Tennessee Court of Appeals upholds revocation of driver’s license despite flaw in implied consent form

In the law, technicalities do not prevail as often as people think.  Normally, courts will find a logical way to arrive at the “right” conclusion.  An example of this is the Tennessee Court of Appeals’ decision in State v. Hembrook, which upheld the Van Buren County Circuit Court’s revocation of a defendant’s driver’s license based on a violation of the implied consent law.  In Hembrook, the defendant was arrested and charged with driving under the influence of alcohol.  After the defendant was transported to the Van Buren County Sheriff’s Department, the arresting officer read him the form entitled, “Tennessee Implied Consent Advisement for Use in Mandatory Test Cases Per T.C.A. § 55-10-406(f).”  The form stated in pertinent part:

There exists probable cause to believe you were driving or in physical control of a motor vehicle while under the influence of alcohol and/or drugs (DUI) and the vehicle you were operating was involved in a crash resulting in the injury or death of another.  As required under T.C.A. § 55-10-406(f), I am hereby requesting that you submit to a chemical test or tests to determine the alcohol and/or drug content of your blood.

As required by State law I must advise you that if you refuse to submit to either or both tests, you will be charged with the offense of violation of the implied consent law.  If the judge finds you guilty of this separate offense your driver’s license will be suspended for a period of at least one year.

The defendant refused to submit to the blood test and was subsequently charged with a violation of the implied consent law.

After a preliminary hearing, the General Sessions Court of Van Buren County bound the DUI charge over to the grand jury and revoked the defendant’s license pursuant to T.C.A. § 55-10-406.  The defendant then filed a timely appeal in circuit court, contending that the form the officer read was “not applicable to him” because he was not involved in an accident, let alone an accident that resulted in the injury or death of another.  However, the circuit court upheld the revocation, finding that “although the Defendant was ‘misinformed’ or read provisions that [were] inapplicable to his position, the Defendant was advised that he would lose his license if a Judge found that he refused a chemical test . . . that the Defendant did refuse the sample testing although made aware of the consequences of refusal . . . [and] that the requirements were met for the Defendant to have his driver’s license revoked.”

Again, the defendant filed a timely appeal, this time to the court of appeals.  He raised one issue on appeal:

Whether the admonitions read to Defendant were proper and sufficient pursuant to Tenn. Code Ann. § 55-10-406 to require the revocation of Defendant’s license for one year.

Specifically, the defendant argued that the implied consent form was inapplicable to him because he was not involved in an accident.  Nevertheless, the appellate court affirmed the revocation, stating that whether the defendant “was arrested only for DUI or was also involved in an accident causing injury or death is inconsequential in determining if he was properly advised of the consequences of failing to submit to the blood test, as required by Tenn. Code Ann. § 55-10-406(a)(3).”

I should note that this is an excellent job of “lawyering” on behalf of the defendant.  There wasn’t much here to go off of, but they found the one issue that had a chance of winning.  As noted above, however, courts typically end up at the “right” conclusion and avoid deciding cases on technicalities.  Here, the defendant was advised of the consequence of refusing to take the blood test and he refused to take it.  Good lawyering aside, revocation affirmed.

State v. Hembrook, No. M2011-01358-COA-R3-CV (Tenn. Ct. App. July 31, 2012)

Sobriety Checkpoints Throughout White and Van Buren Counties During Thanksgiving Week

Spartalive.com reports that the Tennessee Highway Patrol will have several sobriety checkpoints in White County (Sparta) and Van Buren County (Spencer) throughout Thanksgiving week.  The troopers will be looking for people driving under the influence of alcohol or drugs.

If you are charged with a DUI or drug offense in Sparta or Spencer, contact an attorney as soon as possible.  I can handle many of these cases in general sessions for as little as $200.

