Commonly Asked Questions Concerning DUI’s
(Click on a question to see the answer.)
1) What constitutes “Driving Under the Influence”?
The State of Tennessee can convict someone of DUI if they prove beyond a reasonable doubt that the person was:
-driving or in physical control of
-any automobile or other motor driven vehicle
-on any public road, highway, street, alley, parking lot, or any other premises frequented by the public at large, while
under the influence of any intoxicant (alcohol or drugs) or with a blood or breath alcohol concentration of .08% or greater
2) For what reasons can a police officer pull someone over in the first place?
Officers must have what is called “probable cause” to pull you over. They cannot pull someone over because they have a gut feeling the person is intoxicated. The most common reasons an officer might pull a person over are traffic violations, such as speeding, swerving, or headlights/taillights out.
3) When I was arrested I was asked to perform some tests. What were those?
Those were Field Sobriety Tests. They are given so an officer can determine whether they believe a person is under the influence. The most common FST’s are:
- Horizontal Gaze Nystagmus Test (pen test)
- Walk and Turn Test (9 steps and back test)
- One Legged Stand Test
4) I think I did fairly well on the tests. Why was I still arrested?
These tests, although they are supposed to be accurate, are very subjective. The determining factor is whether in the “OFFICER’S OPINION” you passed or failed.
5) Since I believe I did well on the tests, will there be a video of my performance on them?
It’s possible. Some officer’s vehicles are equipped with video equipment, and others are not. If there is video capability, and you performed the Field Sobriety Tests in front of the officer’s vehicle, there is a good chance there will be video evidence of your performance.
6) I was also charged with Implied Consent Violation. What does that mean?
An Implied Consent Violation means that, according to the officer, you refused to take a breath or blood alcohol test. If you are found guilty, or plead guilty to a violation of the Implied Consent law, you will lose your license for one year.
7) I was charged with Implied Consent, but I attempted three times to take the test. Why was I still charged?
To make the breath machine work properly a person must blow extremely hard. Some people, for various reasons, simply do not have that type of lung power. It could be due to asthma, smoking, or other lung related complications. Sometimes, when a person is unable to make the breath machine work, the officers think that the person is intentionally trying to make it not work and will charge the person with Implied Consent. This is an issue we can bring up with the District Attorney.
8) What is the level at which they assume I am intoxicated?
The level at which the State assumes you are intoxicated is .08%. However, an officer can arrest you for DUI even if you blow under the limit, if, in their opinion, they believe you are under the influence and cannot safely operate a vehicle.
9) I blew over .08%. Is there any hope for my case?
Yes. Just because you’ve been charged with DUI doesn’t mean that you will get a DUI. If it is determined that the officer lacked probable cause to pull you over in the first place, we can file to have the case dismissed. Even if you blew over, and the officer DID have probable cause, we can still seek to have your case reduced to lesser charge. We can also seek to have the results of a breath or blood test thrown out if they were not conducted properly.
10) The officer never ask me to take a breath test, only a blood test. Why is that?
It is in the officer's discretion to offer you a breath test or blood test, or both. Sometimes an officer will ask for a blood test if they believe a person is under the influence of drugs rather than alcohol alone, since the breath test only tests for alcohol.
11) Are the results of a blood test or breath test always accurate?
No. Blood tests are generally believed to be more accurate that a breath test, but there can be problems with both which may render the results inaccurate. Officers are taught very specific ways to administer both tests, and if they administer then incorrectly, the results are likely flawed. We can seek to have the results thrown out if the officer administered the tests in an incorrect manner.
12) What are the typical outcomes in DUI cases?
If you are charged with a DUI, most likely one of four things is going to happen:
- 1. The case is dismissed because the officer lacked probable cause to make the initial stop, or there is another legal issue involved that makes further prosecution of the case impossible for the DA.
- 2. It is reduced to what is called a Reckless Driving.
- 3. It is reduced to a Reckless Endangerment.
- 4. You get a DUI.
13) Are many cases outright dismissed?
Unfortunately, only a very small percentage of cases are dismissed because of legal problems with the case. Most cases are fairly straightforward. For example, a person is pulled over for a traffic violation, the officer smells alcohol and/or drugs and notices “signs of intoxication,” like red and watery eyes and slurred speech. The person shows indicators of impairment on the FST’s, and the person either does or does not do a breath or blood alcohol test. In a case such as this, it is extremely difficult to seek a dismissal. However, the case could still be significantly reduced.
14) What are the penalties if I get a DUI?
The minimum penalties on a first DUI are:
11 months, 29 days supervised probation
$350.00 fine + court costs
48 hours in jail
24 hours of Public Service Work
Alcohol Safety Class
Loss of License for 1 year
15) What are the penalties if my case is reduced to a Reckless Driving?
