Ways to minimize the possibility of a DUI conviction
Ways to minimize the possibility of a DUI Conviction
(Revised 2009)
JERRY H. SUMMERS
Summers, Rufolo & Rodgers
The James Building
735 Broad Street, Suite 800
Chattanooga, TN 37402-2913
Telephone: 423-265-2385
Facsimile: 423-266-5211
1. Don’t drink and drive!
2. Have a designated driver when you plan to drink. That person should drink nothing alcoholic. In Hamilton County, Tennessee, the mere odor of alcohol on your breath is enough to get you arrested. Law enforcement agencies are threatened with lawsuits if you have been drinking, are released by the officer, and later kill or injure someone.
3. After July 1, 2004, wear your seat belt, as the law enforcement agencies can use such a violation to stop you, to question you about your alcohol use, and to search your vehicle.
4. Always check your car before you go out to make certain you do not have a broken or non-working headlight, taillight or turn signal light.
5. Always stay within the speed limit by at least 5 miles per hour. We now have traffic cameras in several areas of Hamilton County.
6. Use your turn signals when you change lanes and avoid making several lane changes to avoid a claim of “weaving.”
7. Keep your driver’s license in your upper shirt pocket, and keep your registration and insurance papers nearby in order to eliminate a charge of “fumbling” with your papers.
8. Roll the windows down in your car to avoid the concentration of an “alcohol odor,” especially if you have other passengers in your car who have been drinking.
9. Always eat a full meal and snacks over the course of the time that you are drinking.
10. If you choose to drink alcoholic beverages, limit your drinking to no more than one drink every 1-1/2 hours.
11. If you are blue-lighted by an officer, use your turn signals and blinkers and cautiously exit the highway into a safe location as soon as possible.
12. Consider getting out of your vehicle and stand by it, so as to minimize the odor of alcohol from other persons in the vehicle to avoid the claim of a “strong odor of alcohol.”
13. If the officer orders you to get back in your car, respectfully ask if you can stand beside your car.
14. If you drink, request a record of the number of drinks that you consumed at the bar or restaurant and pay by credit card, if possible.
15. Get the name of your waiter and/or bartender who may later be able to testify as to your sobriety and amount of alcohol consumed.
16. Keep a record of your contacts during the evening who may be able to testify as to your sobriety and concentration.
17. If requested to do any field sobriety tests, you may politely tell the officer that you respectfully decline to perform them because of their lack of reliability and that you are not required by law to take these tests. You have an absolute right to refuse to take such tests. If you are over 60, more than 50 pounds overweight, or have physical disabilities to your legs, balance or eyes, then the results may be unreliable.
18. Some officers will try to get you to say that you have no physical problems that might affect your ability to perform FSTs. A blanket refusal to do any tests will preserve this issue if you should later recall any medical condition that might explain a legitimate inability to perform such tests.
19. Remember that your actions may be recorded by a video camera in the officer’s vehicle and that he or she may be secretly recording your conversation with a portable tape player. The officer is not required to tell you that he or she is recording you.
20. Statistical studies show that the One-Leg-Stand test is only about 65% accurate and that the Walk-and-Turn test is only 68% accurate. In other words, these tests can be inaccurate as much as 35% and 32% of the time.
21. Implied Consent – (A) If you are already under arrest for DUI (in handcuffs), know that you are going to jail irrespective of whether you register above or below .08 on the Intoximeter EC-IR machine or blood test.
22. Implied Consent – (B) The officer has the option of offering you either a breath test or a blood test under Tennessee law. The results in both tests will be used to incriminate you. Even if you register below .08, you may still be charged and convicted if there is other evidence against you, such as the testimony of the arresting officer and others.
23. Implied Consent – (C) You will not go to jail simply for refusing to participate in a blood test or a breath test. However, you may lose your license if it is determined by a court that there are “reasonable grounds to believe you were driving or [were] in physical control of a motor vehicle while under the influence of alcohol and/or drugs.” This is a separate charge from DUI.
24. Implied Consent – (D) The form says that “if you refuse to submit to a breath or blood test, the court trying your case shall suspend your driver’s license for a period of 12 months.” They do not tell you that you have a right to appeal the suspension of your license to an appellate court. Sometimes, an officer may imply that you will go to jail if you refuse to take a test. Nevertheless, note that there is a separate provision that says that if you refuse to take the test while driving on a revoked, suspended or revoked license for a conviction for vehicular assault, vehicular homicide, aggravated vehicular homicide or DUI, your refusal will result in an additional minimum five (5) day sentence consecutive to any other sentence imposed. Although this charge is again separate from a DUI charge, you still have a right to defend yourself against this charge as well.
25. Implied Consent – (E) If you decide to take either a breath test or a blood test, request that you be provided with a sample of your specimen in order that you may have it tested by an independent agency. This is your right under Tennessee law.
26. Implied Consent (F) As of January 1, 2012, the law requires a forced blood draw for every DUI stop involving one of the following factors: (1) if the driver has a previous conviction for DUI, vehicular homicide, or aggravated vehicular homicide, (2) if the driver has been involved in an accident causing injury or death to another, or (3) if a passenger in the car is under 16 years old. No consent is necessary, and the law requires the officer to force a blood test of the driver.
27. If you want to plead guilty and accept the mandatory minimum punishment prescribed by law for DUI in Tennessee, you may discuss your case with the prosecutor if you wish to avoid the expense of an attorney. It is recommended, however, that you at least talk to an attorney experienced in handling DUI cases before you make this decision. Most lawyers do not charge a fee for an initial consultation.
28. Be careful in choosing a lawyer upon the recommendation of a jailer, trustee, bail bondsman, or attorneys who solicit your case by sending a form letter within 3-4 days of your arrest. While you may use one of those lawyers, the fact that they send form letters to everyone arrested in Hamilton County on a particular day does not mean that the lawyer “recommended” is the person you should use to defend your case.
29. If you plan to use an attorney to defend you in your DUI case, contact them as soon as possible in order to discuss the acts, preserve evidence and testimony and to develop a legal theory of defense.
30. If you are in a wreck, take photos of the interior and exterior of each auto or property involved. The extent of damage may support a claim that the reasons you couldn’t do field sobriety tests or appeared to be DUI was because of the wreck.
31. Tennessee is a “Physical Control” state. This means that the officer does not have to see you drive to charge you with DUI. The old practice of pulling off the road to avoid driving after you realize you have had too much to drink will not work anymore. However, you can minimize your chances of getting convicted if you turn off your motor, take your keys out of the ignition, get out of the driver’s seat and rely on your constitutional right to remain silent. If possible, call someone to come get you.
32. Repeat Step # 1.