Follow by Email

Thursday, November 17, 2011

Stopped in Nashville for DUI - Do I have to take the field sobriety test?





Do you know your legal rights if you see this in your rearview mirror?  The answer for most people is, "No, not really".

That is why you need an experienced criminal defense attorney that will not only help you with your current Nashville criminal case... but also teach you about future police conduct.  At Ridings Law Group, PC, we do just that.  Attorney David G. Ridings is a Nashville Criminal Lawyer with experience on every side of the legal system.  And, he does more than just represent you.  He will teach you about how to deal with police contact, and what your rights and obligations are for future stops.


For example… Many people know that when stopped for Driving Under the Influence (DUI), the officer will always ask you to perform a "few tasks" to determine the level of impairment of the driver. These "tasks" are commonly referred to as Standardized Field Sobriety Tasks/Tests" (SFT's).

But, aren't you "required" to do everything the police ask you to do?  The answer is, "No.  Not always."  But, the way you are asked to do them, makes it sound that way.  So, how do you know what to do?  You educate yourself.

In fact, many people do not realize that you are NOT required to take the standardized field sobriety tests (SFT's) when asked to do so by a police officer.  A great number of people realize that they are not required to submit to a breath or blood test… but most do not know they can also refuse the field sobriety tests, such as the Walk and Turn, the One Legged Stand, and the Horizontal Gaze Nystagmus test (HGN).

Even those who do know that, don't know how to articulate "why" they do not want to take the tests.  Do you?




As a former Metro Police Officer, and with my experience at the District Attorney's Office in Nashville Davidson County, as well as my 13 + year criminal defense practice… I have experienced every side of the criminal justice system over the last 24 + years.  With that said, one of the best reasons I can think of to refuse the SFT's is that they are "subjective" in nature.  They are clearly not an objective way to measure the level of intoxication of a person, because there are so many other factors to consider when you talk about balance, attention span, and ability to follow directions.   Furthermore, the officer is never going to use terms like "pass" or "fail".  They will use terms like "he/she showed 'indicators of impairment'."  Therefore, the best answer to the police officer when asked "to take a few tests" would be to point out the fact that these tests are "subjective" and not a true indication of impairment.  (i.e. … "Officer, I am sorry, I don't want to be difficult, and I respect your job... but I don't want to take any of these tests because they are subjective measurements and not true indicators of impairment".)  In other words, the officers can articulate themselves in such a manner to make the results come out however they want them to come out.

So… if you find yourself in that situation, (i.e. pulled over by the police for Driving Under the Influence (DUI) investigation... sometimes the best thing to do would be to refuse all such tests, including the SFT's and the Breath or Blood test.  Without that evidence, the police are forced to present other evidence of intoxication such as any driving infractions you made, and personal observations of you after the stop to convince a jury you were impaired.  Those observations are usually the same in every report... such as he/she had "slurred speech" and was "unsteady on his or her feet", as well as the standard "bloodshot and watery eyes".  Of course you almost always get the  "he/she smelled strongly of an intoxicant" either "about his person" or  "from his/her expelled breath".  But even with those standard lines that appear in almost every DUI arrest report, without the evidence from the standardized field sobriety test as well as the Blood or Breath Test...  proof of impairment is a much harder sell to the jury.

Having said that... it is always important to remember this... 

There is not one standard answer to the question of "should I take a test".  Every situation is different.  This blog is simply an article about whether or not you are "required" to take the SFT's, and is not intended as a guide for "every" stop.  

... the best practice, or course, is to NEVER drink and drive!  You need to know your body, and how much you can drink before you become "impaired".  But if you have consumed anything that could impair your ability to drive, or if there is a question about that... play it safe and get another ride home.  Getting arrested is EXPENSIVE, and it has a great effect on your job, your family, and your future.  It is ALWAYS cheaper to get a cab!

With all of this said... if you find yourself charged with DUI in Nashville, and have already submitted to the SFT's and/or blood or breath test…it is not the end of the world, and there IS help out there from experienced attorneys.  There are, actually, MANY ways to refute the reliability of such tests.  For example, they have to be measured and conducted in a very specific way.  The National Traffic and Highway Safety Administration (NTHSA) says that if you vary from the standard protocol of administering these tests, then the results are useless as an indicator of impairment.
But I will save all of that for a future post.

