Nashville Lawyer Blog

Everyone has probably heard at one time or another that you should always refuse to give a breath test if you have been drinking alcohol. I don't give the same advice. I simply telll my friends and family not to get behind the wheel of a car if they aren't immediately prepared to get pulled over and take a breath test because if you aren't prepared to take that test when you get in your car and you do get pulled over and the officer suspects you of drinking alcohol then you are going to go to jail after being charged with DUI and you are going to lose your license for refusing to give that breath test. Having refused the breath test may help the defensibilty of their DUI charges if they really were drunk, but does anyone really want to be charged with DUI and have a better case to defend?

A recent client of mine is probably glad he attempted to give a breath sample. I represented a client at a jury trial last week where my client was arrested for DUI and the police officer requested that he submit to a breathalyzer test. The client agreed and attempted to blow into the breathalyzer as requested. The machine registered insufficient samples after each of his three attempts. The State of Tennessee ultimately charged the client with violation of the implied consent law as the State argued that my client's attempts were insincere. The officer never requested that my client submit to a blood test.

The case was tried before a jury and the jury ulitimately found my client not guilty of DUI. The state failed to preserve a copy of the booking room video that would have shown my client's breathalyzer attempts. I strongly believe that my client's testimony that he tried to give a breath sample saved him from being convicted of DUI and the jury was probably not pleased that the officer didn't preserve the video. While we will never know what the results would have been, I can only assume that the jury was not satisfied that the State had proven their case given the fact that they could have requested a blood sample and my client testified that he tried to give the breath test as best he could.

If you are charged in Nashville or anywhere in Middle Tennessee with a DUI, contact a criminal defense attorney that has experience handling DUI cases. You may contact Vince Wyatt at 615.256.6666 or by email at vwyatt@hwylaw.com

Much like an expired license plate or a broken taillight, tinted windows can be used by police officers in Tennessee to make a vehicle stop. Tenn. Code Ann. § 55-9-107 prohibits driving a car that has windows that have been altered with a material that has a visible light transmittance of less than 35% or reduces visible light transmittance in the windshield below 70%. The law also requires installers of window tints to affix a compliance sticker and provide a signed receipt to the owner.

The window requirements only apply to vehicles registered in Tennessee; cars registered in other states must meet the requirements of the state of registration, which may be greater or less than Tennessee's.

Unfortunately for drivers, a police officer may generally be able to stop you if they have a reasonable belief that your windows are too dark, even if they are actually compliant. Much like the implied consent law for DUIs, it is a Class C misdemeanor to refuse to let the officer do a field comparison test of the window. Moreover, the owner has the burden of proof that the windows are legal.

If you have been stopped for a tinted window violation and subsequently arrested for a more serious offence, challenging the initial stop may be the only way to have the other evidence suppressed. For example, one federal court found that a "brief observation" of windows by a police officer was insufficient to establish probable cause to stop a vehicle and threw out the rest of the case. United States v. Page, 154 F.Supp.2d 1316, 1320 (M.D. Tenn. 2001).

Although there may not be much that drivers with tinted windows can do to avoid being stopped, having documentation of compliance handy may speed the process along and reduce the chances for the police to find additional reasons to question you. If your windows were not tinted in Tennessee or you do not have the compliance sticker and receipt, some window tinting companies will evaluate the amount of tint on your car and provide documentation of their findings.

If you are facing criminal charges stemming from a tinted window violation, you should contact a criminal attorney to assist you. Our office has experience handling these types of cases in Nashville, TN. You may contact Vince Wyatt, David Raybin, or Ben Raybin or call us directly at (615) 256-6666.

In researching a Tennessee law related to a client's recent DUI stop, I came across the Tennessee Court of Criminal Appeals 2000 decision in State v. Gonzalez. In such case, a Franklin, Tennessee (Williamson County) police officer initiated a traffic stop of a vehicle after it failed to use its turn signal.

The court reviewed Tennessee law and particulary the code sections related to turning movements (T.C.A. 55-8-142) and signals for turns (T.C.A. 55-8-143) and concluded that a turn signal is only required when another vehicle may be affected by the turn. In the Gonzalez case, the testimony was that there was no traffic directly around the turning vehicle. The officer also admitted that he was not affected by the turn. Since the turn did not affect others, the court concluded that a traffic violation did not occur and thus found the stop was unjustified. By invalidating the stop, the court reversed the defendant's conviction for simple possession of cocaine.

If you are involved in a criminal case and have reason to believe that the stop of your vehicle was unjustified, you should contact a criminal attorney. You may wish to contact Vince Wyatt, David Raybin or Ben Raybin at 615-256-6666.

