DUI Frequently Asked Questions

Basic Questions and Answers Specific to Tennessee DUI

What is a DUI?

DUI is driving under the influence. This includes driving that is impaired by the consumption of alcohol, drugs, inhalation of marijuana. It is no defense that you are a lawful user.

The State can make the case in either of two ways. The first is impairment, driving impaired by the use of one of the numerous substances. The second is, per se, over the limit. The limit in Tennessee is .08 percent of alcohol in the blood.

An impaired driving case usually involves proof that your motor and cognitive skills were impaired to some degree affecting your ability to operate a motor vehicle. This is generally proven by testimony from the arresting officer of blood shot watery eyes, slurred speech; used the car for balance, unsteady on feet and poor performance on field sobriety test.

A per se case, over the .08 limit in Davidson County is by proof of alcohol result over .08, by breath or blood analysis. Either procedure is equally admissible in court. A male of 165 pounds will register approximately .08 after consuming approximately four (4) beers.

In the typical case where a person has submitted to a blood alcohol/breath test, the state will attempt to prove a violation through impairment and by being over the .08 limit. You can be convicted of both. Because impaired and per se violations are merely two separate ways the state may make their case for driving under the influence on any particularly one occasion, only one conviction will stand.

Should I have taken the breath test?

It is the law, and no one should advise you to break the law. If you registered over the limit, but relatively low and there are no aggravating circumstances, it is still possible that your case could be settled on a charge which does not involve the automatic revocation of your driver's license. Should you choose not to take the blood/breath test, you will be charged with a violation of the implied contest law which involves revocation of your driver's license for one year, assuming you have had no prior conviction on implied contest. This leads us to the next logical question.

What is Implied Consent?

Implied Consent is a statute which authorizes the state to pull your driver's license for one year if the state can prove that you were under a valid arrest for DUI, requested by an officer to submit to a blood / breath test and refused. Implied consent is not a criminal matter, it is civil. The proof required to pull your license is merely preponderance of the evidence as opposed to proof beyond a reasonable doubt as required in a criminal case and is generally heard by the Judge not the jury.

May I obtain a restricted license for a DUI or an Implied Consent after my license has been taken?

Yes, but it is not automatic. In the case of a DUI or an implied consent violation, assuming you do not have a prior conviction for either, you will be eligible to obtain a restricted license. I will go through that procedure in the next paragraph; yet, it is important to know that a restricted license will only allow you to drive to and from work, during work or to and from any court mandated treatment. It has been recently amended so you can also drive to church. A restricted license will not allow you to take your children to school, your mother to the doctor, go to the grocery, or do any of the acts normally associated with being an otherwise good citizen.

You must first obtain an SR22, proof of liability insurance. This proof of insurance costs more than your present insurance for two reasons...one, because you have a prior conviction for DUI or IC and you are a greater risk to the insurance carrier. They will charge you proportionate to their perceived risk. Second, the insurance company has a reporting requirement on SR22, they must report to the state if you drop coverage, the more paperwork, the more they charge you. If you are convicted of a DUI you must keep the SR22 policy for three years regardless of the fact that your license is only suspended for one year.

Some courts require that all fines and costs be paid before the judge will issue a restricted license. I have found no authority for this; but, the person that wears the robe makes the call and that is all we need to know about that. This could be challenged but it would cost more in attorney fees than it would to merely pay the fines and costs. An attorney regularly practicing DUI law will be fully appraised of each judge's general procedure. No, you may not switch judges.

I had some old DUI's, do they count?

A multiple offender is defined as an individual who has been convicted of DUI or other enumerated vehicle crimes within a ten year period. The ten year period is from date of conviction to date of conviction. The statute as enacted also allows the state to go back an additional ten years from the date of your last conviction. For instance, if you had a prior conviction on April 1, 2005 the State could go back an additional ten years to April 1, 1995 to pick up any additional DUI convictions and likewise for the entire first ten year period. So, you can have exposure for the last twenty years if the last conviction occurred on the last day of the ten year period.

Do I need a lawyer?

Having a lawyer in court is much like having a doctor in the delivery room. You do not need a doctor to have a baby; but, you need a doctor in case something goes wrong and to insure that all the proper procedures are followed. You need a doctor that knows something about babies.

