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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Tennessee Legislature Addresses “Self Driving” Cars

If you have watched the news lately, you have probably heard of the automobile giant called Tesla. Tesla is famous for its work toward developing automated cars that operate without the need for a human driver. As one could imagine, vehicles driven without a person in total control behind the wheel could be potentially dangerous—there is always a risk of some sort of malfunction with the automated system or the driver being unresponsive to the warning messages from the automated system. One such example of this issue has already arisen in Ohio. In fact, even Tesla itself released a video warning of the potential dangers of the self-driven vehicles. States have started to take notice of these self-driving vehicles and some States have even started passing laws aimed at these types of automobiles.

For example, a new law that took affect in Tennessee on July 6, 2017, sets out requirements for operating an “Automated Driving System” or “ADS”. The “Automated Vehicles Act” as created by the Tennessee Legislature in Public Chapter No. 474 sets forth certain requirements in order for such ADS enabled vehicles to lawfully operate on Tennessee roads. This statute aims to lay out restrictions on ADS vehicles as well as determine liabilities for the ADS operated vehicles.

Interestingly, if the requirements for an ADS set forth by the statute are not followed, it is a Class A Misdemeanor for a person to knowingly operate the vehicle without a human driver in the driver’s seat, punishable up to 11 month and 29 days in jail. As more options become available for ADS vehicles, those who are interested in utilizing the technology must be vigilant to ensure their vehicles comply with the statutory requirements.

Anyone charged with a traffic offense or 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 traffic offenses, 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. The DUI Defense attorneys at Oberman & Rice are available to speak with you 24/7.

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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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How Do I Reinstate My Tennessee Driving Privileges?

Tennessee residents who have had their driving privileges revoked or suspended because of a Driving Under the Influence conviction (or because of other traffic issues) often want to know the steps required to reinstate their Tennessee driving privileges. There is no “one-size-fits-all” answer, however, because the requirements are unique for each individual and depend on the circumstances of the revocation or suspension.

Fortunately, the State of Tennessee has made it quite easy to answer this question. By visiting the following website and entering certain key information (last name, date of birth, Tennessee driver license/I.D. number, and Social Security Number), Tennessee residents may discover the individual requirements that they need to satisfy before the Department of Safety will reinstate their driver license. This website allows individuals to not only discover the reinstatement requirements if their driving privileges have been revoked, but one may also add an emergency contact to their license, order a duplicate license, document a change of address, or even obtain a driving history.

The Oberman & Rice law firm often deals with issues involving Tennessee driver licenses, often relating to Tennessee DUI offenses or other traffic issues.  Should you have any legal issues regarding your Tennessee driver license, our attorneys, Steve, Sara, and A.Z. are available to speak with you and can be reached by calling (865) 249-7200.

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THP Checkpoints Planned for Labor Day 2016 Weekend

Motorists need to remain vigilant over the next few days. Tennessee Highway Patrol troopers will be out in force this Labor Day weekend.

The 2016 holiday enforcement period begins Friday, Sept. 2, and concludes Monday, Sept. 5. Driver’s license checkpoints are planned in a number of Tennessee Counties. In East Tennessee, on Sept. 2 one is planned in Knox County at SR 33 @ Mt. Olive Church and another in Loudon County at Highway 444 @ Clear Creek Boat Ramp. For a list of all the planned checkpoints, click here.

THP Col. Tracy Trott has stated, “Our high-visibility enforcement effort which includes saturation patrols, bar and tavern checks and sobriety checkpoints, will help remove impaired drivers from Tennessee roadways. Our goal is to remove unsafe motorists from the roadway before they injure or kill themself or an innocent person. Troopers will be out in force working tirelessly across the state to ensure the summer period comes to a safe close.”

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.

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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