A registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed emergency medical technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified and/or nationally registered phlebotomist or at the direction of a medical examiner or other physician holding an unlimited license to practice medicine in Tennessee under procedures established by the department of health.

Remarkably, there are no provisions in this bill detailing the amount of training or even requiring that the person drawing the blood pass a proficiency test.  Nor are there provisions requiring a judge to determine that probable cause (the legal grounds required for arrest) exists before the blood is taken from the body.

While I am certainly far from a health care professional, I have had substantial experience as a non-certified phlebotomist when I worked in a hospital blood laboratory, albeit about 35 years ago.  I am aware of some of the potential complications from an improper blood draw such as thrombophlebitis, infection, damage to blood vessels, hematoma/bruising, and damage to the nerves near the venipuncture site.

Moreover, the proposed law gives no consideration to the fact that the officer may suffer from a contagious disease, is working in poor lighting conditions, or may be distracted by law enforcement duties during the blood draw. If a medical condition occurs during a blood draw—the criminally accused would have no immediate access to a healthcare provider for treatment.  In some situations, such as infection, the symptoms, etc. may manifest long after the actual blood draw.

Not surprisingly, the proposed law provides that the person drawing blood shall not incur any civil or criminal liability as a result of drawing the blood, except for damages that may result from negligence.  This means that a law enforcement officer with minimal training would be allowed to draw blood from a suspect with their arm on the hood of the police vehicle or similar unsterile environment.  This could be done without supervision from any other person, opening the door to abuse and negligence that would be difficult to prove except in a rare circumstance where the invasion of one’s body would be documented by video.

In 2006, Ann Japenga, a reporter for the New York Times, wrote about her debilitating injury that, after much suffering, was determined to have been caused by the needle going through her vein and causing dangerous but invisible bleeding into her arm.  The injury, caused by a phlebotomist in her doctor’s office, required surgery “to prevent permanent loss of the use of [her] arm, as well as a condition called “claw hand” that causes your digits to curl up like a sea anemone.”  The full article can be accessed here: http://www.nytimes.com/2006/05/30/health/30case.html.

Simply allowing the injured party to sue for negligence, as Senator Kelsey proposes, is not an appropriate remedy.  This type of case would have limited allowances for recovery.  With few exceptions, Tennessee law limits recovery against governmental entities to the amount of $300,000.00 pursuant to The Governmental Tort Liability Act.  Furthermore, this type of recovery would likely require the services of a civil lawyer who would (and should) charge a fee for his or her services.  Accordingly, the injured party would likely receive less than two-thirds of a recovery after attorney fees.  Moreover, expert fees, deposition costs and other trial expenses would have to be borne by the injured party.

If you have ever had a medical professional who is certified to draw your blood need to “stick” you on several occasions to obtain a sufficient sample, you can only imagine the type of abuse a suspect would receive from an uncertified law enforcement official.  I urge you to contact your Legislator to vote against this bill.

It is also most interesting that Senator Kelsey is sponsoring another bill making it a crime that carries a penalty of up to 30 days in jail for a law enforcement officer to unlawfully install a tracking device on a person or object (2012 Senate Bill 3046).  If he doesn’t trust a police officer to comply with a citizen’s right to privacy, how in the world would he expect an officer not to abuse a suspect when they stick a sharp object into their arm or other part of their body?

The lawyers at Oberman & Rice frequently monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases.  Should you have any questions about a Tennessee DUI issue, you may contact Steve, Sara, or Nate by calling (865) 249-7200.  You may also wish to review our website for additional information about Tennessee DUI Laws by clicking here.

It is important for Tennessee motorist to understand that even if a checkpoint is designed to verify driver’s licenses, the Troopers conducting the stops are trained to detect and investigate those drivers they suspect of Driving Under the Influence (DUI). For instance, the THP participates in the Governor’s Highway Safety Office campaign–Booze It & Lose It!

The announced locations for checkpoints, as reported in the Knoxville News Sentinel, are:

Friday, March 9 – Schaad Road – West of Pleasant Ridge Road

Friday, March 23 – Oak Ridge Highway (Route 62) – East of Pellissippi Parkway (Route 162)

Friday, April 6 – Maynardville Highway (Route 33) – At Loyston Road

Friday, April 13 -  Schaad Road – West of Pleasant Ridge Road

Friday, April 20 – Schaad Road – West of Pleasant Ridge Road

Anyone detained and then arrested at a Sobriety Checkpoint or Driver’s License Roadside Safety Checkpoint should immediately contact a Tennessee attorney familiar with DUI Roadblocks or Driver’s License Checkpoints.  For more information about the crime of DUI or about your legal rights relating to a Tennessee Highway Patrol roadblock, Sara, Steve, or Nate are available by calling (865) 249-7200.

Tennessee DUI law requires minimum amounts of jail time to be served for all DUI convictions.  If a defendant is convicted of a DUI, the judge MUST sentence that defendant to the minimum amount of time established by Tennessee DUI law, ranging from 48 hours in jail up to 150 days in jail, depending upon the offense.  On the other hand, the judge may sentence a defendant to more than the mandatory minimum amount of time – this is more likely to occur with multiple convictions.  Please visit our website for a full list of penalties for DUI convictions.

TN DUI lawyers know that any time in jail causes a major disruption in a person’s life, which is why anyone charged with DUI in Tennessee should consult with a Tennessee DUI attorney as soon as possible.  If you have questions about your Tennessee DUI charge and associated penalties, our lawyers are available to assist you.  Sara, Steve, or Nate will be happy to speak with you at (865) 249-7200.  

