16 counties around Chattanooga

The Times Free Press reports today that 31 DUI arrests occurred over New Years as part of the "No Refusal" enhanced enforcement.

The Tennessee Highway Patrol arrested 96 people on suspicion of impaired driving in the 16 counties that participated in "No Refusal" enforcement efforts over the New Year's holiday.

In Hamilton County, 31 were arrested for DUI suspicion and one individual was compelled to take a blood test, according to a THP news release. A total of 48 seat belt citations were issued in Hamilton County.

Twenty-five bar checks were conducted where troopers visited bars in Hamilton County to remind patrons to be careful on the roadway.

"It's awareness and promoting safety," THP Lt. John Harmon of the Chattanooga district said, when asked about the goal of sobriety checkpoints.

The use of the THP hotline, *847, skyrocketed over the holiday period. For the entire Chattanooga 12-county district, 310 calls were received. During the same time period over an extended weekend in December, only 58 calls were received, Harmon said.

The "No Refusal" law allows officers to seek search warrants for blood samples in cases where impaired driving is suspected but suspects refuse to take a Breathalyzer test.

This year's enforcement period ran from 6 p.m. Dec. 28 through New Year's Day. In Hamilton County, there were two sobriety checkpoints and two driver's license checkpoints.

"The locations are picked for safety, traffic conditions -- traffic flow and points where DUIs have been received in the past," Harmon said.

Preliminary reports from the THP indicate that five people were killed in three separate crashes in participating "No Refusal" areas, specifically Hamilton, Knox and Wilson counties. None was alcohol-related.

Statewide, seven people were killed in five crashes during the New Year's Eve period, compared to five vehicular fatalities during last year's period. Two of the vehicle occupants were not wearing seat belts and two were pedestrians.
By Lee Davis

"No Refusal" law enforcement in effect on Hamilton County Roads For New Years

To combat drunk driving and the increased use of painkillers and other drugs while driving over the New Year's Day holiday, the Tennessee Highway Patrol and local law enforcement will be stepping up DUI and Drugged driving law enforcement on area roads. The "No Refusal" enforcement will be in effect today through New Year's day.

The most significant difference this year is that motorists who are impaired will not be able to refuse a blood test if an officer has probable cause to believe that the driver is impaired. Previously a motorist could refuse a blood or breath test. Under a law that went into effect earlier this year, a police officer who has probable cause may obtain a search warrant to secure the blood of a suspected impaired driver.

As the TN Department of Safety states, the “No Refusal” law, enacted this year by the General Assembly, allows law enforcement officials to seek search warrants for blood samples in cases involving suspected impaired drivers. Previously, a suspected impaired driver could refuse a blood alcohol content test and face charges of violating the implied consent law. This new law enables law enforcement to legally obtain blood samples by working with prosecutors and judges throughout the state during the warrant acquisition process.

This process will be in effect throughout Hamilton County. This link provides a list of where Tennessee Highway Patrol will be conducting DUI checkpoints today through New Year's Day.

The legislation was passed in part because of the persistent danger of drunk driving and also because of the dramatically increased rates that impaired people driving are impaired by painkillers and other drugs. These drugs do not show up in a standard breath test but can be detected though blood analysis. A forced blood draw supported by probable cause is a significant step to combat the problem.

THP Set to Crack Down on Impaired Driving as Fatalities Increase

According to recent numbers appearing on the state’s TDOT “SmartWay” electronic message boards, the number of traffic fatalities in Tennessee is on the rise. The most recent numbers shown on the board indicate that Tennessee roads have seen 765 deaths so far this year. That compares to the 728 which had been seen at this point last year.

Law enforcement agencies across the state, including the Tennessee Highway Patrol, have said they will begin cracking down on drunk drivers as a way to hopefully reduce the number of deaths in the state. Arrests statistics indicate that crackdown is real given that between January 1 and the end of September, THP made 4,349 DUI arrests statewide. By way of comparison, last year that same timeframe saw only 3,487 DUI arrests.




The THP says that the plan is to continue to increase enforcement of impaired driving to bring down the state’s increasing fatality rate. It should be pointed out that this strategy is hardly a guarantee for success. After all, the number of DUI arrests across the state are up by nearly 25% though fatality rates have also risen.