I have handled hundreds of DUI's in my thirty-one years of practice. I authored The Book on DUI in 1999, published by M. Lee Smith Company (now out of print), sold only to lawyers. I am well versed in DUI Law. The DUI Statute, found in The Tennessee Code, is ten (10) pages of legislative text. By comparison the Theft Statute is a page and a half and the Capital Homicide Statute is less than a page. DUI law changes with each term of the legislature and new opinions from the Court of Criminal Appeal are released each week.

Yes, you need a lawyer, and one that regularly handles DUI cases.

What is Your DUI Experience?

I have handled hundreds of DUI cases and numerous vehicular homicides in my thirty-one years of practice. I authored The Book on DUI in 1999, published by M. Lee Smith Company and sold solely to Tennessee lawyers (now out of print). I have argued cases before the State Court of Appeals and State Supreme Court.

Three of these cases discuss important issues of law and resulted in remand to the trial court. The first (a vehicular homicide) stands for the proposition that blood may not be drawn from an unconscious person in a vehicular homicide without prior evidence that the defendant caused the accident and that alcohol was involved. (That case was taken to the State Court of Appeals on a certified issue of law and remanded to the trial court where the case was dismissed and the defendant's record expunged).

Another case (DUI, per se) stands for the proposition that the arresting officer may not fill out paperwork during the twenty minute observation period required in breath testing. On appeal the Breath Test Result was suppressed and the case sent back to the trial court where it was subsequently settled on a reduced charge.

In another (drug case) the Supreme Court held that where the State gave notice of enhancement on a two count indictment on possession of over 300 grams of cocaine and later obtained a superseding indictment for conspiracy to deliver over 300 grams of cocaine, the original notice of enhancement may not be used to increase punishment on the superseding charge. Defendant was sentenced as a Range I Offender as opposed to a Range II. (Though these cases may be reviewed by citation to the name of the defendant [which is public record] I have chosen not to name the clients).

We will work your case not only as if it is going to trial; but, we will attempt to preserve important issues of law to argue on appeal if we are unsuccessful in negotiating a plea to a lesser offense and later unsuccessful in trial. In most instances, issues not raised at the trial level will be waived on appeal. It simply is best to assume that all cases will be tried and prepared accordingly.

The harder we work on the front and on the case the better our chances of obtaining a favorable offer of settlement.

Regardless of whether you want to avoid a jury trial at all costs, your case must be properly prepared.

What is the DUI Statute?

DUI is a relatively complicated area of Criminal Law. The general statute is T.C.A. §55-10-401. The primary statue, T.C.A. §55-10-403, itself is ten pages of legislative text. The statute is amended (changed) every year with each meeting of the legislative.

Statute T.C.A. §55-10-401 states:

It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is general frequented by the public at large, while:

Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or

The alcohol concentration in such person's blood or breath is eight-hundredths of one percent (.08%) or more.

Click here to Link to T.C.A. §55-10-403

What Can I Expect From Lawyer Fowlkes?

The State must prove beyond a reasonable doubt that you are guilty of driving under the Influence.

Our job, yours and mine, is to find that reasonable doubt. I go to the scene of every DUI arrest when practical, obtain your medical history when appropriate, ask that you complete a relatively detailed information sheet for my review and determination of any information that we may find helpful, review your criminal history (if any) to determine your exposure to enhancement, as well as, any technical deficiencies in your prior convictions.

There may be a video of the arrest which often is much more helpful to the defense than the prosecution. It is also necessary that we obtain statements from all witnesses to the offense...when helpful. We will review the NISTA Field sobriety guidelines together and determine if the arresting officer followed those procedures.

Each case is prepared as if it were going to trial. This is for two reasons, first, should the case not settle and be set for trial (8 months or a year away) it will be difficult to prepare after memories have faded and evidence is lost or forgotten. Second, what we learn in trial preparation will be used in hopefully negotiating a plea to a reduced charge with the Assistant District Attorney General.

I will be pleased to meet with you. The consultation is free. It takes time to prepare a DUI case properly, I will be pleased to spend the time with you and see if there is a way to work our way through this together.

For additional information, please contact our firm in Nashville, Tennessee.