The penalties for Reckless Driving vary, but typically are:
- 6 months supervised probation
- $250.00 or $350.00 fine (depends on DA) + court costs
- Alcohol Safety Class
Sometimes jail time is a condition, but this is negotiable. With a DUI conviction, jail time is mandatory.
In addition, you get to keep your license. (Assuming you were not also charged with Implied Consent)
16) What are the penalties for a Reckless Endangerment?
Reckless Endangerment is not considered as serious as a DUI, but it is more serious than Reckless Driving. Generally the penalties for Reckless Endangerments are exactly the same as a DUI but you keep your license. (again this is assuming you were not also charged with Implied Consent). The benefit of getting a Reckless Endangerment is that you will not have a DUI on your criminal record.
17) So what is best to worst case scenario outcomes?
Best Case Scenario: Case dismissed for legal problem with the case such as, a stop without probable cause
Next Best Case Scenario: Case reduced to Reckless Driving
Next Best Case Scenario: Case reduced to Reckless Endangerment
Worse case scenario: Convicted of DUI
18) Assuming my case is not outright dismissed, what are some of the main criteria prosecutors typically look at in determining whether to reduce a case or not?
- 1. Was there a wreck?
- 2. If there was a wreck, was another car involved, or was it a single car accident, and was anyone injured?
- 3. If there was no wreck, why was the person pulled over? Was the person driving like they were intoxicated, or were they simply pulled over for a routine traffic violation?
- 4. How poorly or how well did the person do on the field sobriety tests?
- 5. Was there a blood test or breath test given, and if so, what were the results?
- 6. Was the person cooperative with the officer?
- 7. Is this a first offense?
- 8. Does the person have a lengthy criminal history?
19) If I want to fight my DUI, what are my chances of success?
It depends. Every case is different, but we can discuss the likelihood of success at trial in your particular case. If you decide to fight your case, we will zealously represent you utilizing all available resources to maximize the chances of winning.
20) I have had more than one DUI. What are the penalties for subsequent DUI’s?
Minimum penalties for DUI 2nd are:
- 1. 11 months, 29 days supervised probation
- 2. 45 days in jail
- 3. $600.00 fine + court costs
- 4, Alcohol treatment/classes
- 5. 2 year loss of license
Minimum penalties for DUI 3rd are:
- 1. 11 months, 29 days supervised probation
- 2. 120 days in jail
- 3. $1100 fine + court costs
- 4. Alcohol treatment/classes
- 5. 3 year loss of license
Minimum penalties for DUI 4th’s or more are:
- 1. (Becomes a felony) 1-2 years probation
- 2. 150 days in jail
- 3. $3000 fine + court costs
- 4. Alcohol treatment/classes
- 5. 5 year loss of license
21) What is the time limit for prior DUI convictions?
The state can use a prior DUI conviction to increase the penalties as long as the conviction is within the last ten years. They can also go back ten years from then for other DUI convictions to increase the penalties further. For example, if you received a DUI conviction in 2001, then another DUI conviction now would make the new DUI a second offense. If you had a DUI conviction from 1995, not only can they go back ten years to make it a second offense, they can go back ten years from the 2001 conviction and make a current DUI conviction a DUI 3rd offense.
22) How does the process work?
- 1. The first court date is at 8:30 A.M., 10:30 A.M., or 1:00 P.M. in the afternoon. This is a settlement date in General Sessions Court. This date is set to see if your attorney and the DA assigned to your case for that day can find a solution to your case without having to go further. Ideally you will be made an offer that you like, and the case will be over that day.
- 2. If you do not receive an offer you like, or you want to fight your case all the way, then the case is set at a later date for what is called a Preliminary Hearing date. This is usually a 9:00 A.M. court date. You have another opportunity at this court date, like the first one, to seek a satisfying settlement of your case.
***The vast majority of cases are worked out in General Sessions Court on the first or second court date. Occasionally they are not, and you then proceed to the next level, which is Circuit Criminal Court. You proceed to Criminal Court by having a Preliminary Hearing on your second court date. At this hearing the judge listens to the officer’s testimony about what happened, and I have an opportunity to question the officer. If the judge decides there is at least enough evidence for you to be charged with the DUI, then your case is sent to Criminal Court***
23) How long does a DUI stay on my record?
The Tennessee legislature has set it up so that a DUI can never be expunged. Unfortunately, if you are convicted of a DUI, it will remain on your record indefinitely.
24) Will a DUI or Reckless Driving conviction affect my insurance rates?
It varies, depending on your insurance company, but it is highly likely that a driving related conviction will affect your rates.
25) If I am convicted of a DUI or Implied Consent Violation and lose my license for a year, can I still get a hardship license?
On first offenses you are eligible to get what is called a Hardship or Restricted License. This license allows you to drive to, from, and within work. You may also drive to school, church, or other religious institutions.
