Archive for category Frequently Asked Questions
Are Reductions Routine in 1st Offense DUI Cases?
Posted by Sara Compher-Rice in DUI First Offense Penalties, Frequently Asked Questions, Hiring a Tennessee DUI Attorney, Tennessee DUI Penalties on April 13th, 2010
Most new clients we meet have the incorrect preconceived notion that as long as they have never been in trouble before (no convictions, no traffic tickets, etc.), the State will simply agree to reduce the pending DUI 1st Offense to something such as a Reckless Driving. In reality, a person’s prior criminal history, or lack thereof, is seldom relevant to the case unless the person is convicted and facing sentencing.
Over the past several decades, the trend in our society has been toward harsher penalties and more conservative laws for driving under the influence. A recent story in the ABA Journal highlights one reason that prosecutors are hesitant to be lenient on the punishment for DUI offenders. DUI prosecutors often state that they cannot reduce a DUI, even if just a first offense, because the defendant may then go out and repeat the behavior of driving while impaired, endangering the lives the community. This exact scenario, as reported by the ABA Journal, recently played out in Maryland. However, rather than striking and injuring a citizen at large, the defendant in question struck and injured a retired Maryland County Judge and his wife. The same Judge had previously shown leniency to the defendant, suspending his DUI sentence (meaning he did not have serve any time in jail).
Accounts such as these provide prosecutors, state legislators and private organizations (such as MADD) with the ammunition needed to justify the “no tolerance” trend toward DUI offenders. Unfortunately, although each Driving Under the Influence case is quite unique and bears individual scrutiny to determine whether a reduction is appropriate, many jurisdictions are pushing for convictions in all cases under the assumption that the defendant will re-offend.
This trend only highlights the importance of selecting a qualified attorney to handle your DUI case. Never assume that you can handle the case yourself or hire the cheapest lawyer you can find because you are assured a reduced charge due to your clean record. Do your homework and hire the very best DUI defense attorney that you can afford. For more information on how to select a Tennessee DUI attorney, click here. For information about a Tennessee DUI charge, you may contact Steve Oberman or Sara Compher-Rice at (865) 249-7200.
DUI Charge Reduced to Reckless Driving
Posted by Steve Oberman in Court Procedures, Frequently Asked Questions, Hiring a Tennessee DUI Attorney, Tennessee DUI Consequences, Tennessee DUI Penalties on November 18th, 2009
We are often asked by clients charged with the offense of Driving Under the Influence of an Intoxicant (DUI, DWI, OWI) about cases where others have had a DUI offense amended to the offense of Reckless Driving by plea agreement. A plea agreement in theory means that the defendant pleads guilty or complies with some other requirements such as payment of a fine or court costs, performance of volunteer community work, etc., in return for an agreed upon disposition.
Most plea agreements are compromise dispositions to avoid the uncertainty and expense of a hearing and/or trial. Any plea agreement must be approved by the presiding judge to be certain the plea agreement is justified by the facts as applied to the law. If not, the judge may reject the plea agreement. Some of the factors reviewed by a prosecutor (in no particular order) include the:
- Facts of the case surrounding the arrest;
- Nature of the offense involved;
- Anticipated credibility of the prosecution witness(es);
- Anticipated credibility of the defense witness(es); and
- Skill level of the defense attorney.
Accordingly, where the facts justify an amendment from the offense of DUI to the offense of Reckless Driving, a plea agreement is reached between the parties to conclude the case in that fashion. Agreements may range from a set punishment on a plea by the defendant to the offense charged, to the prosecution dropping the case entirely.
Readers of this blog should understand that the only reason cases are amended is when the prosecution believes it has a reasonable chance of losing the case. Obviously, the more the prosecution believes it will lose the case, the better the plea agreement that will be offered to the defendant. The prosecution does not want to waste time or effort attempting to convict somebody when the chances of doing so are minimal. Plea agreements are not made on the basis of other factors such as relationships or friendships between the officers, lawyers or judges. Accordingly, a defendant should be wary of hiring a DUI attorney who makes such promises.
Health Care Professionals and Traffic Arrests
Posted by Steve Oberman in Frequently Asked Questions, Tennessee DUI Consequences, Tennessee Traffic Violations on November 17th, 2009
When a doctor or other health care professional is arrested for a traffic violation, she may need two attorneys. One attorney will defend the traffic violation. But health care professionals who are actually arrested may need a second attorney to advise them on whether or not to report the arrest, and to what agency the arrest should be reported. Doctors and certain other health professionals are required to report certain matters to the Tennessee Board of Medical Examiners (the Board).
If you are a physician, before you contact the Board of Medical Examiners, you should first contact a knowledgeable, experienced Tennessee criminal defense attorney who can advise you if it is necessary to retain an attorney who has substantial experience in representing doctors before the Board. Doctors should not contact the Board prior to talking with a qualified attorney, as the Board may later become adversarial.