David and Ben Raybin authored an article that was recently published in the Tennessee Bar Journal on this topic. Such article highlights the many concerns that attorneys should have about their client having a facebook, my space, twitter, etc. account. Individuals tend to post significant personal information on their social media accounts, which can be accessed by investigators, prosecutors, opposing attorneys, and the other party, etc.

To read the full Tennessee Bar Journal Article Click HERE

As I predicted in my last blog entry, the new law designed to prevent those charged with repeat offense DUIs from receiving an immediate bail was challenged and found to be unconstitutional. Judge Mark Fishburn ruled that the new law violated the Tennessee Constitution as the Constitution requires that bail be set except for those facing capital offenses. The following link is the WSMV News Story

With the exception of those facing lethal injection, persons in jail on a DUI charge in Tennessee that have a prior conviction for DUI, Vehicular Assault, or Vehicular Homicide are finding that the new DUI laws that came into effect on January 1, 2011 make it harder for them to get out on bond than any other class of defendants.

While the Tennessee Constitution provides in Article 1, Section 15 "that all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great," Tennessee Code Annotated 40-11-118 was amended to provide:

If the defendant has one (1) or more prior convictions for § 39-13-106, § 39-13-213(a)(2) or § 55-10-401, the defendant shall not be released unless the court first determines the defendant is not a danger to the community. The court may consider the use of monitoring devices to eliminate danger to the community including, but not limited to:
(1) Ignition interlock devices;
(2) Transdermal monitoring devices or other alternative alcohol monitoring devices;
(3) Electronic monitoring with random alcohol or drug testing; or
(4) Pretrial residency in an in-patient alcohol or drug rehabilitation center.

There are sure to be challenges to this law down the road, but for now those with prior DUIs definitely need to contact an attorney to help them get out on bond as soon as possible. If your friend or family members needs an immediate assistance, don't hesitate to contact Vince Wyatt or David Raybin at (615) 256-6666 or vwyatt@hwylaw.com or draybin@hwylaw.com

The Tennesee Legislature made several changes to the Tennessee DUI law this past legislative session that went into effect for DUI violations after June 23, 2010. One of such changes amended the law to actually allow DUI offenders the ability to drive more. Under the previous law, once convicted of DUI, one could basically only drive to and from work and to and from full-time school. An amendment to the law for those convicted after June 23, 2010, allows a judge to permit those convicted of DUI for the first time the option of installing an interlock device that measures breath alcohol, at their own expense, so that such person can operate a vehicle without geographic restrictions. While the cost of installing and maintaing an interlock device is not cheap such change in the law is very important to many people charged with DUI that cannot operate under the old restrictions. Those with children were legally unable to get their child to a doctor visit, athletic events, school, etc. and such amendment accomodates those individuals and many others.

If you are charged with a DUI or are in need of legal advice, don't hesitate to contact Vince Wyatt or David Raybin at 615.256.6666.

The Tennesee Legislature made several changes to the Tennessee DUI law this past legislative session that went into effect for DUI violations after June 23, 2010. One of such changes amended the law to require first time DUI offenders to install ignition interlock devices if any of the following apply:
1. The defendant's blood alchohol content is .15 or higher
2. The defendant is accompanied by a person under 18 years old
3. A traffic accident for which notice to law enforcement is required under T.C.A 55-10-107
4. The person is in violation of the implied consent law and has a prior conviction or juvenile adjudication for implied consent, driving while impaired under 21, open container law, or reckless driving where DUI was the original charged offense.

The Tennesee Legislature made several changes to the DUI law this past legislative session that went into effect for DUI violations after June 23, 2010. One of such changes amended the law regarding the look back period for past offenses. The old law calculated prior offenses under the DUI law for enhancement purposes by looking back 10 years from the previous conviction to the new conviction. For example, a person with one prior DUI on April 1, 2000 would face the minimums of a second offense if convicted on a second DUI before April 1, 2010.

Under the new law, the 10 years for enhancement purposes is calculated from violation to violation. I imagine such change was made to prevent criminal defense lawyers from continuing their clients cases so as to avoid the enhanced penalites.

Such enhanced penalites are significant. For example, in Tennessee while a first offender may face a minimum senetnce of 48 hours in jail, a second offender faces a minimum 45 days in jail. A second offense also requires a larger fine and longer loss of driving privileges.

Tennessee Code Annotated 55-10-416 makes it absolutely illegal for the driver of an automobile to possess an open container of alcohol. The law does not forbid a passenger from possessing alcohol or other persons not in an automobile from possessing an open container. However, despite the fact that Tennessee law limits open container violations to drivers of automobiles, local city laws do in many cases prohibit passengers and other persons in public from possessing an open container of alcohol.