Some have raised questions about the benefits of the state’s somewhat strict punishments associated with DUI convictions, especially those for first-time offenders. In Tennessee, first-time DUI offenders face a mandatory two-day jail term, over $2,500 in fines and fees, one-year suspension of the driver’s license, and, more troubling to critics, the misdemeanor can never be expunged from their record.

The lifetime provision of the state’s DUI law is especially tough for those who have never faced any trouble before or after. Though the state’s legislators recently passed a law allowing for the expungement of certain felonies, a DUI is not included--and it is a misdemeanor.

The long-term damage that such a lifetime record can cause is serious. Many people in Tennessee find themselves having trouble finding a job with a DUI conviction on their record as employers often conduct background checks before hiring. In some cases colleges can deny admission to those with a DUI and other professional organizations can deny certification thanks to the presence of a DUI, even one that took place many, many years ago.

Though no one recommends that those convicted of impaired driving get off lightly, punishing someone for the rest of their lives serves little purpose other than to mark them for life.

Read: “TN roadway fatality numbers continue to climb,” by Jennifer Meckles, published at WBIR.com.

The Dangers of “Drugged” Driving

Though everyone knows about the danger and irresponsibility of getting behind a wheel after drinking, few people talk about the similar risks associated with drugged driving. That is changing in law enforcement and in many state legislatures across the country given the increasing occurrence of medication-related wrecks and fatalities on the nation’s roadways.

One terrifying example occurred a few weeks ago when a woman in Georgia was driving the wrong way outside Atlanta and was involved in a car crash that injured five others. The female driver, Beverly Lynne Wilkins, was taking a powerful sedative she had taken from her job as a nurse with an anesthesiology center.

Wilkins is said to have been under the influence of Propofol as she drove for three miles the wrong way down Ga. 316. Police investigators say they found an IV bag with a used needle in Wilkins’ car and believe she injected herself with several vials right before her wreck.

According to the National Institutes of Health, the problem of impaired driving is not limited to alcohol. Driving under the influence of prescription drugs raises many of the same concerns given that powerful medication can act on the brain to impair a person’s motor skills, reaction time and judgment. Drugged driving is a public health concern because it puts not only the driver at risk, but also passengers and others who share the road.

According to the National Highway Traffic Safety Administration’s (NHTSA) 2007 National Roadside Survey, more than 16% of weekend, nighttime drivers tested positive for illegal, prescription, or over-the-counter medications while more than 11% tested positive for illicit drugs. Another NHTSA study found that in 2009, among fatally injured drivers, 18% tested positive for at least one, a number that marked a 13% increase from 2005. These results indicate that not enough has been done to educate the public about the true danger of driving under the influence of medication.

Despite the information available regarding the danger of drugged driving, the nation’s laws have yet to reflect the severity of the crime. Though alcohol detection is relatively easy, the presence of illicit drugs is more difficult to measure and there is no agreed upon impairment limit. Many states, including Tennessee, don’t list specific requirements for what measurements of substances amount to intoxicated driving the way that 0.08% blood alcohol concentration is specified for alcohol-related arrests. Instead, Tenn. Code Ann. § 55-10-401(a) vaguely says that a person is guilty of driving under the influence if he or she drives or is in physical control of any motor driven vehicle while under the influence of any intoxicant, marijuana, or narcotic drug.

Read: “Driver in wrong-way Gwinnett crash to enter drug rehab,” by David Ibata, published at AJC.com.

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Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test
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U.S. Supreme Court to Rule on DUI Forced Blood Draws

By Jay Perry           

            The U.S. Supreme Court has just granted certiorari to hear an appeal to decide whether the police can force a suspected drunken driver to submit to a blood test without a search warrant.  The case is an appeal from a decision by the Missouri Supreme Court, Missouri v.McNeely, which held that in a typical DUI case the police must obtain a search warrant before forcing a suspect to provide a blood sample.  The State argued that the delay in obtaining a warrant would allow for the alcohol in a suspect’s blood to naturally dissipate and thus the “evidence” would be destroyed.  The question before the Supreme Court then is whether the “exigent circumstances” exception to the 4^th Amendment warrant requirement allows for the police to force a blood draw from a DUI suspect.    

