DUI Lawyer in Cookeville, Tennessee

If you’ve been charged with driving under the influence, you need an attorney that is knowledgeable about the law, the field sobriety tests, and the local judges and district attorneys.

DUI Law

T.C.A. § 55-10-401 forbids driving a motor vehicle under the influence of any drug or intoxicant or with a blood alcohol content (BAC) of 0.08% or more.  If the vehicle is a commercial motor vehicle, the statute forbids driving with a BAC of 0.04% or more.

A person found guilty of violating T.C.A. § 55-10-401 first offense can be sentenced to up to eleven (11) months and twenty-nine (29) days in the county jail.  T.C.A. § 55-10-402.  Also, the person must serve at least 48 hours in jail.  If the person’s BAC is 0.20% or more, the person must serve at least seven (7) days in jail.

Further, the minimum jail times increase with each DUI offense.  Second offense DUI requires a minimum of 45 days in jail.  Third offense DUI requires a minimum 120 days in jail.  Fourth and fifth offense DUI requires 150 days minimum in jail, and the offense is now a felony.  The sixth or subsequent DUI conviction is a C Felony.

The fines also go up with each offense.  T.C.A. § 55-10-403.  A person convicted of first offense DUI is subject to a $350 to $1,500 fine.  Second offense DUI has a $600 to $3,500 fine.  Third offense DUI has a $1,100 to $10,000 fine.  The fourth or subsequent offense DUI has a $15,000 fine.  Also, there is an additional fine if a child is in the car (and likely problems with the Department of Children’s Services, but that’s for another blog).

Also, a person convicted of DUI will lose his license for one year for a first offense, two years for a second offense, six years for a third offense, and eight years for a fourth or subsequent offense.  T.C.A. § 55-10-404.

Field Sobriety Tests

The field sobriety tests are often critical in DUI cases, particularly when there are no blood test results.  Therefore, it is important that your lawyer is knowledgeable about these tests.  Police officers use a number of non-standard and standard tests.  Non-standard tests do not have the same reliability as the standard tests, and yet, many police departments continue to use them.  These nonstandard tests include:

The Finger to Nose Test

In this test, the officer asks the subject to close his eyes and touch the tip of his nose, first with one hand and then with the other hand.  The officer checks to see if the subject touches the tip of his nose and whether the subject sways, opens his eyes, or fails to keep his head tilted back.

The Finger Count Test

The finger count test requires the subject to touch each of his fingers to his thumb while counting.  The officer looks for (1) slurring of numbers, (2) incorrect order of numbers, (3) incorrect matching of numbers with finger to thumb movement, and (4) failure to touch finger to thumb.

The Hand Pat

The subject of a hand pat test has to alternate between patting the top and bottom of his hand while counting.  The officer may ask the subject to speed up or slow down.  DUI clues include (1) failure to turn the hand back and forth, (2) sliding or flopping the hand, (3) hesitating, (4) failing to count properly, and (5) failing to accelerate.

Coin Pickup

In the coin pickup test, the officer drops coins on the ground and asks the subject to pick them up.  While the subject is picking up the coins, the officer is looking for (1) balance, (2) hand/eye coordination, and (3) dexterity.

The Alphabet Test

The alphabet test requires the subject to recite the alphabet from A to Z, sometimes backwards.  The officer looks for (1) pauses, (2) missing and skipped letter(s), and (3) a slow pace.

Reverse Counting

In this test, the officer has the subject to count backwards, up to 25 numbers.  The officer looks for (1) failure to start or end on the designated numbers, (2) repetition of a particular number, and (3) poor pronunciation.

Writing/Drawing/Tracing Tests

In these tests, the officer has the subject write his name, draw shapes, and/or trace a shape.  The officer looks for accuracy and neatness.

The Romberg Test

The subject of the romberg test is required to stand with feet together, eyes open and hands by the side (and sometimes have his head titled back).  Then, the subject closes his eyes and the officer observes for up to a minute.  The officer looks for swaying, asking for additional instructions, opening eyes, and failing to keep the heals together or head tilted back.

In addition to the above nonstandard tests, there are a number of standard tests.  These include:

One-leg Stand Test

In this test, the subject has to balance on one leg and count for thirty seconds.  The officer looks for (1) swaying, (2) using arms for balance, (3) hopping, and (4) putting a leg down too soon.

Walk and Turn Test

The walk and turn test requires the subject to take nine steps heel-to-toe down a straight line, turn, and return in nine-steps.  The officer looks for the following clues: (1) cannot maintain balance, (2) starts too soon, (3) stops while walking, (4) fails to touch heel-to-toe, (5) steps off the line, (6) uses arms to balance, (7) turns improperly, and (8) takes an incorrect number of steps.