In Nashville, Local Oridinance: 7.24.040 named: Alcoholic beverages in open containers states:
A. It shall be a violation for any person, while in or on a street, alley, sidewalk, parking lot, parking garage or other area generally open to the public, except (1) enclosed structures, (2) premises owned by scientific, religious or educational institutions, or (3) premises specifically permitted or licensed for the on-premises consumption of alcoholic beverages or beer; to have in their possession beer, ale, wine or other alcoholic beverage for the purpose of consumption in a glass, aluminum, or metal container unless such container is commercially sealed.
B. Possession of beer, ale, wine or other alcoholic beverage in an open container not permitted in subsection A hereof shall be prima facie evidence of having said beverage for the purpose of consumption.

A close reading of such ordinance reveals that the law allows for one to possess alcohol in a plastic container. So don't forget to grab some plastic cups for your next Titans tailgate.

Under Tennessee law, a prior DUI conviction raises the standard minimum sentence of 48 hours in jail to 45 days in jail on a new DUI charge. Two prior convictions means a DUI defendant is facing a minimum sentence to 120 days and the minimum sentence increases with subsequent convictions.

The Tennessee Court of Criminal Appeals in Tennessee v. Albright, recently held that a prior conviction in which the judgment did not contain the trial judge's signature was not adequate to establish a prior conviction, finding such judgment to be void, and thus ordered that the defendant's sentence be reduced.

Tennessee Court of Criminal Appeals Opinion

A criminal defendant should contact an attorney experienced in DUI law that is aware of all possible defenses to their case.

Nashville Metro Davidson County police officers are patrolling each night looking for persons that may be driving under the influence of alcohol. Here are the top ways to avoid getting a DUI.

1. Do NOT get into your vehicle if you are not immediately prepared to take a breathalyzer test. This one seems obvious, but far too many people go to a bar or restaurant with the plan to have one or two beers and end up having four or five beers or more. Public transportation is not an option for most in Nashville so many after five beers think they are fine to drive, but if they really considered that moments after getting into their car that they could be forced to submit to a breathalyzer and/or get arrested for DUI, chances are they would think differently. The best approach is obviously to always have a designated driver or use a taxi, but the discipline not to drink more than one or two drinks is sometimes the only reasonable choice.

2. Don't give the Police a reason to pull you over. Even if you have only truly had a couple of beers, no one wants to be pulled over in the early morning hours and be questioned by a police officer. While Tennessee law says that no one should be required to submit to a breathalyzer unless the police officer has reasonable suspicion that such individual is under the influence of drugs or alcohol, chances are that if you are honest with the police officer that you have had a couple of beers, then the police officer is going to assume that you have underestimated the amount of alcohol that you have actually had (since many drivers do this) and you will find yourself being requested to perform field sobriety tests and the slightest misstep or failure to follow instructions is what the police officer is likely to use as a basis to require a breathalyzer test. One good way to avoid getting caught up in this, is by not violating any traffic laws. Police officers cannot just pull you over because you leave a bar at 2:00 a.m. They have to have a valid reason for pulling you over. In Nashville, it is common for police officers to patrol West End Avenue, 17th Avenue, 21st Avenue, Wedgewood Avenue, etc. in the early morning hours looking for persons having trouble driving under the 30 mph posted speed limit when there is very little traffic on the road. While speeding is not an indication of driving under the influence, it gives the officers a valid reason to pull you over. Other common reasons an officer might pull you over: driving on expired tags, driving without your lights on or with a headlight or taillight out, weaving, running a stop sign or red light, etc.

Continue reading "What Nashville (Davidson County Tennessee) Police Officers don't want you to know about avoiding a DUI" »

As Nashville celebrates the holiday season, the DUI Task Force rolls out over 50 checkpoints to tag drivers for DUI. From December 18 through January 3, law enforcement will sponsor increased numbers of checkpoints across the Middle Tennessee. Tennessee traffic statistics have argued that increasing checkpoints increases driver safety and helps get Nashville DUI drivers off the road.

With the increase of Nashville DUI checkpoints comes an increase of mistakes.

D.U.I. charges were dropped in twenty cases involving Chicago Police Officer Richard Fiorito. Fiorito is accused of making false DUI arrests. The dash cam videos from Fiorito's squad car were released Monday. Fiorito wrote in his police report that one arrested person staggered and could not do the walk-and-turn test.

However, the man's attorney disputed Fiorito's characterization after reviewing the video tape. "They're not pass-fail tests, but I would say he's passing," said April Preyar, a DUI defense attorney. The man's DUI charge was dismissed last week. More than 20 other DUI cases have also been dropped in recent weeks.

Nashville has not witnessed mass dismissal of D.U.I. charges yet. However, cases have been dismissed where the video tapes did not support the arresting officers justification for the initial stop. A judge found that the officer did not have justification to stop former Titans quarterback, Steve McNair, before his arrest for D.U.I.