            

            The decision by the Supreme Court will be very important because as it stands there is considerable variety in state laws regarding forced blood draws.  Here in Tennessee, there are currently a few situations in which the police can obtain a blood sample without either the suspect’s consent or a search warrant:

            1) the suspect is involved in an accident resulting in the injury or death of another;

2) the suspect has a previously been convicted of DUI, Vehicular Homicide by Intoxication, or Aggravated Vehicular Assault;

3) the suspect has a child passenger in the car under the age of 16.

In each of the three situations above, if police have probable cause to believe that a suspect has committed a DUI, they can force that person to give a blood sample without consent.

Even if one of the above situations isn’t present, a DUI suspect will still have to consider whether to provide a blood sample.  In Tennessee, all persons driving are presumed to have given consent to a test to determine the alcohol content of their blood.  Failure to provide either a blood or breath sample is a violation of Tennessee’s Implied Consent Law.  That provision (TCA 55-10-406), holds that refusal to submit to a blood alcohol sample is a violation of state law.  Importantly, a violation of the Implied Consent Law is not a criminal offense but does carry a loss of driving privileges for one year.    

The Supreme Court’s decision will answer the question of whether a forced blood draw violates the 4^th Amendment’s prohibition against “unreasonable searches”.  The constitutionality of the above Tennessee provisions will likely be affected by how they rule, and so the case merits attention.  Oral arguments will be scheduled sometime in early 2013.  

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test.

by Lee Davis

Intoximeter

In State of Tennessee v. Gail Lynn Padgett, a Knox County woman was convicted of driving under the influence of an intoxicant (her fourth conviction), driving on a revoked license and two counts of disorderly conduct. The trial court sentenced Padgett to one year in jail with 150 days served in conferment and the rest on probation. Her license was revoked for five years and she was required to attend DUI school. 

Padgett has appealed, arguing that the evidence is insufficient to sustain a conviction, the trial court erred in denying her Motion to Dismiss for the State’s failure to preserve evidence and for denying her Motion to Suppress evidence of her actions to police due to lack of the probable cause necessary to have arrested her in the first place. The State Court of Criminal Appeals rejected Padgett’s claims and affirmed the ruling of the trial court.

Padgett first filed a Motion to Suppress arguing that video evidence attained by the arresting officer’s police car should be suppressed due to the lack of probable cause in arresting her. The facts showed the following: At a little after 8 in the morning on May 28, 2008, Officer James Wilson got a call about an accident. He arrived and testified that before exiting his vehicle he turned on the microphone and video recorder in his police cruiser. 

While speaking to those at the scene, Wilson hit a car passing by her driveway. Padgett started yelling that she was not in the wrong. Wilson allegedly observed Padgett stumbling and detected a very strong odor of alcohol on her breath. Based on this behavior he placed her under arrest. Because of Padgett’s erratic behavior he was unable to perform any field sobriety tests. Wilson later swore out a warrant for her arrest noting her slurred speech, glassy bloodshot eyes and her unsteadiness while walking. Wilson admits to not listing the smell of alcohol and explained that he must have just forgotten to write it down. The trial court agreed that Officer Wilson had probable cause to arrest Padgett for disorderly conduct, not DUI, and denied Padgett’s Motion to Suppress.

Padgett then filed a Motion to Dismiss due to lack of evidence. No blood alcohol test was ever performed nor was a Breathalyzer test administered. Wilson claims this was because of Padgett’s wild behavior following her arrest. The trial court again denied Padgett’s Motion and decided to proceed. 

At trial much the same evidence was discussed. The video and audio recordings were also admitted into evidence and seemed to support much of what Officer Wilson had testified to. 

On appeal, Padgett contends that because no field sobriety tests were performed there can be no evidence to support a DUI conviction. The State counters by saying that other evidence supports such a conviction. The Court of Criminal Appeals agreed with the state, citing the three witnesses who testified to Padgett’s appearance and behavior that day. Such evidence is adequate for a reasonable trier of fact to conclude that she was under the influence and a field sobriety test is not required to support a DUI conviction.