 

Other Useful Links:

Van Buren County, Tennessee

White County, Tennessee

Several recent arrests in Cookeville, TN

The Herald Citizen reports several recent arrests in Putnam County, Tennessee, including burglary, theft of $1000 or less, simple possession, vandalism, aggravated assault, DUI, driving on suspended, drug paraphernalia, and evading arrest.  Here is what those defendants may be facing.  If you’re facing these or other charges, talk with a lawyer.  Every case is unique.

Burglary (T.C.A. § 39-14-402)

A person commits a burglary who, without the effective consent of the property owner,

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;
(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;
(3) Enters a building and commits or attempts to commit a felony, theft or assault; or
(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

According to the news story, the defendant allegedly broke into a storage unit.  So, he allegedly violated subsection (1), (2), and/or (3), which is a Class D Felony.  The sentence for a Class D Felony is two to twelve years, depending on one’s range, and a fine of up to $5,000.  Plus, there is likely to be restitution.  It looks like the defendant could also be charged with a violation of subsection (4), a Class E Felony.  It carries a sentence of one to six years with up to a $3000 fine.  Depending on the facts, the defense may be able to talk the state down to a trespassing charge or dropping the burglary charge with a plea to theft under $1000.

Theft $1000 or less (T.C.A. § 39-14-103, -105)

A person commits theft of property if, with the intent to deprive the owner of the property, the person knowingly obtains or exercises control over the property without the owner’s effective consent.  The penalty for theft depends on the value of what is taken.  Theft of property or services valued at $1000 or less is a Class A Misdemeanor, with a maximum sentence of 11 months, 29 days, and a maximum fine of $2,500.  Misdemeanor theft often pleas to probation, but everything depends on the specific facts and circumstances of the case.  If the District Attorney’s Office is dropping a felony charge, such as burglary, they may want some time served in exchange for dropping the higher charge.

Simple Possession (T.C.A. § 39-17-418)

The simple possession of an unlawful drug without a valid prescription is, with a few exceptions, a Class A misdemeanor.  That means it carries an 11 month, 29 day maximum sentence and a $2500 maximum fine.  Unlike most non-drug offense misdemeanors, drug offenses also carry mandatory minimum fines.  See T.C.A. § 39-17-428.  The simple possession of marijuana or hashish carries a $250 minimum fine for the first offense, a $500 minimum fine for the second offense, and a $1000 minimum fine for the third or subsequent offense.  The simple possession of another drug carries a $750 minimum fine for the first offense, a $850 minimum fine for the second offense, and a $1000 minimum fine for the third or subsequent offense.

Like theft under $1000, simple possession often gets offers of 11/29 probation.  However, you should always consult an attorney to negotiate with a DA.  A lengthy criminal history or several other crimes may result in a worse offer.  On the other hand, someone with a clean record and a small amount of certain drugs may be able to negotiate some good behavior probation.  It is so fact specific that you need to talk with a lawyer for more information.

Vandalism (T.C.A. § 39-14-408)

A person commits vandalism when he damages or destroys property.  Like theft, the level of punishment depends on the value of the damage done to the property.  Interestingly, “value” is determined by the fair market value of the property at the time and place of the offense.  See T.C.A. § 39-11-106(a)(36).  Replacement value should only be used if fair market value cannot be established.  This often comes up in both theft and vandalism cases.

For example, suppose someone damages a television that cost $1200 three years ago.  At first glance, it seems like they would be guilty of vandalism over $1000.  However, in the past three years, the value of the TV has most likely declined below $1000.  While it’s the State’s burden to prove value, your lawyer may be able to use Ebay and other price lists to convince the district attorney that you should really be charged with vandalism under $1000.

Aggravated Assault (T.C.A. § 39-13-102)

Aggravated assault is an intentional, knowing, or reckless assault that results in serious bodily injury to another, the death of another, or involved the use or display of a deadly weapon.  An aggravated assault also occurs when someone intentionally or knowingly strangles or attempts to strangle another.  An assault is intentionally, knowingly, or recklessly causing bodily injury to another or intentionally or knowingly causing another to reasonably fear imminent bodily injury or causing physical contact that a reasonable person would regard as extremely offensive or provocative.  See T.C.A. § 39-13-101.

