Fourth of July Holiday and Fireworks

With the Fourth of July Holiday quickly approaching, it is important to take a step back from the lake adventures and cookouts to think of our great country and how many of our forefathers fought and persevered for our country’s Independence around 242 years ago. As with every Fourth of July Holiday, the city of Knoxville will have a celebration (rain or shine) that culminates with Fireworks (free to the public) starting around 4:00 p.m. and the Fireworks to be deployed around 9:45 p.m. Information regarding the celebration may be found here.

All of us love fireworks (except for maybe our four-legged family members). Please remember that the City of Knoxville prohibits the possession, transportation, storage, manufacture, sale, handling and discharge of fireworks without a permit from the Fire Marshall (See the Knoxville Tennessee City Code of Ordinances, Section 11-5 through 11-7). Furthermore, violation of this City Ordinance is a Misdemeanor with a fine of up to $500.00 and/or 30 days in jail for each separate offense (See the Knoxville Tennessee City Code of Ordinances, Section 1-9; General penalty- continuing violations). In other words, shooting (even simply handling) fireworks without a permit in the City of Knoxville can lead to criminal prosecution that may result in a criminal conviction on your criminal public record that may hinder your ability to obtain a job or your ability to receive a scholarship for college/higher education. Additionally, Knox County (outside the city limits of Knoxville) does not allow the shooting/possession of fireworks.

The criminal defense lawyers at Oberman & Rice are always willing to help those who have been arrest or cited for a criminal offense. Our lawyers are available 24/7 to answer questions regarding an arrest or citation for any criminal offense. Please review our website for more information or call us with questions at (865) 249-7200.

 

 

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Restoration of Driving Privileges For HMVO Offenders

Three years from the date of a final order declaring a person an Habitual Motor Vehicle Offender, the person may file at petition seeking restoration of his or her driving privileges.  The petition may be filed with the court who entered the HMVO order or any criminal court in the person’s county of residence.  Although the law indicates a mandatory minimum 3-year period for the driver’s license revocation of an HMVO offender, upon the expiration of the 3 years, the offender is not permitted to drive in Tennessee.  The Habitual Motor Vehicle Offender must first obtain permission from a court and take the necessary steps thereafter to have his or her license reinstated by the Tennessee Department of Safety.

The court may, in its discretion, restore the person’s driving privilege and may also require.  The court may also order terms and conditions relating to the issuance of the habitual offender’s driver’s license.  The habitual offender is further required to meet all requirements of the Tennessee financial responsibility (insurance) law.

Although the law indicates a mandatory minimum 3-year period for the driver’s license revocation of an HMVO offender, upon the expiration of the 3 years, the offender is not permitted to drive in Tennessee.  The Habitual Motor Vehicle Offender must first obtain permission from a court and take the necessary steps thereafter to have his or her license reinstated by the Tennessee Department of Safety.  If the persons drives before completing the appropriate procedures, the HMVO offender may be subjected to criminal penalties.

If you have immediate questions about the Tennessee HMVO law, please feel free to the Oberman and Rice Law Firm at (865) 249-7200.

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Tennessee HMVO Violation Penalties

Once a person is declared an Habitual Motor Vehicle Offender, the penalties for driving are quite severe.  The person is prohibited from driving in Tennessee while the HMVO judgment or order prohibiting driving is in effect.  If found operating a motor vehicle, the HMVO offender commits a Class E felony.  No traffic or criminal violation is required for an HMVO violation–the only requirement is that the person be found to be operating a motor vehicle in Tennessee.

If convicted of the felony offense of Habitual Motor Vehicle Offender, the person may be sentenced to serve one to six years imprisonment and be subjected to a fine not exceeding $3,000.00.

If you have any questions about the Tennessee HMVO law or other Tennessee criminal offenses, please contact the Oberman and Rice Law Firm at (865) 249-7200.

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How To Be Declared a TN Habitual Motor Vehicle Offender

The Tennessee Department of Safety is tasked with keeping records of convictions of the HMVO qualifying offenses.  Once the records reveal that an individual has accumulated the appropriate number of convictions (3 within 5 years or 5 within 10 years), the commissioner of the Tennessee Department of Safety shall furnish this record to the district attorney’s office in the district where the individual either resides or may be found.

Once the district attorney’s office receives the record, they have a duty to file a petition against the individual in the court of general criminal jurisdiction.  However, a record from the TDOS is not required before a petition may be filed.  After the petition is filed, the court must issue an Order directing the individual (defendant) named in the petition to appear in court to show cause why the person should not be barred from operating a motor vehicle in Tennessee.

If, following the proper procedures and findings, the court finds that the defendant is an habitual offender, the court shall then issue an order prohibiting the defendant from operating a moron vehicle in Tennessee.  The defendant is further required to surrender his or her driver’s license once declared an Habitual Motor Vehicle Offender.  The defendant is prohibited from driving under a court restores his or her driving privileges, and in no case may this restoration occur less than three years from the initial HMVO order date.

Please visit our blog in the coming days for discussions on the steps to have driving privileges restored and the criminal penalties associated with an HMVO violation.  Should you have any questions about the Tennessee Habitual Motor Vehicle Offender law, please feel free to the Oberman and Rice Law Firm at (865) 249-7200.