The Board requires doctors to report any conviction to their physician profile, which is accessible to the public. However, whether or not physicians and other health care professionals are required to report arrests to the Board is less clear. One thing is certain: when health care providers renew their licenses, they must be truthful when answering questions on the renewal form. If you are a physician, you should be aware that when it comes to Tennessee traffic violations and criminal offenses such as Driving Under the Influence of an intoxicant (DUI, DWI, or OWI) or even Reckless Driving, there are certain rules with which you must comply with in order to maintain your professional license. If you are arrested for a traffic violation of any kind, consult with a Tennessee criminal defense attorney familiar with the requirements of the licensing Board.
Tennessee DUI Laws on “Let’s Talk Law with Steve Oberman & Sara Compher-Rice”
Posted by Steve Oberman in DUI Penalties, Frequently Asked Questions, Tennessee DUI Consequences, Tennessee DUI Information, Tennessee DUI News, Tennessee DUI Penalties on August 27th, 2009
Tune in to WNOX-FM 100.3 NewsTalk 100 this Sunday, August 30, 2009, when Steve and Sara will be discussing the topic of “Tennessee DUI Laws.” You can also listen live via the web by visiting http://www.wnoxnewstalk.com.
We encourage you to call during the show with your questions about the DUI laws in Tennessee by dialing (865) 656-TALK (8255) or (800) 951-TALK (8255). U.S. Cellular and AT&T Wireless customers can also place a free call by dialing *100. If you prefer, feel free to post your questions and/or comments here on our blog. We will review the blog before the show and attempt to answer your questions on the air.
Tips for Selecting and Working with a DUI Lawyer
Posted by Sara Compher-Rice in Frequently Asked Questions, Hiring a Tennessee DUI Attorney, Uncategorized on August 17th, 2009
Unfortunately most people charged with a Tennessee DUI offense do not realize that the selection of his or her lawyer can be life-altering decision. Many people charged with a DUI in Tennessee find themselves in the midst of the criminal justice system for the first time in their lives. The experience is often overwhelming and terrifying. The worst thing a person can do is hire an attorney at random to handle a driving under the influence case. Steve Oberman and I often advise potential clients to not rely solely on the biggest yellow page ad or a billboard advertisement. Your decision should be based upon careful research and reflection.
On the August 16th show of “Let’s Talk Law with Steve Oberman and Sara Compher-Rice,” we were fortunate to have two guests to discuss this issue and answer questions from our listeners on the topic of Selecting and Working with a Lawyer. Attorneys Tom Scott and Mark Britton, for providing our listeners invaluable information relating to selecting and working with a lawyer.
Tom Scott is currently serving as the Chair of the Tennessee Board of Professional Responsibility (BPR). Tom provided us with information on the role of the Tennessee BPR and explained how the BPR fields and processes complaints of clients against lawyers. We also learned that the general public can visit the BPR website to search for any disciplinary action taken against attorneys. For more information on the Tennessee Board of Professional Responsibility and the Board can assist you, visit http://www.tbpr.org/ or call 800-486-5714.
Mark Britton is the CEO and founder of Avvo. Avvo.com is a resource for consumers to use when researching potential attorneys. Unlike other lawyer rating services, Avvo provides both positive and negative feedback on attorneys. For instance, Avvo works with the Tennessee Board of Professional Responsibility to inform clients of any disciplinary action taken against a lawyer.
The decision of which attorney to hire is often one of the most crucial decisions a person will make in his or her life. Tom and Mark have provided an excellent starting point for the potentially life-altering lawyer search. Once you have completed your initial research, you should follow up by asking those you know and trust (friends, family, neighbors, other lawyers and professionals) for recommendations. Finally, take time to meet with the potential lawyer to assess his or her skill level, attentiveness and professionalism. You may also visit our website for examples of questions to ask during your interview.
Boating Under the Influence (BUI) in Tennessee
Posted by Steve Oberman in Frequently Asked Questions, Tennessee DUI Information, Tennessee DUI News on July 2nd, 2009
“TWRA wants boaters to recognize the effects and consequences of alcohol use while boating. In a boat on the water, consuming one beer is equivalent to drinking three beers on land because of external stressors such as engine vibration, wave motion and glare from the sun. Operating a boat with a Blood Alcohol Content of .08 or higher is illegal in Tennessee, the same as operating a motor vehicle.”
Based upon this statement found on the Tennessee Wildlife Resources Agency website, officers on Tennessee waterways may be more likely to arrest someone for boating under the influence (BUI) than someone who consumed the same amount of alcohol for the offense of driving a motor vehicle under the influence (DUI).
It is important for Tennessee residents and visitors alike to realize that to be subject to arrest for the offense of boating under the influence (BUI), one need only:
1. Be operating any vessel subject to registration (unlike the Tennessee DUI laws which require the vehicle to be motorized);
2. While on public waters of the state;
3. While
a. Under the influence of any intoxicant OR
b. With a blood alcohol content of .08 percent or greater.