That is why you need an experienced Nashville DUI attorney to guide you through that process of defeating the reliability of those results. You need the best Nashville DUI Lawyer you can find.  

That is why you should contact Ridings Law Group, PC and/or David G. Ridings, directly, as your Nashville DUI Attorney.

Call or email Attorney David G. Ridings today for a free consultation about your case.
Office:  615-851-1888
Email:  David@RidingsLawGroup.com

Monday, October 3, 2011

Changes in Tennessee regarding Bond Restrictions/Conditions for Multiple DUI Offenders


By David G. Ridings, Nashville Criminal Defense Attorney

Recently there have been significant changes in Tennessee Law regarding multiple DUI Offenders.  One such change that has defendants in an uproar, is the new law regarding bond conditions that are set for people charged with DUI Second (2nd) Offense or more.  The conditions are very restrictive, and are instituted BEFORE you are convicted of any crime. 

The conditions/restrictions require the person charged to report, usually by noon the next business day, to the Probation department to be screened and/or fitted for one of the new bond conditions.  The law is summarized below…

D.   Changes in Bond Conditions for Multiple Offenders (See Tennessee Code Annotated § 40-11-118). 

1.There have been significant changes this year (2011) in the way multiple offenders are handled as it relates to bond conditions.  This change means that multiple offenders are given one of several options as a "condition to their bond", and are required to maintain these conditions up to the disposition of the case, while they remain on bond.  The constitutionality of this change is in question by many, but the requirements are simply stated.  The person arrested, even though not yet convicted, must report by noon the next business day and submit to one of the following:
1.     A remote alcohol monitoring device with GPS monitoring placed on your person.
2.     An ignition interlock device installed on your vehicle;
3.     Be randomly drug tested by the probationdepartment.

The legislature was obviously under some pressure to stiffen the penalties for driving in the state of Tennessee while under the influence of alcohol or other intoxicating drug.  So,  as always, you must be very cognizant of how much you have to drink before driving a motor vehicle.  

If, however, you find yourself charged with a DUI in Tennessee, particularly in Nashville, you need the best Nashville DUI Attorney you can find.  You need experience on your side.  You should contact Ridings Law Group, PC for your free consultation today and see how hiring an experienced DUI Lawyer can help your case.

If you need an experienced Nashville Criminal Attorney, contact Ridings Law Group, P.C. today


David G. Ridings, Criminal Law Attorney
Office: 615-851-1888
Cell:     615-394-7611





PS:  Tell me what you think about this new law by commenting on this blog... 

Monday, September 26, 2011

Mandatory Minimum Consequences (Penalties) of a DUI Conviction in Tennessee

By:  David G. Ridings, Nashville Criminal Defense Attorney

I recently taught a Continuing Legal Education (CLE) Class for attorneys in Nashville, TN on the Basics of handling a DUI case.

As a Nashville Criminal Defense Attorney, and a former Nashville Metro Police Officer… most of my examples were based upon a practice in the Nashville General Sessions and Criminal Courts.  However, it was a basic class on handling your first DUI case in any county, and there were some good references for such in the course material.  You can find information on obtaining a recording of that class by clicking here.  

One of the things covered, of course, were the Mandatory Minimum consequences of a DUI conviction in Tennessee.  Here is a short summary of the course material that I prepared for the class, which is also a summary of the Code regarding the penalties for a DUI Conviction in Tennessee.

a.              Tennessee Code Annotated § 55-10-403 provides for the mandatory minimum consequences of a DUI conviction in Tennessee.  The following are examples of such for the respective DUI offenses…
i.      1st DUI – Minimum 48 hrs. in jail, $350.00 fine, Alcohol Safety School, and loss of license for One (1) year.
ii.    2nd DUI –Minimum 45 days in jail, $600.00 fine, Alcohol Safety School, and loss of license for two (2) years.
iii.   3rd DUI- Minimum 120 days in jail, $1,100.00 fine, Alcohol Safety School, and loss of license for three (3) years.
iv.   4th DUI – Considered a Class E Felony, Mandatory Minimum of 150 days in jail, Alcohol Safety School, $3,000.00 fine, loss of license for five (5) years.  