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Drinking and Boating

Like drinking and driving, the simple act of drinking and boating is not itself against the the law in Tennessee.  However, operating a watercraft (boat) that is subject to registration in Tennessee while under the influence is a criminal offense.  According to the Tennessee Wildlife Resources Agency (TWRA) the Memorial Day holiday weekend is one of the busiest boating weekends, as it is regarded as the unofficial start of summer.  TWRA officers are sure to be patrolling the waterways to enforce Tennessee boating safety.

Boaters in Tennessee are prohibited operating a boat “while under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.”  Tennessee Code Annotated § 69-9-217(a).  Tennessee law further provides a per se BUI law, i.e. boaters cannot operate a vessel while having a blood alcohol concentration of .08% or greater. Tennessee Code Annotated § 69-9-217(j)(2).

Like a Tennessee driving under the influence charge, the issues and laws surrounding a Tennessee BUI can be complicated and technical.  If you’ve been charged with Boating Under the Influence in Tennessee or have any questions about the offense of BUI, please contact the Oberman and Rice Law Firm at (865) 249-7200.

Additional information about Boating Under the Influence (BUI), as well as the related crime of Driving Under the Influence (DUI), can be also found on the Oberman & Rice websites at www.tndui.comand www.duiknoxville.com.

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Who Qualifies As a Tennessee Habitual Motor Vehicle Offender?

A Tennessee offender may be declared by a court to be an Habitual Motor Vehicle Offender (HMVO) if convicted of certain Tennessee crimes, specifically–three or more convictions within five years or five or more convictions within ten years.  The qualifying Tennessee crimes include:

  • Voluntary manslaughter resulting from the operation of a motor vehicle;
  • Vehicular homicide;
  • Involuntary manslaughter resulting from the operation of a motor vehicle;
  • Vehicular assault;
  • Improperly passing a stopped school bus;
  • Leaving the scene of an accident that resulted in injury or death of any person;
  • Leaving the scene of an accident that resulted only in damage to a vehicle driven or attended by any person;
  • Driving under the influence (DUI);
  • Aggravated vehicular homicide;
  • Adult driving while impaired (Adult DWI);
  • Reckless Driving;
  • Drag Racing;
  • Evading arrest in a motor vehicle;
  • Reckless endangerment by use of a motor vehicle; or
  • Driving on a cancelled, suspended, or revoked license if the underlying offense resulting in the cancellation, suspension, or revocation was vehicular assault, vehicular homicide, or DUI.

 Please visit our blog in the coming days for discussions on how to be declared an Habitual Motor Vehicle Offender, the steps to have driving privileges restored, and the criminal penalties associated with an HMVO violation.  Should you have any questions about the Tennessee Habitual Motor Vehicle Offender law, please feel free to the Oberman and Rice Law Firm at (865) 249-7200.

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Habitual Motor Vehicle Offender Status (HMVO)

Tennessee has established the Habitual Motor Vehicle Offender (HMVO) Act, also often referred to as the Tennessee Motor Vehicle Habitual Offender (MVHO) Act, to provide safety for all citizens who travel upon Tennessee roadways.  The Tennessee HMVO law denies the privilege of operating motor vehicles within our state to those whose conduct and driving record demonstrate an indifference to the safety and welfare of others.  The law further serves as a deterrent to repetition of unlawful acts.

The next several posts will focus on the details of the Tennessee Habitual Motor Vehicle Offender classification. How does a motorist qualify as an HMVO offender? What penalties are associated with a Tennessee HMVO violation? How and when can the driving privileges of a Tennessee motorist who has been declared an MVHO offender be restored? Please visit our blog in the coming days and weeks as we explore the answers to these questions.

In the meantime, if you have immediate questions about the Tennessee HMVO law, please feel free to the Oberman and Rice Law Firm at (865) 249-7200.

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Tennessee Highway Patrol Checkpoints planned for the upcoming Memorial Day 2018 Weekend

With just a few weeks until lake season begins in East Tennessee, motorists who plan on traveling to enjoy the upcoming Memorial Day weekend need to be mindful while driving to the lake festivities and family cookouts. Tennessee Highway Patrol troopers will be out in force during Memorial Day weekend ensuring that motorists are not driving while impaired/aggressively or committing traffic violations.

The 2018 holiday enforcement period begins Friday, May 25 and concludes Monday, May 28. Two Sobriety checkpoints are planned in Knox County on May 25. The first scheduled Sobriety Checkpoint will be located on Highway 33 at Loyston Road and the second Sobriety Checkpoint will be located on Northshore Drive west of Concord Road. Additionally, a Seatbelt checkpoint is planned in Knox County on May 26, on Ogle Avenue at Martin Mill Pike. Sobriety Checkpoints are also planned throughout the holiday weekend in Anderson and Sevier Counties. For a list of all the planned checkpoints throughout East Tennessee in May, please click here.

The DUI defense lawyers at Oberman & Rice are always willing to help those who may be falsely accused, but we’d prefer that the readers of this blog not place themselves in a position to be suspected of driving under the influence of an intoxicant. Please review our website for more information or call us with questions at (865) 249-7200.