No matter what testing mechanism is used, the tests are not foolproof.  Machines malfunction.  Like a toaster, dishwasher, or hair dryer, machines wear down and break over time. Devices that collect and analyze blood, breath and urine are no different.  Some machines and methods are less reliable than others.  The tests are further subject to error by those persons involved in the collection and analysis processes.

A Tennessee DUI attorney should be familiar with the different tests and machines used in Tennessee.  Hiring a motivated Criminal Defense lawyer gives someone the opportunity to fight all of the facts.  In some cases, it may be possible to prevent the chemical test result from being used as evidence.

Additional information about Tennessee DUI offenses can be found on our websites at www.tndui.com and www.duiknoxville.com.   You may also speak with one of our attorneys, You may reach Steve Oberman, Sara Compher-Rice or Nate Evans, by calling (865) 249-7200.

When a person misses a court date, the court may issue a warrant for that person’s arrest or may charge that person with “Failure to Appear” in court, a separate, Class A Misdemeanor.  The effect of a missed court date will vary in each case depending on the presiding judge, the facts of the case, the amount of advance notice provided to the court, and the practices of the local county.

If a good reason exists as to why a person will miss a court date, a judge may show leniency.  In this type of situation, an experienced Tennessee Criminal Defense lawyer will work to avoid an arrest or incarceration for his or her client.  If you missed your court date and do not have a Tennessee Criminal Defense lawyer working for you, contact one immediately.

If you have questions about your Tennessee DUI or other criminal charge, our lawyers are available to assist you.  Sara, Steve, or Nate will be happy to speak with you at (865) 249-7200.  You may also review our websites at www.tndui.com, www.duiknoxville.com and www.tncriminaldefense.com.

Any DUI conviction from another state may be used against you if arrested for a Tennessee DUI offense.  If the time criteria is met, a prior, out-of-state DUI may be used to enhance your Tennessee DUI conviction to a DUI second offense or greater, depending upon the facts of your prior conviction(s).  Tennessee does honor DUI convictions from all other jurisdictions in the country.

It is important to note that the arresting officer may not know about the out-of-state conviction(s) at the time of the Tennessee DUI arrest.  The officer’s initial arrest warrant, and any paperwork a person receives following a DUI arrest, may state that the charge is DUI, first offense.   However, the state prosecutor may amend the initial Tennessee DUI charge to multiple offense DUI  when more information becomes available.

Tennessee DUI law allows for a person to challenge an out-of-state conviction, and a skilled DUI attorney may prevent it from being used against you in your Tennessee DUI case.  Be sure to consult with a Tennessee Defense Attorney to determine if a conviction in another state could be used against you.  A successful challenge to an out-of-state conviction could make a significant difference in a defendant’s case and punishment.

[Source: Tenn. Code Ann. § 55-10-403]

If you are convicted of a Tennessee DUI offense, the conviction cannot be erased from your criminal record. Only a dismissed charge may be expunged. Any conviction in Tennessee remains on a person’s criminal record forever unless a pardon is issued by the governor after a careful review by the Board of Probation and Parole.

Accordingly, if a person pleads guilty to a DUI in Tennessee, that person will not be eligible to have the charge dismissed or expunged.  However, a person charged with a DUI may not need to plead guilty to a DUI.  This is one reason why it is important to have an experienced Tennessee DUI attorney review your case before entering into any plea agreement that results in a criminal conviction.

[Sources: Tenn. Code Ann. § 55-10-403; § 40-35-313; § 40-27-102]

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This self reporting survey reported dramatic differences among age groups.  Younger drivers aged 16 to 25 had a much higher rate of drunk driving than those aged 26 or older (19.5 percent versus 11.8 percent). 

Similarly, people aged 16 to 25 had a much higher rate of driving under the influence of illicit drugs than those aged 26 or older (11.4 percent versus 2.8 percent).

The good news reported in the survey is that there has been a reduction in the rate of drunk and drugged driving in the past few years.  When compared to the survey data from 2002 through 2005, the data gathered from 2006 to 2009 indicate that the average yearly rate of drunk driving has declined from 14.6 percent to 13.2 percent, while the average yearly rate of drugged driving has decreased from 4.8 percent to 4.3 percent.  This National Survey on Drug Use and Health involved responses from more than 423,000 respondents aged 16 or over.

A copy of the entire government report is accessible at: http://oas.samhsa.gov/2k10/205/DruggedDriving.cfm.

For the latest information about the public health risks of alcohol misuse one can go to http://www.stopalcoholabuse.gov/ . This site provides updated information about the risks, such as drunk driving, as well as new and effective prevention strategies and activities. 

In addition, the National Highway Traffic Safety Administration has a Web site at http://www.stopimpaireddriving.org/ that provides detailed information about the dangers of drunk and drugged driving and what can be done to help combat the problem.

In this case, the officer testified that the defendant swerved his vehicle three times over the yellow center lines of the road. Then the Defendant approached an intersection and turned left without stopping at the stop sign. After being stopped, the Defendant failed all field sobriety tests and was subsequently arrested.

The Tennessee Court of Criminal Appeals ruled that a person does not have to have a blood alcohol content of .08% or any drugs in his or her system in order to be found guilty of DUI.

The Court considered all of the evidence, including the Defendant’s failure to perform field sobriety tests satisfactorily and the police officer’s observation of driving infractions by the Defendant, was sufficient to uphold the conviction.

This case emphasizes the need to be certain a qualified lawyer with sufficient DUI or DWI defense experience and expertise is hired to defend a Driving Under the Influence case even if the blood alcohol level is below the per se (legal) limit of .08%.