b.               Enhanced sentencing under the code. 
i.      According to Tenn. Code Ann. § 55-10-403, In addition to the other penalties set out for a first offense violation, if at the time of the offense the alcohol concentration in the person's blood or breath is twenty hundredths of one percent (.20%) or more, the minimum period of confinement for the person shall be seven (7) consecutive calendar days rather than forty-eight (48) hours.[Amended effective January 1, 2011]
c.                In addition to the above penalties, the Judge has the discretion to order the defendant to complete 24 hours of Community Service Work (to be performed as liter detail, picking up trash while wearing a jumpsuit that says "I AM A DRUNK DRIVER").
d.              Notwithstanding the mandatory minimums as set out in the code, there are a number of enhancements that could apply to a person convicted of a DUI that could raise the mandatory minimum jail time.  For example,
i.               if at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, the person shall be punished by a mandatory minimum incarceration of thirty (30) days and a mandatory minimum fine of one thousand dollars ($1,000).
ii.              Notwithstanding subdivision (a)(1)(A), if, at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, and the child suffers serious bodily injury as the proximate result of the violation of § 55-10-401, the person commits a Class D felony and shall be punished as provided in § 39-13-106, for vehicular assault.
iii.             Notwithstanding subdivision (a)(1)(A), if, at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, and the child is killed as the proximate result of the violation of § 55-10-401, the person commits a Class B felony and shall be punished as provided in § 39-13-213(b)(2) for vehicular homicide involving intoxication.
Whether it is your first offense, or a multiple offense, a DUI conviction carries serious penalties that can drastically effect your driver's license, your employment, and your freedom.  If you have been charged with a DUI, particularly in Nashville, Tennessee, you need the best Nashville DUI Attorney you can find.  You need an experienced Nashville Criminal Defense Attorney.  Contact us today for your free consultation and see what can happen when you have experience on your side in the courtroom for your DUI charge.

If you need an experienced Nashville Criminal Attorney, contact Ridings Law Group, P.C. today


David G. Ridings, Criminal Law Attorney
Office: 615-851-1888
Cell:    615-394-7611

Monday, August 29, 2011

The New DUI Laws in Tennessee - Changes Regarding Implied Consent Violations

By:  David G. Ridings, Nashville Criminal Defense Attorney

This year defense lawyers, prosecutors, and judges alike are inundated with new changes in the DUI Laws in Tennessee.  There are a number of new pieces of legislation that have required us to take a different approach to handling DUI cases, and has changed the way we strategize in preparing for trails, as well as pleading cases out to reduced or amended charges.


One of the new changes that effects trial strategy for defense lawyers, as well as prosecutors, is the new law on Implied Consent charges. 


First, what is “Implied Consent”?    
In Tennessee, when a person is stopped by law enforcement for suspicion of driving under the influence, they are required by the State of Tennessee to “submit to any” chemical test requested by such law enforcement officer to determine the drug or alcohol content of their blood.  You may not realize it, but you agree (actually you “impliedly consent”) to this when you accept a license in Tennessee, because the issuance of a driver’s license is a privilege, not a right. 


But, there are these little documents called the Constitution of the United States, as well as the Tennessee Constitution, that gives the citizen the “right to refuse” any such test.  Having said that, if you do refuse, you are charged with the violation of the “implied consent law”.   Usually, that charge is civil in nature, and cannot carry any jail time or even a fine.  It can only result in the revocation, by the State, of your license for “breaking your promise”, so-to-speak.