With regard to Padgett’s Motion to Dismiss, the Court of Criminal Appeals says that there is no duty by an officer to administer a blood alcohol test. The only requirement is that if such a test is not administered, then that failure shall be “admissible in evidence in a criminal proceeding.” T.C.A. Section 55-10-407(b). Here that hurdle was cleared as the jury was fully informed during both direct and cross-examination that Wilson did not request that Padgett submit to a blood alcohol test. 

Turning to the Motion to Suppress, the Court says that Wilson had sufficient probable cause to justify an arrest for disorderly conduct and that Wilson did not have to explain to Padgett that she was being arrested for such a charge in order to make the arrest valid. The Court went further in saying that Wilson did have probable cause to arrest Padgett for DUI. Under T.C.A. Section 40-7-103(a)(6), Wilson personally observed Padgett’s behavior and actions and believed she was intoxicated, thus granting him the probable cause necessary to arrest Padgett for DUI.

For the full opinion, click here.

Earlier:

Shocking Allegations Concerning Behavior of Knoxville Judge in Christian/Newsom Slaying

New Tennessee Campus Crime Report Released

Tennessee Court of Criminal Appeals: DUI Dismissed After Lost Video of Traffic Stop

In State v. Angela Merriman, the State appealed a trial court's dismissal of a DUI and two other counts against Angela Merriman. Merriman was charged with DUI, felony reckless endangerment and reckless driving. The Tennessee Court of Criminal Appeals agreed that dismissal of the charges was proper based on the state's losing the video of her arrest and roadside conversation with police.

The case began in early 2011 when the defendant was arrested and charged with DUI. The defendant filed a motion to dismiss the indictment due to the State’s failure to produce video evidence of the stop leading to her arrest.

The arresting officer stated that the video was simply lost.  Of particular concern here is that the video is the best evidence for both the prosecution and the defense.  It either inculpates guilt or exonerates Ms. Merriman.  For it to be lost is negligence by the police or state and the court recognized the importance of that issue.

The trial court held an evidentiary hearing and ultimately ruled that the State’s failure to preserve the video of the road side encounter of Merriman and the police violated her right to a fair trial. The court dismissed all three charges against her. The State appealed and argued that the trial court wrongly dismissed this DUI case. 

In a case of misplaced or missing evidence a court in Tennessee must weight three factors: 1) the degree of negligence involved; 2) the significance of the destroyed evidence; and 3) the sufficiency of the other evidence used at trial to support the conviction. If after weighing these factors the court believes that a trial without the lost evidence would be fundamentally unfair, then the trial court may dismiss the charges.

The Court of Criminal Appeals applied an “abuse of discretion standard” which means that before there can be reversal, the record must show that a judge applied an incorrect legal standard or reached a decision which is against logic or reason that caused an injustice to the state.

Here, the appeals court concluded that the trial court was correct in saying that without the video evidence of the traffic stop, the case would become a “he said, she said” situation. Dismissing the charges was appropriate to ensure fundamental fairness. 

The full case can be found here.

Earlier:

Criminal Law Review: New DUI law in effect.

Criminal Law Review: What are the DUI penalties in Tennessee?

New DUI law in effect

A new practice in DUI enforcement is now law.


As of January 1, 2012 a forced blood draw is now the law for every DUI stop in three situations in Tennessee:  1. If the driver has ever been convicted for a previous DUI (this is new); 2. If there is a passenger in the car under 16 years old (this is new); and, 3. If there has been an accident causing injury (this has been the law for some time). In short, no consent is needed in any of the three situations listed above for law enforcement to take blood or a breath sample (officer's choice as to method) from a motorist suspected of DUI.

The exact language of the statue says: 


(1) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed a violation of § 39-13-213(a)(2), § 39-13-218, or § 55-10-401, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test; or

(2) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 and has been previously convicted of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.


(3) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 5-10-401 and a passenger in the motor vehicle is a child under sixteen (16) years of age, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

What are the DUI penalties in Tennessee?