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When the State’s Expert Witness Has a Financial Interest in DUI Convictions

On February 6, 2018, the Tennessee Court of Criminal Appeals ruled that Tennessee Code Annotated § 55-10-413(f), which establishes a BADT fee, is unconstitutional as a violation of the Due Process Clause of the Fourteenth Amendment and article I, section 8 of the Tennessee Constitution.

What is a BADT fee?

The Tennessee DUI law in question provides that,

In additional to all other fines, fees, costs, and punishments now prescribed by law, . . . a blood alcohol or drug concentration test (BADT) fee in the amount of two hundred fifty dollars ($250) shall be assessed upon a conviction for driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218, for each offender who has taken a breath alcohol test on an evidential breath testing unit provided, maintained, and administered by a law enforcement agency for the purpose of determining the breath alcohol content or has submitted to a chemical test to determine the alcohol or drug content of the blood or urine. T.C.A. § 55-10-413(f)(2017).[1]

The statute further indicates that the fee shall be collected by the court clerk and deposited in the TBI toxicology unit intoxication testing fund and may be used by the TBI “to employ personnel, purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the bureau to operate in a more efficient and expeditious manner. T.C.A. § 55-10-413(f)(2) and (3)(2017).

As noted by the Tennessee Court of Criminal Appeals, this blood alcohol or drug concentration test (BADT) fee provides the Tennessee Bureau of Investigation (TBI) with a direct financial interest in securing DUI-related convictions because this fee is not collected if the defendant’s charges are dismissed, reduced, or if the defendant is acquitted.

Due Process Requires Fairness and Impartiality

“When discussing the importance of due process protections, this court has reiterated that ‘[w]e cannot allow public confidence in the complete fairness and impartiality of our tribunals to be eroded and nothing which casts any doubt on the fairness of the proceedings should be tolerated.’” State v. Decosimo, No. E2017-00696-CCA-R3-CD, at *24 (Tenn. Crim. App. Feb. 6, 2018)(citations omitted).

Although they are employed by the state, TBI forensic scientists are expected to remain neutral and unbiased to protect the integrity of the criminal justice system. The BADT fee, however, provides these forensic scientists with a pecuniary interest because they may benefit from the collected fee (continued employment, salaries, equipment, and training). The court also noted that although a TBI analyst could lost his job if test results are falsified, the analysts would “most certainly lose their jobs if funding for their positions disappears, a result of which these forensic scientist are no doubt well aware.” Such a fee system calls into question the TBI forensic test results and, therefore, violated due process. State v. Decosimo, No. E2017-00696-CCA-R3-CD, at *27 (Tenn. Crim. App. Feb. 6, 2018)(citations omitted).

Impact of the Unconstitutionality of the BADT Fee

Attorneys across the state of Tennessee are taking a closer look at all DUI cases involving a chemical test sample. Depending on the facts of the case, and the jurisdiction, DUI defendants could benefit from the suppression of the blood or breath test results from evidence. If the evidence of impairment is limited to the chemical test result, attorneys may even find success in arguing motions to dismiss the criminal case against the defendant.

The Tennessee Attorney General’s office has filed an application to the Tennessee Supreme Court for permission to appeal the Tennessee Court of Criminal Appeal’s decision. This Rule 11 application highlights the need for an urgent, “expeditious review” given the fact that the Decosimo ruling impacts thousands of past convictions as well as current and future DUI-related prosecutions. Although it is likely that the Tennessee Supreme Court will agree to hear the appeal, it remains to be seen whether they will ultimately uphold the Tennessee Court of Criminal Appeals’ ruling that the BADT fee is unconstitutional, or if the court will reverse the decision and find the fee constitutionally permissible.

If you would like further information about Tennessee DUI laws, or your case, you may contact the Oberman and Rice Law Firm at (865) 249-7200.

[1] At the time of the defendant’s arrest in State v. Decosimo, the relevant statute number was T.C.A. § 55-10-419 (2012). Since that time, this code section was transferred to the current location of § 55-10-413 and minor changes have been made by the Tennessee legislature.

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THP checkpoints planned for the upcoming Labor Day 2017 Weekend

Motorists need to be mindful during the upcoming Labor Day Weekend while driving to the lake and family cookouts. Tennessee Highway Patrol troopers will be out in force this Labor Day weekend ensuring that motorists are not driving while impaired/aggressively or committing traffic violations.

The 2017 holiday enforcement period begins Friday, September 1, and concludes Monday, September 4. Driver’s license checkpoints are planned in a number of Tennessee counties including Knox County on Sept September 1, at S.R. 61 Emory Road at Washington Pike and in Campbell County at SR 63 at Campbell/Claiborne line. Sobriety checkpoints are also planned throughout the holiday weekend. For a list of all the planned checkpoints in September click here.

The DUI defense lawyers at Oberman & Rice are always willing to help those who may be falsely accused, but we’d prefer that the readers of this blog not place themselves in a position to be suspected of driving under the influence of an intoxicant. Please review our website for more information or call us with questions at (865) 249-7200.

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