Posts Tagged DUI Chemical Test

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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“No Refusal” Sobriety Checkpoints on New Year’s Eve

On New Year’s Eve, as 2016 draws to a close, Tennessee Highway Patrol troopers will be out in force with multiple sobriety checkpoints throughout the state.

In East Tennessee, “No Refusal” Sobriety Checkpoints are planned in Knox, Loudon, Roane, Campbell, and Sevier County. For the exact locations and a full list of all planned checkpoints throughout the state, click here.

The term “No Refusal” relates to the use of chemical tests (blood, breath, or urine) to measure the concentration of alcohol or drugs in a person’s system. Usually, a person who is arrested for DUI has the right to refuse to consent to a chemical test, although there are exceptions to the right to refuse and there are consequences to refusing. If an arrestee refuses to consent, a law enforcement officer has the option of obtaining a search warrant that requires the arrestee to submit to a chemical test.

During “No Refusal” enforcement periods, like this holiday weekend, the Tennessee Highway Patrol typically has a Tennessee judge (or judges) on call.  If a person is arrested for DUI and refuses to submit to a chemical test, and if the judge determines that the requisite legal grounds exist, the judge will issue a search warrant. This search warrant allows the officer to obtain a chemical test (most often a blood sample), even over the objection or refusal of the motorist placed under arrest.

Anyone arrested for DUI, or another related charge, should immediately contact a Tennessee DUI lawyer familiar with Tennessee DUI laws.  For more information about the crime of driving under the influence (DUI) or about your legal rights with respect to a Tennessee Highway Patrol checkpoint, SteveSara, or AZ are available by calling 865-249-7200.  You may also wish to visit www.tndui.com for more information about the offense of driving under the influence in Tennessee. Even during this busy holiday season, the DUI Defense attorneys at Oberman & Rice are available to speak with you 24/7.

About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants.  Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. (NCDD) and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.  Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the NCDD.

He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 8th edition (Wolters Kluwer/Aspen).  Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions.  He is a popular international speaker, having spoken at legal seminars in 30 states, the District of Columbia and three foreign countries.

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“No Refusal” DUI Enforcement During New Year’s Eve Holiday

The Tennessee Highway Patrol and the Tennessee Department of Safety and Homeland Security have issued a media release dated December 30, 2015 that details plans for an impaired driving enforcement campaign for the upcoming New Year’s holiday period.  According to the release, in 2014, nine people died in 9 crashes on Tennessee roadways during the New Year’s holiday period.  In an effort to increase the safety and decrease the fatalities of motorists on the roads over the 2015-16 New Year’s holiday, the Tennessee Highway Patrol plans to use aggressive “No Refusal” enforcement.

This “No Refusal” enforcement refers to the use of chemical tests (blood, breath, or urine) that determine the concentration of intoxicants in a person’s system.  These tests will be required by troopers after a Tennessee DUI arrest to pinpoint the arrestee’s degree of intoxication.  Generally, Tennessee law enforcement officers will offer an arrestee the ability to refuse to submit to these chemical tests.  However, if an arrestee does refuse to submit to a test, Tennessee law provides that the officer can obtain a search warrant to forcefully obtain the requisite sample.

During “No Refusal” enforcement periods, like this holiday weekend, the Tennessee Highway Patrol typically has a Tennessee judge (or judges) on call.  If an arrestee refuses to submit to a chemical test, and if the judge determines that the requisite legal grounds exist, a search warrant can be obtained that allows the officer to obtain a chemical test (most often a blood sample), even over the objection or refusal of the motorist placed under arrest.

This increased enforcement is set to begin at 12:01 am on Thursday, December 31, 2015 and to end at 11:59 pm on Monday, January 4, 2016.  State Troopers will also perform saturation traffic patrols, sobriety checkpoints, and bar/tavern checks during this holiday period.

More information about the Tennessee Implied Consent Law can be found by visiting our website or in the prior blog post, “Tennessee DUI No Refusal Weekends.” You may also contact our attorneys, SteveSara, and AZ by calling 865-249-7200. Even during this busy holiday season, the attorneys at Oberman & Rice are available to speak with you 24/7.

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Fourth of July “No Refusal” Weekend in Tennessee

The Tennessee Highway Patrol and the Tennessee Department of Safety and Homeland Security have issued a media release dated July 1, 2013 that details plans for an impaired driving enforcement campaign for the upcoming Fourth of July weekend.  According to the release, in 2012, twenty-one people died in 17 crashes on Tennessee roadways during the Fourth of July holiday period.  In an effort to increase the safety and decrease the fatalities of motorists on the roads over the 2012 4th of July holiday, the Tennessee Highway Patrol plans to use aggressive “No Refusal” enforcement.

This “No Refusal” enforcement refers to the use of chemical tests (blood, breath, or urine) that determine the concentration of intoxicants in a person’s system.  These tests will be administered by troopers after a Tennessee DUI arrest to pinpoint the arrestee’s degree of intoxication.  Generally, Tennessee officers will offer an arrestee the ability to refuse to submit to these chemical tests.  However, if an arrestee does refuse to submit to a test, Tennessee law provides that the officer can obtain a search warrant to forcefully obtain the requisite sample.

