This new law allows blood to be drawn by a “trained phlebotomist who is operating under a hospital protocol, has completed phlebotomy training through an educational entity providing such training, or has been properly trained by a current or former employer to draw blood.”  The website www.phlebotomycertificationguide.com explains the typical certification process for phlebotomists and provides training course length than ranges from 4 to 24 months.  As discussed in Steve’s previous post, Tennessee law does not specify the amount of training required.  Certainly a very minimal amount of training could qualify one under this new law considering  the fact that the person need only receive training from “a current or former employer.”

The lawyers at Oberman & Rice continue to monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases.  Should you have any questions about a pending Tennessee DUI law or 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.

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.

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]

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.

Tennessee DUI offenses prior to July 1, 2010: Calculate from the date of conviction on the prior offense to the date of conviction on the current TN DUI charge.

Tennessee DUI offenses on or after July 1, 2010: Calculate from the date of the offense of the prior DUI conviction to the date of the offense for the current DUI charge.

These changes can be found in Tennessee Public Chapter Number 1080, which amended Tennessee Code Annotated § 55-10-403(a)(3). The full text of all Tennessee Public Chapters can be found by visiting http://tnsos.org/acts/PublicActs.106th.php?showall.

For more information about this new Tennessee DUI law, you may contact the Oberman & Rice Law Firm, Knoxville, TN DUI lawyers, at 865-249-7200 or visit us at www.tndui.com or www.duiknoxville.com.

Her motivation for doing so is not entirely clear, whether it was a moralistic admission of guilt, unusual behavior provoked by intoxication, or a combination of both.

Reporting one’s own DUI is a surefire way of being charged with the offense and therefore of dealing with it through the court system. Sometimes it is best to pull over in a safe area, take the key out of the ignition and place it outside the vehicle, then call a friend or family member to come get you and/or the car.  Naturally, however, the most responsible option is to avoid driving under the influence altogether.

For more information about the crime of DUI in Tennessee and its consequences, feel free to contact The Oberman Law Firm at (865) 249-7200.

“DWI in a La-Z-Boy”

“Man Charged with Drunk Driving on a Bar Stool”

“Man Arrested For Driving Lawnmower While Drunk”

These may seem like humorous headlines out of Minnesota, Ohio, and Florida, but these cases are no laughing matter.  The chair, bar stool and lawnmower in the above-referenced stories all fall within the legal definition of a motor driven vehicle under Tennessee law. Tennessee DUI laws, in relevant part, prohibit a person from driving or being in physical control of any automobile or other motor driven vehicle while under the influence. See Tennessee Code Annotated § 55-10-401.

Although the Tennessee legislature has not clearly defined “automobile” or “motor driven vehicle,” Tennessee courts have held that the term “automobile” refers to any “self propelled” vehicle.  See State v. Freels, 190 S.W. 454 (Tenn. 1916). Accordingly, any motorized form of transportation, including a car, a lawnmower, a scooter, or even a motorized cooler would fall within the Tennessee DUI statute.

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.

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.