Daniel Hamilton is a Memphis Criminal Defense Attorney
Note: This information is applicable to Tennessee DUI law as of May 10, 2015. DUI laws in Tennessee are subject to change, and they change often. This post is not offered as legal advice. It does not create an attorney-client relationship. If you are seeking a criminal defense attorney for legal advice about a DUI arrest and/or associated charges, contact Memphis Criminal Defense Attorney Daniel Hamilton directly at (901) 612-2176 .
1. If I am charged with a DUI Offense, should I hire an attorney?
Yes. You should hire a criminal defense attorney who knows the DUI laws and criminal procedure. DUI laws change often, and it is often hyper-technical. A DUI conviction carries serious consequences such as loss of driving privileges, jail time, loss of a vehicle, increased insurance rates, and often can lead to job loss. Additionally, a DUI Conviction cannot be expunged. In other words, there is only one chance to avoid a DUI conviction. You should hire an experienced DUI attorney and develop a strategy for fighting the charge.
2. What are the “tricks” to beating a DUI Charge?
There are no “tricks” to beating a DUI charge in Tennessee. There are, however, many legal opportunities that can arise based on the facts of each specific case. For example, did the officer have a valid basis for stopping the vehicle? Did the officer follow proper procedure? Did the officer need a search warrant? What does the video for the stop show? If a blood sample was drawn, was it properly handled and tested? An experienced DUI attorney will know to look at these issues and see if legal opportunities arise as a result.
3. What is a DUI in Tennessee?
As of May 10, 2015, the DUI statute in Tennessee reads as follows:
It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, any shopping center, trailer park, apartment house complex or any other location which is generally frequented by the public at large, while:
- Under the influence of any intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system or combination thereof that impairs the driver’s ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess;
- The alcohol concentration in the person’s blood or breath is eight-hundredths of one percent (0.08%) or more; or
- With a blood alcohol concentration of four-hundredths of one percent (0.04%) and the vehicle is a commercial motor vehicle as defined at § 55-50-102.
4. Can I be convicted of DUI if someone else is driving their vehicle?
Yes. If you knowingly allow an intoxicated person to drive your vehicle, both of you could be charged with a DUI Offense in Tennessee. This is known as “DUI by Consent” or “DUI by Ownership.” If you knowingly allow an intoxicated person to drive your vehicle, both of you could be charged with a DUI Offense in Tennessee. This is known as “DUI by Consent” or “DUI by Ownership.”
5. Can I get a DUI Charge in Tennessee if the vehicle is parked and the keys are not in the ignition?
Yes. The issue here, as stated in the DUI statute, is “physical control.” There are several cases in Tennessee interpreting these words and applying them to situations where the vehicle is in park, and the driver is either unconscious or asleep in the vehicle. There are several factors that the trial court will look at to decide whether you are in “physical control” of the vehicle. If you are facing a DUI charge involving the interpretation of “physical control,” you should hire an experienced DUI attorney.
6. Should I blow into a Breathalyzer, take a blood test, or refuse?
The decision to take or refuse a Blood, Breath, or Urine test during a DUI stop is a critical decision which can yield many different results.
It depends. This is perhaps one of the most common questions asked, and, unfortunately, there is no clear answer. There are more factors to this decision than there is room for me to discuss in this article. If you do not offer a blood, breath, and/or urine sample, then you may have violated the implied-consent statute. If so, you may lose your license, even if you are not convicted of DUI. If you do give a sample, assuming the proper procedure was followed and the alcohol content is in fact over the limit, then you may have provided the officer with the best proof of a DUI. Once convicted, you will lose your license
7. Can the officer make me take a blood-alcohol test?
Yes, but only under certain circumstances. In recent years, the Tennessee Legislature has passed several laws requiring forced blood draws. Some of these circumstances include: children in the car, prior DUI convictions, crashes with injury, etc. A common issue that arises in these cases is whether the officer was required to obtain a search warrant before drawing blood. There are recent federal and state cases addressing these issues. If you are facing a DUI charge in which there was a forced blood-alcohol test, you should contact an experienced DUI attorney.
8. Once convicted, will I lose my license?
Yes. If you are convicted of a DUI offense or for violating the Implied-Consent statute, you will lose your license. As of May 10, 2015, the Implied-Consent statute provides in relevant part:
Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person’s blood, a test or tests for the purpose of determining the drug content of the person’s blood, or both tests. However, no such test or tests may be administered pursuant to this section unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, or was violating § 39-13-106, § 39-13-213(a)(2) or § 39-13-218.
9. Will I be able to drive a vehicle if I am convicted?
It depends on the conviction and circumstances of the case. In many cases, if you are convicted of DUI or violating the Implied-Consent statute, you may request a Restricted Driver’s License or an Ignition Interlock Device. If the court allows, you may be able to drive your vehicle during the suspension period.
10. What are the minimum penalties for a first-offense DUI?
The penalties can vary depending on the circumstances of a first offense, but the following are the typical minimum penalties:
- 48 Hours in Jail
- $350 Fine;
- Court Costs;
- Loss of Driving Privileges for One Year;
- 24 Hours of Litter Pick Up;
- Alcohol or Drug Treatment Assessment and/or Treatment Program; and
- Alcohol Safety Class and/or Victim Impact Panel Attendance.
Again, depending on the circumstances, there can be additional penalties. It is best to discuss the facts of your case with an experienced DUI attorney.