During “No Refusal” enforcement periods, like this holiday weekend, the Tennessee Highway Patrol typically has a Tennessee judge (or judges) on call.  If an arrestee refuses to submit to a chemical test, and if the judge determines that the requisite legal grounds exist, a search warrant can be obtained that allows the officer to obtain a chemical test (most often a blood sample), even over the objection or refusal of the motorist placed under arrest.  Many of the sobriety checkpoints that are scheduled for this holiday weekend are “no refusal” sobriety checkpoints.

This increased enforcement is set to begin at 6pm on Wednesday, July 3, 2013 and to end at 11:59pm on Sunday, July 7, 2013.

More information about the Tennessee Implied Consent Law can be found by visiting our website or in the prior blog post, “Tennessee DUI No Refusal Weekends.” You may also contact our attorneys, Steve and Sara, by calling 865-249-7200. Even during this busy holiday season, the attorneys at Oberman & Rice are available to speak with you 24/7.

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U.S. Supreme Court Requires Search Warrants for Blood Draws in Many DUI Cases

Tennesseans charged with the crime of Drunk Driving (DUI/DWI) may have a new defense.  On April 17, 2013 the United States Supreme Court ruled, “… in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Instead, the court determined that exigency in this context must be determined on an individual basis dependent on the totality of the circumstances in each case.  See Missouri v. McNeely (Docket No. 11-1425).

So what does this mean for Tennessee DUI defendants?

First, a ruling by the U.S. Supreme Court sets forth the minimum privacy rights guaranteed by our federal Constitution.  Tennessee Courts are required by law to follow the ruling of this decision.

Second, if a person suspected of a DUI in Tennessee decides to invoke his or her right to refuse the arresting officer’s request for a blood sample, it is likely that the officer will need to obtain a search warrant in order to legally proceed to obtain a blood sample over the suspect’s objection.  If a blood sample is obtained without a search warrant even if the suspect refused, and there is no justification of urgency based upon the facts of the case, the blood test results may be inadmissible as evidence against the suspect.

As a result of this Supreme Court decision, some Tennessee law enforcement agencies are now obtaining a search warrant in every instance where a blood test is appropriate.  Should this occur in your DUI case, the Tennessee Statute (T.C.A. or Tennessee Code Annotated) that authorizes refusal of a chemical test (T.C.A. 55-10-406) is trumped by the search warrant and the suspect should cooperate with the officer in order to avoid a physically compelled withdrawal of one’s blood.

The legal analysis to be applied in each case can be complicated.  It is therefore important for someone charged with the offense of DUI to hire a lawyer familiar with this issue.  I am proud to state that in the McNeely opinion, the concurring and dissenting opinion written by Chief Justice Roberts referred to the legal text, Drunk Driving Defense, in a footnote.  As regular readers of this blog know, this text is co-authored by Lawrence Taylor (California DUI attorney) and the managing partner of this law firm.  Should you find yourself in need of a Tennessee attorney, the DUI defense lawyers at Oberman & Rice are ready to assist you.  Our lawyers can also be reached by calling (865) 249-7200.

 

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Knoxville Area Sobriety Checkpoints Begin Tonight

A media release from the Tennessee Highway Patrol dated December 27, 2012 details the agency’s statewide plan for New Year’s Eve DUI enforcement.  In addition to the “no refusal” enforcement discussed in my last post, THP also plans to implement several checkpoints between now and New Year’s Day.  These include not only sobriety checkpoints (DUI roadblocks), but also “no refusal” sobriety checkpoints and driver’s license checkpoints.

Tennessee Highway Patrol regulations generally require that every driver passing through a checkpoint location be stopped and questioned.  Troopers will be investigating for signs of drug and alcohol impairment.  If they suspect that you are under the influence, you may be asked to exit your vehicle and perform certain roadside tasks, often referred to as field sobriety tests.  Information about the dates and locations of the planned DUI checkpoints in the Knoxville area are included below and have been taken from directly from the Tennessee Highway Patrol press release.  Information for additional DUI roadblocks across Tennessee can be downloaded by clicking here.

Should you be arrested for DUI or arrested or cited for another criminal offense or traffic violation, it is important that you consult with a Tennessee attorney as soon as possible.  Our attorneys,  Steve and Sara, will be available to speak with you and can be reached by calling 865-249-7200.