Frequently attorneys are asked, what are the potential penalties for DUI?  Most lawyers know the conventional answer: loss of license and 48 hours in jail.  But the reality is that DUI law is becoming more complicated and the penalties can be more invasive than one might think. Listed below are the actual DUI penalties in Tennessee. These are listed by the TN Department of Safety & Homeland Security and are updated as legislative changes occur.

By way of example, a first offense DUI has the following potential penalties:

• from 48 hours in jail up to 11 months, 29 days for first offenders
• .20 BAC or greater minimum jail time 7 consecutive days
• License revocation for 1 year/restricted license may be available for work
• 3 days (24 hours) of community service like trash pick up
• alcohol & drug counseling
• You will be ordered to participate in a DUI school
• Pay restitution to any person suffering physical injury or personal loss
• $350-$1,500 fine to the state plus often a local court's DUI fine typically another $100
• With towing, bail, high risk insurance, court costs, school, and reinstatement fees, your first offense average costs could add up to $5,000 
• Judge can order you to install a vehicle Ignition Interlock Device at your expense. Minimum 1st year cost $810 [55-10-412d]
• If two (2) convictions of DUI in 5 years, Ignition Interlock Device required for 6 months after reinstatement at your expense Drug and Alcohol Treatment may be required at the judge's discretion.

A second offense DUI carries the following potential penalties:

• from 45 days to 11 months, 29 days in jail
• $600-$3,500 mandatory fine
• 3 days community service
• License revocation for 2 years/Restricted License available after first year
• Subject to vehicle seizure/forfeiture
• You will be ordered to attend a DUI school
• alcohol and drug counseling
• The judge can order you to install a vehicle Ignition Interlock Device at your expense
• If two (2) convictions of DUI in 5 years, Ignition Interlock Device required for 6 months after reinstatement at your expense
• Pay restitution to any person suffering personal injury or loss.

For a full list of penalties click this link or go to: http://www.tn.gov/safety/duioutline.shtml

Indictment Cures Any Defect in DUI Warrant

• STATE OF TENNESSEE V. GUY STEVEN CATHEY

Guy Cathey pled guilty to driving under the influence of an intoxicant (“DUI”), first offense, and reserved on appeal the following two certified questions: (1) “Whether a magistrate that conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as [a] ‘neutral and detached’ magistrate for purposes of the Fourth Amendment to the Constitution of the United States or its laws and/or in violation of the Constitution of the State of Tennessee and its laws”; and (2) “Whether the issuance of a warrant after the administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the Constitution of the State of Tennessee and/or its laws.” After the challenged warrant was issued,the Grand Jury indicted the defendant, charging him with one count of DUI. The Court of Criminal Appeals held on Monday, Dec. 5, 2011, that the certified questions are not dispositive of the defendant’s case because the subsequent indictment cured any defects in the warrant. The appeal was dismissed.


How do you preserve a question on appeal?

Tennessee Rule of Criminal Procedure 37(b) sets forth the requirements for preserving certified questions for appeal from guilty pleas: The defendant may appeal from any judgment of conviction . . . on a plea of guilty . . . if . . . the defendant entered into a plea agreement under Rule11(a)(3) but explicitly reserved – with the consent of the state and of the court– the right to appeal a certified question of law that is dispositive of the case. . . .Tenn. R. Crim. P. 37(b)(2)(A). Strict compliance with Rule 37’s requirements is mandatory. See State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003)

DUI forced blood draw expands in Tennessee

A new practice in DUI enforcement is now law.


After January 1, 2012 a forced blood draw will be the law for every DUI stop in three situations in Tennessee:  1. If the driver has ever been convicted for a previous DUI (this is new); 2. If there is a passenger in the car under 16 years old (this is new); and, 3. If there has been an accident causing injury (this has been the law for some time). In short, no consent is needed in any of the three situations listed above for law enforcement to take blood or a breath sample (officer's choice as to method) from a motorist suspected of DUI.

photo credit/yakkhapadma

The exact language of the statue says: 


(1) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed a violation of § 39-13-213(a)(2), § 39-13-218, or § 55-10-401, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test; or

(2) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 and has been previously convicted of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

(3) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 5-10-401 and a passenger in the motor vehicle is a child under sixteen (16) years of age, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

CCA Reverses Suppression of Evidence from DUI Checkpoint

by OfficerGreg

• State v. Charles H. Vires, Jr.

