Written by attorney Blake Kelley


According to Tennessee Code Annotated section 55-10-401 et seq. drunk driving, driving while intoxicated, or driving while under the influence of drugs is a crime in Tennessee. The offense of Driving Under the Influence, or DUI, is committed when an individual operates a motor vehicle on any highway, street, alley way, shopping center complex or apartment building parking lot while under the influence of an intoxicant. Tennessee law states that one is presumed to be under the influence if they have a blood alcohol content (BAC) of .08% or higher. An inference, or conclusion, can be drawn that a person is under the influence with a BAC of .08% for adults, and .05% for juveniles, which is a misdemeanor crime itself. Before 2002 Tennessee's BAC was .10%. The current law is designed to discourage drinking alcohol or taking drugs while operating or controlling a motor vehicle on Tennessee's public and sometimes private roadways and parking lots, especially when there is the remote chance that others could be involved or held responsible in personal injury or property damage. A BAC of .15 increases a driver's chances of being involved in an accident by 22.* A BAC of .08 increases a driver's chances of being involved in an accident by 7. A BAC of .04 increases a driver's chances of being involved in an accident by 2. Generally a 175-lb. male completing one drink per hour for three continuous hours without food and low level of activity will result in a Blood Alcohol Content of .08. Generally a 120-lb. female completing one drink per hour for two continuous hours without food and low level of activity will result in a Blood Alcohol Content of .08. An increase in food intake, activity, and a person's weight will slightly decrease the BAC. If a person has had six drinks in less than six hours that person is more than likely at or above .08 or drunk. In this discussion, one drink is equivalent to a 12 ounce beer or an 8 ounce 80 proof liquor drink with a mixer. A person can be charged with DUI for operating a motor vehicle on a Tennessee public road, public or private parking lot or private drive not entirely owned by the driver and could be used by others. When a drunken person is in a vehicle and in control of the keys to that vehicle they can be charged with a DUI. A person can be charged with a DUI while allowing another person under the influence of alcohol or drugs to operate or control a motor vehicle that they own. A passenger in their own car is often and can be charged with DUI while allowing someone under the influence of alcohol or drugs to drive. When is a person allowed to experience the thrill and power of operating a motor vehicle while drinking alcohol. A person is allowed to be on their own property, owned free and clear, to operate a motor vehicle without passengers and no other motor vehicles in the area. Key question: is there a chance that operating the motor vehicle while under the influence will result in a personal injury or property damage which could be inflicted upon someone else? In Tennessee a police officer has to have reason to make an investigatory stop. Swerving over the center or right line one time on the road is not reason enough for a stop. Speeding, expired tags, swerving continuously, damaged vehicle, light out, or a window shattered is reason enough for an investigatory stop. Many DUIs are successfully defended when an attorney knows how to present to the court that there wasn't a reason for the police officer's stop. Former Tennessee Titans and current Baltimore Ravens QB, Steve McNair's firs DUI charge was dismissed for lack of reason for probable cause to make an investigatory stop. When an officer pulls a vehicle over, that officer's main purpose is to ferret out a misdemeanor or crime, not to protect and serve. With the slightest amount of information good or bad, true or false, and officer can create a misdemeanor or crime. An officer will collect information, good or bad, true or false, by all of his senses to represent that a crime has been committed. THE LESS INFORMATION THAT A POLICE OFFICER COLLECTS, THE WEAKER HIS/HER CASE. Please understand that information that a driver may think is good and or true can and WILL be used against them. Often a successful defense of a DUI is prevented by a driver or passenger's participation in the police officer's investigation. When pulled over, a driver is obligated to present to the police officer a valid driver's license, proof of liability insurance and vehicle registration. A DRIVER OR PASSENGER HAS NO OBLIGATION TO PARTICIPATE IN AN OFFICER'S INVESTIGATION. Here is a quote for a driver who may have a BAC of .08 or greater to remember: "I refuse to participate in thins investigation and offer no other comment, demonstration or take any test." Then the driver should sit, blink and breathe with hands visible until arrested or released within a reasonable amount of time. A DUI charge can be successfully defended as long as there is very little hard evidence. Hard evidence that is big would be agreeing to give blood that, when tested, has a BAC of .08 or greater. A breathalyzer read out is hard evidence but generally is not as solid as a blood test. If a driver has reason to question their BAC level and that driver does not want a DUI conviction, that driver should choose not to participate in an officer's investigation. If a driver has no reason to question their BAC level and that driver chooses to take a breathalyzer or give blood, the police officer has an obligation to observe the driver for at least a 20-minute period before administering the test. A first time DUI conviction can have serious consequences, financial costs and jail time. When a driver is found or pleads guilty for a DUI there are fines, court costs, added fees such as Traumatic Brain Injury Fund and costs for mandatory counseling which could, loss of driver privileges, depending on the county/jurisdiction have a total cost from $2,500 to $3,500 and a large amount of time, travel and jail time of up to 48 hours.The state of Tennessee will take prior DUI convictions (as far back as ten years) into consideration when determining sentencing. DUI Sentences in Tennessee: ---1st Minimum of 48 hours in jail. From January, 2006 to June 2008, the TN State legislature allowed 24 hours of litter/trash pick-up in lieu of 24 of the hours in jail. Minimum of $350.00, and License is suspended for one year Attendance of an Alcohol Safety School is required (12 hours and about $300). It can be completed in some jails. ---2nd Minimum of 45 days in jail fined a Minimum of $600.00, and License is suspended for two years. Also, your Vehicle is subject to seizure ---3rd Minimum of 120 days in jail Minimum of $1,100.00 License is suspended for three years. The maximum punishment for any misdemeanor DUI conviction that does not involve injury or excessive property damage is 11 months and 29 days in jail, and a $15,000 fine. A fourth offense DUI is a felony There is a such thing as a Driving While Impaired or DWI charge that is very similar to a DUI charge. The punishments vary on the restrictions on driver privileges. contact Blake Kelley, Attorney at Law [email protected] e-mai lor 615.305.4539

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