DIST. 1 KNOXVILLE — No Refusal New Year’s Eve Checkpoints

Friday, December 28:

Checkpoint               County                   Road/Highway                             Time of Day

SOBRIETY                    BLOUNT                 O. KNOX HWY @ I-140 RAMP       LATE NIGHT

 Monday, December 31:

Checkpoint             County            Road/Highway                               Time of Day

SOBRIETY *               SEVIER            GOOSE GAP @ SUGAR LOAF RD        LATE NIGHT

DL CHECKPOINT    CAMPBELL      STATE ROUTE 116 @                           LATE MORNING

LITTLE COVE RD

SOBRIETY                  ANDERSON     SR 62 @ KNOX/ANDERSON              LATE NIGHT

CO LINE

SOBRIETY                  LOUDON         US 70 @ CREEKWOOD BLVD             AFTERNOON

Tuesday, January 1:

Checkpoint     County              Road/Highway                                               Time of Day

SOBRIETY*        KNOX                 STATE ROUTE 162 @ STATE ROUTE 62              LATE NIGHT

SOBRIETY*        SEVIER              WINFIELD DUNN PKWY @ DOUGLAS DAM             LATE NIGHT

SOBRIETY*        SEVIER              STATE ROUTE 66 @ STATE ROUTE 139                LATE NIGHT

SOBRIETY*        SEVIER              US 411 @ CHEROKEE CR                                      LATE NIGHT

SOBRIETY*        BLOUNT            I-140 @ STATE ROUTE 33                                   LATE NIGHT

*No Refusal DUI Checkpoint

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Tennessee No Refusal DUI Enforcement

Several Knoxville media outlets are reporting increased Tennessee DUI enforcement for the upcoming holiday.  Please visit the following links for these stories: Troopers will enforce No Refusal campaign over New Year’s Eve holiday or Police step up DUI enforcement during New Year’s.

The increased enforcement is set to begin at 6 p.m. tonight and end at midnight on Tuesday (New Year’s Day).  We frequently receive questions about a person’s rights in relation to a blood or breath test following a Tennessee DUI arrest.  The Tennessee Highway Patrol plan to implement the “no refusal” law during this busy holiday period highlights one of the most common question we field–what does “no refusal” mean?

Often, following a DUI arrest, the Tennessee officer will offer an arrestee the ability to refuse to submit to a chemical test of the officer’s choice (blood, breath or urine).  Tennessee law, however, also provides that even if the arrestee refuses to submit to a chemical test, the office can obtain a search warrant to forcefully obtain the sample.  During these “no refusal” enforcement periods, the Tennessee Highway Patrol typically has a Tennessee judge (or judges) on call.  If the judge determines that the requisite legal grounds (based on the officer’s DUI investigation) exist, a search warrant can be obtained allowing the officer to obtain a chemical test (most often a blood sample), even over the objection (or refusal) of the motorist placed under arrest.

More information about the Tennessee Implied Consent Law can be found by visiting our website or in the prior blog post, “Tennessee DUI No Refusal Weekends.” You may also contact our attorneys, Steve and Sara, by calling 865-249-7200. Even during this busy holiday season, the attorneys at Oberman & Rice are available to speak with you 24/7.

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Tennessee DUI No Refusal Weekends

I am often asked about the “No Refusal Weekends” you may have heard about recently.    Allow me to answer two of the many questions I have received.

First, the Tennessee Implied Consent Law (refusing a blood, breath, or urine test pursuant to T.C.A. § 55-10-406) is not legally suspended for that particular weekend.   It is never suspended.

Second, you have not lost the right in all circumstances to refuse to provide a sample for chemical analysis even if the Tennessee officer believes you are driving or operating a motor vehicle while under the influence of an intoxicant such as alcohol or another drug.

These time periods for increased DUI detection efforts, like the 2012 Knox County, TN July 4th weekend, simply mean that special arrangements have been made to assist officers to apply to a Judge or Magistrate for a search warrant to obtain evidence (such as a sample of blood, breath or urine from a driver suspected of DUI).  If the search warrant is granted, the officer may force the driver to provide a sample of bodily fluid for testing of alcohol or other drugs.   Be aware, however, that there are some circumstances under the law when you do not have the right to refuse the extraction of a blood sample or the administration of a breath test, or both.

If you have been forced to provide a sample of blood or breath as a result of your DUI arrest, all is not lost. Your constitutional rights apply in these circumstances as well. If the chemical sample is obtained in violation of your constitutional rights, the results of your chemical test may not be admissible in court.

For further information on “No Refusal Weekends,” the Implied Consent Law or forced blood draws, you may wish to check out our sister blog, www.duinewsblog.org, you may review additional information on our website, www.tndui.com or you may call Steve Oberman at the Oberman and Rice Law Firm at 865-249-7200.

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Your blood can now be taken by someone not certified to do so.

In his March 7, 2012 post, Steve Oberman posed the question, “Would you want your blood taken by someone not certified to do so?” He was referring to Tennessee Senate Bill 2787/House Bill 2858, which eliminates the requirement that a phlebotomist permitted to draw blood from a Tennessee DUI suspect be certified or nationally registered.  I am sorry to report that this bill passed, becoming Public Chapter No. 0666, and became effective on April 4, 2012.

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.

 

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Would you want your blood taken by someone not certified to do so?

In 2012 Senate Bill 2787, Senator Brian Kelsey, a Republican from Germantown (part of Shelby County), has sponsored a bill allowing a person who is “properly trained,” but not necessarily certified to draw the blood of a person suspected of DUI to determine alcohol and/or drug content. What should concern Tennessee citizens is that this bill removes the requirement found in current law (T.C.A. Section 55-10-410 which deals with drawing blood in driving under the influence/implied consent violation situations) that the person drawing the blood shall be:

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.

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