The state appealed a ruling by Judge Robert Lee Holloway, Jr. granting Charles Vires motion to supress evidence obtained during a DUI traffic checkpoint. The Court of Criminal Appeals reversed.  The issue is whether the police provided sufficient advance notice of the checkpoint.


The trial court found that the checkpoint was not conducted in accordance with the predetermined guidelines listed in General Order 410-1 because the public did not receive advance notice of the general location of the checkpoint or the approximate time it would be conducted. The trial court concluded that the failure of the advance notice to comply with the law rendered the checkpoint an unreasonable seizure under the Tennessee Constitution and granted the Defendant’s motion to suppress the evidence obtained at the checkpoint.



The Court of Criminal Appeals agreed with the trial court’s finding that the advance notice of the checkpoint did not comply with the statute because it did not list the general location of the checkpoint or the approximate time it would be conducted. They disagreed, however, that this factor rendered the checkpoint an unconstitutional seizure. The insufficient advance notice--the court noted--"weighs against the overall reasonableness of the checkpoint, but it does not necessarily invalidate the checkpoint." Publicity is a factor to be considered when assessing the reasonableness of a roadblock but is not alone dispositive of the issue. The Court held that the trial court erred by not considering all relevant factors in determining the overall reasonableness of the checkpoint and whether the checkpoint was conducted in accordance with the mandatory requirements.


There are four factors the court looks at when assessing a DUI road block.

(1) stopping all cars traveling in both directions, unless congested traffic requires permitting motorists to pass through;

(2) taking adequate safety precautions, such as warning approaching motorists of the roadblock and stopping cars only in a safe and visible area;

(3) conducting the roadblock with uniformed officers and marked patrol cars with flashing emergency lights; and

(4) providing advanced publicity of the roadblock to the public at large, separate from, and in addition to, any notice warnings given to approaching motorists.

Lastly came the court's warning:
"We caution that our holding does not condone the Tennessee Highway Patrol’s failure to provide sufficient advance notice in compliance with its own guidelines. If incidents of insufficient advance notice continue to occur, the circumstances may render a checkpoint invalid and justify exclusion of evidence."

DUI a Restatement of Sufficient Evidence

• STATE OF TENNESSEE v. SHAWN DALE OWNBY

The court offers a good restatement of the law for insufficiency of the evidence for a DUI case in Tennessee. While everything listed below is well recited law, it is instructive to use this recent opinion as a checklist for cases to assess whether a challenge can be made to the sufficiency of the evidence. You have to deal with these issues in order to raise a challenge, best to be informed at the start: know the standards of review, applicable rules and cited federal and state law precedent.

When an accused challenges the sufficiency of the evidence, this Court’s standard of review is whether, after considering the evidence in the light most favorable to the State, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct evidence, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). “The standard of review [for sufficiency of the evidence] is the same whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In determining the sufficiency of the evidence, this Court should not re-weigh or reevaluate the evidence. State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.1973). The Tennessee Supreme Court stated the rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.

Here, the Court affirmed where the defendant admitted to drinking a beer and smoking marijuana before he drove his car, was caught speeding and ran a red light.

Revoked License Conviction Overturned--note to DUI practitioners

• STATE OF TENNESSEE v. RICHARD E. BROWN, JR.

In this Williamson County case Richard Brown contends (1) that the trial court improperly found him guilty of driving on a revoked license when the indictment charged him with driving on a suspended license and (2) that he could not be convicted of driving on a revoked license because the Department of Safety never revoked his license.

On May 3, 2010, the trial court held a bench trial. The State and the Defendant stipulated to the following facts: The defendant was convicted of Driving Under the Influence on March 5, 2008, and sentence imposed on September 15, 2008, and under special condition on the judgment was entered “2 year license suspension.”  Assistant Attorney General Kelly Lawrence observed the defendant driving on October 9, 2008, and caused an arrest warrant to issue for Driving on a Suspended License, and the defendant was taken into custody pursuant to that warrant. The defendant was indicted for Driving on a Suspended License on July 13, 2009. The Department of Safety shows no formal action suspending the defendant’s license from March 5, 2008 to present and shows that [the defendant] had and still has a valid license. The trial court took [the defendant’s] license after conviction for the DUI second offense referenced above. The clerk’s office returned the license to Mr. Brown pending appeal.