Horizontal Gaze Nystagmus Test

This test requires the subject to follow a slowly moving object, such as a pen, horizontally with his eyes.  The officer looks for (1) lack of smooth pursuit in either eye, (2) sustained nystagmus (uncontrolled movement) in either eye, and (3) nystagmus prior to 45 degrees in either eye.

Local Practice

As seen above, a DUI conviction can lead to the loss of your license for one year or more.  However, often people who lose their license can apply to the judge for a restricted license.  Some judges require you to pay all of your fines and court costs before approving your restricted license.  Other judges allow you to make payments to get your restricted license.  It’s also important to know what the local district attorney want.  In some counties, the assistant district attorneys will let you plea to the 48-hour mandatory minimum jail sentence with 11/29 probation.  In other counties, the assistant district attorneys will want more jail time.  That’s why it is critical not only to know the law and the tests but also the local practice.

If you’ve been charged with a DUI in Cookeville or in a surrounding town, reach out to a local DUI attorney today.

DUI Blood Results Suppressed Because Blood Drawn in the Wrong County

Like the Utah nurse in the news for refusing to draw blood from an unconscious patient, Lewis County has a nurse willing to protect the rights of his patients.

In the case, the arresting officer obtained a search warrant to draw the defendant’s blood in Lewis County, Tennessee.  Specifically, the warrant commanded the officer to “take custody of the suspect and transport the suspect to a person qualified to draw blood in Lewis County.”  Further, the jurisdiction of the magistrate that signed the warrant was limited to Lewis County.  See Tenn. R. Crim. P. 41(a) (“A magistrate with jurisdiction in the county where the property is located may issue a search warrant authorized by this rule.”).  Given the above, the trial court concluded (and the appellate court agreed) that the search was limited to Lewis County.

However, after a Lewis County nurse refused to take the defendant’s blood, the officer had the defendant’s blood drawn in Perry County, Tennessee, by a nurse that was not qualified to draw blood in Lewis County.  Thus, the search was unconstitutional.

Despite the officer’s actions, the State tried to save the search through (1) exigent circumstances and (2) the good faith exception.  First, the State argued that a “recalcitrant nurse” created the exigent circumstances, i.e., the loss of alcohol in the blood.  The Tennessee Court of Criminal Appeals, however, strongly rejected the State’s contention that the nurse was recalcitrant:

We disagree with the State’s characterization of Mr. Lineberry as “recalcitrant.” While Tennessee Code Annotated section 55-10-406 lists those who are authorized to draw the blood of someone accused of a drunken driving related offense, neither this statute nor any other Tennessee statute compels medical personnel to forcibly draw a suspect’s blood whenever requested by an officer to do so. It has been recognized that multiple ethical and safety concerns arise from a forcible blood draw by medical personnel. See, e.g. Jacob M. Appel, Nonconsensual Blood Draws and Dual Loyalty: When Bodily Integrity Conflicts with the Public Health, 17 J. Health Care L. & Pol’y 129, 149-54 (2014); E. John Wherry, Jr., DWI Blood Alcohol Testing: Responding to a Proposal Compelling Medical Personnel to Withdraw Blood, 18 Seton Hall Legis. J. 655, 657, 670-71 (1994). Moveover, medical personnel should not be threatened, coerced, or intimidated into delay treating a sick or injured patient in order to forcibly draw the blood from a suspected drunk driver, who is uninjured and was not involved in an accident, for the sole purpose of assisting the officer in securing evidence. Given the safety and ethical concerns and the primary purpose of medical facilities to treat those who are sick and injured, a policy by a medical facility to decline to engage in forcible blood draws is reasonable. Contrary to the State’s characterization of Mr. Lineberry as “recalcitrant,” the evidence established that Mr. Lineberry was simply doing his job and complying with the medical facility’s policy.

Moreover, the court noted that the officer did not (1) contact the Lewis County medical facility before arriving or (2) attempt to locate anyone else in Lewis County qualified to draw blood.  Finally, it was not clear whether the defendant had reached the level of “complete absorption.”  If he had not reached the level of complete absorption, his BAC would have been increasing instead of decreasing.  Based on the foregoing, the appellate court rejected the State’s exigent circumstances argument.

The State then argued that the good faith exception applied.  However, the good faith exception does not apply to violations of the United States and Tennessee Constitutions.  Since the officer violated the defendant’s constitutional rights, the Tennessee Court of Criminal Appeals affirmed the trial court’s suppression of the blood draw.

State v. Nunnery, No. M2016-01932-CCA-R9-CD (Tenn. Crim. App. July 13, 2017).