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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

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