Based upon these facts, the trial court convicted the Defendant of driving while his license was revoked with a prior DUI conviction.  The Court of Criminal Appeals reversed and dismissed the charge against Mr. Brown.

Because driving under the influence is a serious offense which can result in tragic and life-altering consequences for the defendant and innocent victims, we understand the legislature’s decision to create two separate and distinct methods of banning a defendant from driving. One is a prohibition on driving issued by the trial court and meant to serve as a punishment for the defendant’s DUI conviction. The other is an administrative action revoking the defendant’s driver’s license and meant to protect the citizens of Tennessee. It is baffling to this court as to why the legislature chose not to include the trial court’s prohibition on driving as part of section 55-50-504 in order to criminalize violations of the prohibition. However, the statute is clearly limited to the Department of Safety’s power to revoke, suspend, or cancel a license. Because the Defendant’s license was never actually revoked by the Department of Safety, he could not have been convicted of driving on a revoked license. Accordingly, we reverse the judgment of the trial court and dismiss the Defendant’s conviction for driving on a revoked license.

DUI Breath Test Results Challenged

Intoxilyzer 5000

A Minnesota lawyer has challenged results to Intoxilyzer DUI breath test results. Attorney Ryan Pacyga contests the results of more than 160 DUI tests claiming they are in error. In Tennessee law enforcement uses similar equipment, the Intoxilyzer 5000, as in Minnesota. Timothy Williams reports on this issue in  the New York Times.

Q How long do you believe there has been a problem with the Intoxilyzer, and what made people start looking into it?
A The suspicion is that this probably started a long time ago. The more air you blow into the machine, the higher the alcohol rate it registers. You have officers saying, “Blow harder. Blow harder,” as people are blowing into these machines. I’ve seen it happen time and again. In some cases, if you didn’t blow enough air into a machine you get what is called a “deficient sample,” which is qualified as a refusal. A refusal takes a harsher punishment in Minnesota.” [Note: The state and the manufacturer dispute that blowing harder is linked to higher readings.] I’ve handled over 1,000 D.W.I.’s in the last seven years and always look at the breath volume and compare the two samples [tests consist of two breaths into the Intoxilyzer]. I’ve seen this. I don’t know whether it could be tested or if it’s been tested. It’s kind of anecdotal. The other thing is this machine uses a control — a simulated solution control that is usually between a .078 and .082 when it is put into the machine. When the machine does the “control” and “replicate,” I often see that, despite knowing the control is a given value, the machine measures it higher, or lower. The point is that it knows what the control is, and it still isn’t measuring it right. The state says it’s within an acceptable limit. It may be acceptable to the state, but if you are a defendant, it’s not so cool.

Q How many cases are involved here?

A Over all, tens of thousands of tests probably over five or six years. A lot of lawyers never challenged the tests. We’re probably down to around 4,000 now. I’ve got over 160 people myself. My understanding is that is the second largest group in the state.

Q Why is this issue important?

A In some form or other, everyone involved in this is fighting for their lives. Someone who drives as part of a job — a truck driver, someone who makes deliveries, a traveling salesman — they’re going to lose that job. They’ve had training for their jobs and that’s all the training they have, and especially in this economy, their prospects for employment are not good. There are mechanics, they have to test-drive cars. They’re out of work. There are also background checks for white-collar workers. There’s not a lot of tolerance for a D.W.I. A lot of people are getting screened out because employers think if you have a D.W.I., you must be an alcoholic.

My take on the Intoxilyzer 5000 in TN. Tennessee chose not to use a newer version of the Intoxilyzer, the Intoxilyzer 8000, after reviewing the machine.  Both the Intoxilyzer 5000 and 8000 have faced a number of legal challenges in several states: Ohio, Florida and now Minnesota.  It is my understanding that law enforcement in Tennessee uses the Intoxilyzer 5000 exclusively. Currently results from the Intoxilyzer 5000 are admissible in Tennessee Courts.