Tennessee law also provides certain legal exceptions in boating under the influence (BUI) cases. If you are arrested for BUI in Tennessee, you should promptly consult with an attorney about the facts of your case to preserve defenses and avoid the onerous penalties involved with a BUI conviction.
Because of the similarities in why persons are arrested for boating under the influence and for driving under the influence, persons charged with BUI in Tennessee should seek an attorney experienced in the intricacies of DUI defense. It is also just as important in BUI cases as it is in DUI cases that the defense investigation begins as soon as possible after the arrest in order to obtain the best possible chance of a successful outcome.
4th of July Tennessee Sobriety Checkpoints (DUI Roadblocks)
Posted by Sara Compher-Rice in Frequently Asked Questions, Tennessee DUI Information, Tennessee DUI News on July 2nd, 2009
The Tennessee Highway Patrol has announced plans to conduct sobriety (DUI) checkpoints over the holiday weekend from Thursday night to Sunday night. The Tennessee Supreme Court has held that sobriety checkpoints, often known as DUI roadblocks, are permissible under the Tennessee Constitution. In State v. Downey, the Court held that the prevention of drunk driving in Tennessee was enough of a compelling state interest to justify the intrusive nature of DUI checkpoints.
Although Tennessee’s high court has ruled that sobriety checkpoints are permitted, law enforcement agencies are still required to follow very particular policies and procedures when establishing and conducting DUI roadblocks. Should you have the misfortune of being stopped at a Tennessee DUI checkpoint and arrested or cited for DUI or any crime or traffic violation, you should immediately consult with a Tennessee attorney who is knowledgeable about the area of DUI defense law to determine if, in fact, the proper procedures were followed.
Please click here for a list of DUI roadblock locations across Tennessee.
Does a “designated driver” owe a legal duty to aid or protect intoxicated passengers?
Posted by Steve Oberman in DUI Penalties, Frequently Asked Questions, Tennessee DUI Consequences, Tennessee DUI Penalties on June 1st, 2009
This question came before the Tennessee Supreme Court in 2008. In this case, Downs ex rel. Downs v. Bush, 263 S.W.3d 812 (Tenn. 2008), the mother of a Ryan Downs, a passenger in the bed of his friend’s pick up truck, filed a wrongful death complaint against several of her son’s friends when Ryan, after becoming intoxicated, exited the bed of the truck, ran onto the highway, and was struck by two vehicles, causing Ryan’s death.
The Tennessee Supreme Court considered whether Mr. Downs’ friends had a special duty to aid or protect Mr. Downs because of their close relationship as best friends and roommates. The Court held that the law did not impose any special relationship upon the friends of the deceased by virtue of this relationship.
Furthermore, the Court ruled, in the first case of this kind to be brought before the Court, that the “designated driver” did not owe Mr. Downs any special legal duty more than the customary duty to exercise reasonable care when driving the vehicle. The Court ruled against Mrs. Downs’ argument that a designated driver was required to take affirmative action to keep intoxicated passengers inside the passenger compartment of the vehicle and to ensure that the intoxicated passenger is not abandoned in a position of peril along the journey. Instead, the Tennessee Supreme Court ruled that the public was better served by encouraging individuals to serve as designated drivers rather than adopting a policy that could potentially discourage the practice.
To rule otherwise, the Tennessee Supreme Court would have impliedly discouraged designated drivers and left persons who were intoxicated or otherwise under the influence of drugs and/or alcohol to drive under the influence, thus committing the criminal offense of Driving Under the Influence (DUI) in violation Of Tennessee Code Annotated section 55-10-401. While the facts of this case cause one to be very sympathetic toward the family of the deceased, it is Mr. Oberman’s opinion that the Tennessee Supreme Court made the correct decision.
Have a Happy and Safe St. Patrick’s Day
Posted by Sara Compher-Rice in Frequently Asked Questions on March 17th, 2009
Saint Patrick’s Day is often associated with the consumption of alcoholic beverages. If you are celebrating this holiday in such a manner, you should be careful to recognize that your alcohol consumption may impair your ability to drive. You may not realize that your own ability to know if you are impaired or under the influence may be affected by alcohol. The safe way to celebrate is to be certain you have a designated driver who is not drinking alcohol or taking any medications or drugs. If you even think you may be impaired, you should call a cab or get a ride with a friend.
Even if you conclude that you are not too impaired to get behind the wheel, keep in mind that a law enforcement officer could reach a different conclusion. Should you be stopped and suspected of driving under the influence, you may find yourself with several questions relating to Tennessee DUI laws, such as:
- Am I required to take the field sobriety tests?
- Do I have a legal right to refuse a breath or blood test (chemical test)?
- Do I have a right to select between a blood or breath test?
- Do I have a right to consult with my lawyer prior to taking field sobriety tests or a chemical test?
- Do I have a right to obtain my own blood alcohol test?
We would encourage you to visit our website at http://www.tndui.com/faqs/faqs.html for the detailed answers to these and many other frequently asked questions relating to a DUI traffic stop.