Most types of aggravated assault are Class C Felonies, which carry sentences of three to fifteen years, depending on range, and a fine of up to $10000.  Some types of aggravated assault are Class D Felonies, which carry sentences of two to twelve years, depending on range, and a fine of up to $5000.

Aggravated assault is often difficult to plea to a lower offense.  Like many district attorney’s offices, the district attorney in Cookeville often takes a hard stance against violent crime.  Of course, everything is very factual.  Sometimes, the victim started it or played just as big of role in the altercation as the defendant.  In those cases, your attorney may be able to talk the DA into reducing the charges, or at least get you a plea with reduced time served.

Driving Under the Influence (T.C.A. § 55-10-401)

Driving on Suspended (T.C.A. § 55-50-504)

Driving on a cancelled, suspended, or revoked license is a Class B Misdemeanor for the first offense and a Class A misdemeanor for second or subsequent offense.  Thus, first offense driving on suspended carries a sentence of up to six months and a maximum fine of $500, and second or subsequent offense driving on suspended carries a sentence of 11 months and 29 days, and a maximum fine of $2500.

Like many misdemeanors, these can often be plead to supervised probation, and in some cases with defendants with good records, they can be plead to unsupervised probation after a period of time on supervised probation and with the payment of all fines and court costs.

Drug Paraphernalia (T.C.A. § 39-17-425)

Drug paraphernalia for use or intent to use is a Class A Misdemeanor.  Drug paraphernalia to deliver or with intent to deliver or to manufacture with intent to deliver is a Class E Felony.  Most drug paraphernalia cases are charged as misdemeanor paraphernalia.  So, they carry sentences of up to 11 months and 29 days in jail and fines of up to $2,500 dollars.  They also have minimum fines of $150 for the first conviction and $250 for second or subsequent convictions.

Normally, drug paraphernalia pleads to an 11/29 suspended sentence on supervised probation.  Sometimes, you may be able to get a slightly better deal, such as waiving court costs or good behavior probation, depending on the facts of your case.  As always, talk with a lawyer.

If you are unfortunate enough to be charged with the felony version of drug paraphernalia, you are looking at a potential sentence of one to six years, depending on range, and a potential fine of up to $3,000.  The minimum fine is also higher: $1,000 for a first offense and $1500 for a second or subsequent offense.

Felony drug paraphernalia is often accompanied by more serious charges.  If they think you’re distributing drug paraphernalia, it’s often because they think you’re distributing large amounts drugs.  So normally, if you’re charged with felony drug paraphernalia, you have even more serious offenses to worry about.

Evading Arrest (T.C.A. § 39-16-603)

Evading arrest requires intentionally concealing oneself or fleeing by any means of locomotion from a law enforcement officer if the person knows the officer is attempting to arrest him or if the person has been arrested.  If the person flees while operating a motor vehicle, it is a Class E Felony.  If the person’s flight creates a risk of death or injury to innocent bystanders, it is a Class D Felony.  If the person just runs on foot from the police, it’s a Class A Misdemeanor.

A person charged with Class D Felony evading arrest faces a two to twelve year sentence, depending on range, and up to a $5000 fine.  A person charged with Class E Felony evading arrest faces a one and six year sentence, depending on range, and up to a $3000 fine.  Misdemeanor evading arrest carries an 11/29 sentence with up to a $2500 fine.

Evading arrest is fact specific on what the DA will want to do with you.  If you put an officer or others at risk of injury, the DA may want to nail you.  Alternatively, if you’re “big boned” like me and made a sad, failed attempt at fleeing on foot, the DA and the officers may find your attempt somewhat amusing and offer you a probation plea.

As always, talk with a lawyer.  It cannot be emphasized enough that every case is different.  Your mileage may vary and you may be able to get a better or worse deal depending on your case, your history, the DA’s caseload, etc.  Or, you may say “screw a plea deal” and want to take it to trial.  However you proceed, don’t wait to speak with an attorney.

 

 

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).