DUI Study Reveals Surprising Results

Miguel F. P. de Figueiredo, a professor at U.C. Berkeley and Yale Law School, conducted a study (here is the abstract) in Arkansas asking whether harsher sentencing for a higher blood alcohol content (BAC) affects the recidivism rate. A common practice today is to increase the time period of incarceration or the amount of time a license is suspended depending on the level of a defendant's BAC at the time of arrest in order to deter the defendant from committing the offense again.  For example, in Tennessee if your blood alcohol level is over .20 the law requires a mandatory 7 days in jail for a standard first offence--5 days more than some whose blood level is over the legal threshold of .08. The focus of the study was to determine whether those increased sentences have the desired deterrence effect.

The study observed 15,973 defendants in two jurisdictions, making this study the most comprehensive of its kind. Because of the size, the numerical estimates and the causal inferences are more reliable. Specifically, the research design examined defendants whose BAC was just above or below .15 to see if the effect of an increased license suspension by an additional two months has an effect on recidivism.

Without getting into the math which involves multiple variables, the study found that the increased sentences had no real effect of the rate of recidivism. This finding directly contradicts the common theory that defendants will be deterred from committing the same offense if the Court imposes a harsher sentence.

New DUI Bill for Tennessee

The New DUI Bill : two new ways that force a blood draw of suspected DUI drivers.

A new bill regarding DUI offenses was passed by the Tennessee Legislature today. Essentially if a driver gets pulled over because of a suspected DUI, the officer can now administer a blood alcohol test regardless of whether the driver consented to the test if the driver falls under one of two categories. The first is if the driver has been previously convicted of a DUI, vehicular homicide due to intoxication, or aggravated vehicular homicide. The second is when there is a child in the car under the age of 16. If a driver falls into one of these two categories and the officer has probable cause to believe the driver is intoxicated, he can administer a test regardless of consent, the officer may force a blood draw.

The bill states, in part:

"If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed an offense of DUI, vehicular homicide due to intoxication, or aggravated vehicular homicide, then the officer must cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood, regardless of whether or not the driver consents to the test."

This bill changes many aspects of the procedures involving DUI offenses. The Fourth Amendment of the U.S. Constitution exemplifies a policy favoring personal autonomy in regards to searches and seizures by law enforcement upon the person of another. Despite such a policy, this bill puts a substantial amount of discretion into the hands of the police, negating any sort of personal autonomy. The question becomes whether the Tennessee legislature will continue to recognize limitations on this policy, and if so, will those limitations eventually result in a complete lack of consent for purposes like those contained in this DUI bill? The effective date of the new DUI forced blood draw law is January 1, 2012. HB Bill 715 full text.

Failure to use turn signal not a basis for stop, crossing double yellow line is in this DUI

• STATE OF TENNESSEE v. CARLIE D. SCHOENTHAL

In this Chattanooga DUI Officer David Allen began following a woman who was in the vicinity of a local bar.  He followed her for some distance noting that she failed to use a turn signal to indicate a turn and that she crossed the double yellow line of Chestnut Street.

Ms. Schoenthal pleaded guilty to DUI and took a certified question to the Court of Criminal Appeals on whether this was a lawful traffic stop by Officer Allen.  The appeals court found no problem with Ms. Schoenthal's turning without a turn signal since the road was virtually empty and it did not affect traffic (Judge Steelman made no findings against her on this basis either).  However, the court did have a problem with her crossing the center line and on that basis upheld the trial court's denial of the motion to suppress the traffic stop.

The Court of Criminal Appeals has previously stated that “we do not think that a momentary drift out of a lane constitutes driving a vehicle outside of a single lane.” Unfortunately for Ms. Schoenthal, the video here shows that she did more than momentarily and slightly weave out of her lane. Instead, the video reflects that the she crossed the double yellow line and, for a brief period of time, was traveling on the wrong side of the road before drifting back into her lane. The court found her crossing of the double yellow lines and briefly driving on the wrong side of the road amounted to more than simply poor driving and this supported Officer Allen's stop.

As this court has previously held, “a turn signal is only required by law when another vehicle may be affected by the turn.” 
State v. Gonzalez.