THE NEW LAW:

If the underlying DUI case is bound over to the Grand Jury, the Implied Consent charge, in the past, was bound over with it.  Because of the delay in the court system, this would sometimes mean that the person who “refused to take the test” could keep their license for many months while awaiting trial.  Under some likely pressure for outside groups, the Tennessee Legislature has crafted a new law that changes that in many cases.  They are requiring the Court to dispose of the “Implied Consent” charge at the first appearance, or preliminary hearing in general sessions court… but in any event not later than the case being bound over to the Grand Jury.   Even if the DUI gets bound over, the court is instructed to rule on the Implied Consent, separately.  That could result in the loss of the person’s license for MORE than the statutory time (1 year for first offenders), if things don’t go well upstairs in Criminal Court.  But it definitely results in the loss of the license much sooner than would occur if the case were bound over to the Grand Jury. 


This new law puts pressure on defendants to plead the entire case out at General Sessions, or be forced to lose their license at the preliminary hearing… and possibly again when and if the DUI results in a conviction in Criminal Court.  That could likely have the effect of the citizen losing their license for more than 1 year. 



Tennessee Code Annotated § 55-10-406:

Here is how the pertinent part of the new law reads… Under T.C.A. § 55-10-406, the legislature has required “The determination as to whether a driver violated this subsection (a) shall be made at the driver's first appearance or preliminary hearing in the general sessions court, but no later than the case being bound over to the grand jury, unless the refusal is a misdemeanor offense in which case the determination shall be made by the court which determines whether the driver committed the offense; however, upon the motion of the state, the determination may be made at the same time and by the same court as the court disposing of the offense for which the driver was placed under arrest. If the court finds that the driver violated this subsection (a), except as otherwise provided in subdivision (a)(5), the driver shall not be considered as having committed a criminal offense; however, the court shall revoke the license of the driver for a period of:(i) One (1) year, if the person does not have a prior conviction for a violation of § 55-10-401, § 39-13-213(a)(2), § 39-13-218, § 39-13-106, or § 55-10-418, in this state, or a similar offense in any other jurisdiction;…”


EXCEPTIONS TO THE LAW:
As you see, there is an exception to this requirement, and that is if the “implied consent” charge is charged as a misdemeanor, and not a civil violation.  There is also an exception if the State moves the court to allow the implied consent to remain with the underlying case.  This gives the district attorneys a lot of power and discretion.  In fact, in some jurisdictions (although I have never experienced this in Nashville, Davidson County), I have heard that the state will allow the Implied Consent to be bound over with the underlying DUI if the defendant “waives their right to a preliminary hearing”.  That waiver could affect trial strategy as well.  Waiving that hearing, in my opinion, is almost always bad.  You really need to hear and see the evidence against you at that stage, or risk missing a possible suppressible issue that could result in the case being completely dismissed.  Sometimes, if you get something in return for the waiver, it might be okay. (i.e. bond reduction issues, and the like).  But as a general rule… I don’t waive a preliminary hearing.     


EFFECT ON APPEAL: 
This new law has different effects on appeal, depending upon which type of Implied Consent you are charged with.  If the Court determines at the Preliminary Hearing stage that the defendant is guilty of the Civil Implied Consent charge, any appeal would go to the Civil Circuit Court, and operates differently than an appeal in Criminal Court. 


The law presumably cuts out an exception for “misdemeanor” cases, because the party would have an absolute right to an appeal to Criminal Court, anyway… thus making the determination moot in General Sessions Court.  (i.e. appeals from General Sessions to Criminal Court are automatic, and do not need to cite error.  They also make the determination of the General Sessions Court “without effect” immediately upon the filing of the appeal).  Furthermore, if the case is charged as a misdemeanor, the party could suffer more than the loss of his or her license.  Therefore, the legislature felt that there would be a deprivation of the citizen’s constitutional rights if misdemeanors were included in this process. 


BOTTOM LINE:
The bottom line is that the new changes in the DUI laws have serious effect on the rights and trial strategy of the defendant.  You need an experienced attorney to help you through this process and protect your rights.  Hopefully you won’t find yourself in this dilemma, but if you do… you need to know who to call.  You need an experienced Nashville Criminal Attorney.  Contact Ridings Law Group, P.C. today


David G. Ridings, Criminal Law Attorney
Office: 615-851-1888
Cell:    615-394-7611