26) This is a lot of information. Can you give me the bottom line on my options now that I’ve been charged with this DUI?
When a person is charged with a DUI and/or other crimes you have two broad options:
- 1. Decide (after discussing it with an attorney) whether you should fight your case all the way. This means that no matter what the DA offers, you will not take it. If you choose this route, ultimately you will have to go to trial in Circuit Criminal Court. The obvious benefit of fighting your case all the way is that you may ultimately beat your case completely. Your attorney can discuss with you the likelihood of success in your particular case. The downside to fighting a case all the way is that to do so is very time consuming, very expensive, and you run the risk that you still get a DUI. Cases that are set for trial are often heard 1-2 years later (and sometimes longer). The court costs often triple as well, and you’d have to be prepared for numerous court dates during that period. So, think it through, and discuss it with your attorney. They can help you assess whether your case is one that is worth fighting.
- 2. The second option is to try to get your case reduced to either a Reckless Driving or Reckless Endangerment. The obvious benefit is that this route is far less expensive and far less time consuming. (95% or more of people charged with DUI’s choose this route)
27) There are so many attorneys to choose from how do I decide who to choose?
Here are some factors that are important about the lawyer you choose:
- 1. Make sure that the lawyer you choose focuses their practice on criminal and DUI defense. You don’t want a “jack-of-all trades” to represent you. A good way to determine that is by asking them what types of law they practice. You can also check out their websites, and usually they will indicate what types of law they practice.
- 2. Look for a competent and experienced attorney. Only through time and experience does an attorney develop the knowledge and relationships necessary to best represent their clients. A good rule of thumb is to make sure your lawyer has practiced a minimum of 10 years.
- 3. Don’t assume that the more expensive the lawyer, the better the representation. You can get great representation at a fair and reasonable price.
- 4. Ideally, you want an attorney with experience as a prosecutor. Former prosecutors are able to analyze your case from both sides better than those without that experience.
- 5. Make sure they are competent. If you hear something from an attorney that is different from what every other attorney is telling you, there’s likely a problem.
- 6. Ultimately, you should be comfortable with the lawyer you choose. Talk to several and see who is the best “fit” for you.
Commonly Asked Questions About Defense Cases
(Click on a question to see the answer.)
1) What is the different between a felony and misdemeanor
A felony is more serious than a misdemeanor. A felony can put you in prison or jail for more than a year depending on the class of crime it is. It’s not guaranteed to, but it is possible.
2) What types of crimes are considered misdemeanors
DUI’s (except 4th or more offenses), Assaults, Domestic Assaults, Simple Possession of Drugs, Paraphernalia, Harassment, Thefts under $500, etc. Generally misdemeanors are the “less serious” crimes. This doesn’t mean that a person charged with a misdemeanor is guaranteed to stay out of jail. Some misdemeanors have mandatory jail sentences.
3) What types of crimes are considered felonies
Thefts over $500, Aggravated Assault, Drug Possession for Resale, Robbery, Burglary, Homicide, etc. These crimes are more serious than misdemeanors and often the penalties are far more severe.
4) What are the consequences of a misdemeanor
Up to 11 months and 29 days in jail, up to $2500 fine, Public Service Work, Classes (Drug classes, Domestic Assault classes, etc.)
5) What are the consequences of a felony
A minimum of 1 year and the fines vary depending on the crime. Other conditions may be added as well.
6) If I am convicted of a crime, will I automatically have to do jail time?
No. There are some felonies where probation is not an option, but for most crimes, including felonies, there are options other than jail or prison time. A person may get Probation, Intensive Probation, Community Corrections, or a treatment program. We can discuss the different options specific to your case.
7) Can I represent myself?
Yes, but you should not. Remember, the State has an attorney whose job it is to get the best conviction possible against you. You need an attorney fighting for you. I have seen too many cases where people have decided to represent themselves turn out dreadfully wrong. Whether it’s me or someone else, please do yourself a favor a get an attorney to defend you.
8) How does the process work?
With a few exceptions, most cases start out in General Sessions Court. If you are on bond you will be given a 8:30 A.M., 10:30 A.M., or 1:00 P.M. court date, usually a month or so after your arrest. On or before that first court date I will negotiate with the District Attorney assigned to your case. If we are able to come to a good resolution of the matter the case will be over on that first court date. If not, we will move your case to a second date, called a preliminary hearing date. On this date we have an opportunity to come to a resolution. If we are still unable to resolve the case we will have a hearing and send the case to Circuit Criminal Court where we start the process over. Ultimately, if the case remains unresolved, we will go to trial. As a practical matter, 95% of cases a re resolved before trial. If we need to, however, I have extensive experience in trial.
9) I would like to know what the possibilities are for my specific crime.
Because there are so many different crimes and associated penalties, we would need to meet or talk about the specifics of your case. Feel free to call me or email to discuss your case and/or set up a meeting.