How does the State attempt to prove its case?
Perhaps no area of the law impacts as many different people as the criminal charge of driving under the influence, also known as DUI. As a result of millions of dollars in lobbying efforts and federal funding to the States, DUIs are prosecuted more harshly and aggressively compared to other misdemeanor offenses. A person convicted of a DUI faces mandatory incarceration, fines, loss of driver’s license, and other consequences of a permanent criminal record. However, just because you are charged with a DUI does not mean that you will be convicted of a DUI. DUIs involve scientific and legal issues that are specific to DUI cases. An experienced DUI attorney will fight the charges against you to ensure that you have the best opportunity possible to put this situation behind you.
To prove a DUI, the State must establish that you were under the influence of drugs or alcohol, that you were driving or in control of a motor vehicle, and that you were driving or in control of the motor vehicle in a public place. This is not necessarily as straightforward as it may seem.
The National Highway Traffic Safety Administration (NHSTA) is a federal agency that has established national standards for training officers on DUI cases. Officers are trained that, before pulling someone over on suspicion of DUI, they look for signs of impairment in the person’s driving. Once you are pulled over, the officer asks certain questions or asks you to perform certain tasks that are designed to detect impairment. Typically, the last step before an arrest is performing field sobriety tests.
Standardized Field Sobriety Tests
Field sobriety tests were developed by NHTSA and are designed to test your physical coordination at the same time as testing your mental alertness. The term “standardized” means that the tests must be administered the same way each time. Officers are trained – and NHTSA requires – that the field sobriety tests must be administered and graded a specific way. If the officer deviates from the instructions or grading of the tests, it can affect the reliability and validity of the tests and could mean the results of the tests will not be allowed in court. Therefore, it is important that your attorney knows the requirements of the field sobriety tests and can identify any issues caused by the officer’s failure to follow proper procedures. There are three standardized field sobriety tests that should be administered by police officers before deciding whether to arrest someone for a DUI.
The first test commonly performed by officers is the horizontal gaze nystagmus test (HGN). Nystagmus is an involuntary jerking of the eye that can be seen as the eyes are moving. Alcohol or drug impairment can cause nystagmus, however that is not the only cause. Some people are born with a naturally visible nystagmus, or nystagmus can also be caused by environmental factors such as flashing lights in the area where the HGN test is performed. During the HGN test, the police officer is looking for visible nystagmus in your eyes.
The second standardized field sobriety test is the walk and turn test. During this test, the officer is looking for eight cues of impairment. “Cues of impairment” is simply a term for “mistakes” during the testing. However, at the time of the test, the officer does not tell you what those cues are. Instead, the officer will give you a set of instructions and a short demonstration before asking you to complete the test. You must then complete the physical test of taking nine heel to toe steps down a line, then walk nine heel to toe steps back. You are supposed to keep your arms at your sides, count out loud, and never step off of the line. The test is graded harshly – if you present only two of the eight cues, the officer will consider you to have failed the test.
There are certain requirements for the officer during this test, too. The officer must properly instruct and grade you during the tests. If the officer does not give you all of the instructions the way he or she is trained to, it can impact the reliability of the test. Additionally, officers are trained that, because this test requires physical coordination and balance, certain people should be excluded from being asked to perform the walk and turn test. People are not “suitable candidates” for this test are people with a physical injury or impairment that would affect balance, or people who are over a certain age or weight. However, many times, officers either do not ask questions about a person’s physical condition, or just tell the person to do their best. You should also be wearing proper footwear for the tests – or should be given the opportunity to change or take off shoes that would impact your ability to do the tests. Further, officers are also trained that there should not be any distractions in the testing environment that would unfairly impact your ability to do this test.
The final standardized field sobriety test is the one leg stand. During this test, the officer will instruct you to stand with your arms at your sides, raise one foot approximately six inches off the ground, look at your foot and count out loud. The officer is counting to thirty in his or her head but doesn’t tell you this at the time of the test. Instead, the officer will instruct you to count until he or she tells you to stop. In this test, there are four cues of impairment that the officer is looking for, but only two mistakes on this test will be considering a “failing” score.
Like the other two field sobriety tests, the officer must properly instruct you and must also make sure that external factors aren’t impacting your ability to complete the test. This means that the ground should be dry and level, and you shouldn’t be forced to balance on loose rocks or other uneven surfaces. There are also people who are not good candidates for this test, either – whether due to age, weight, or other physical injuries.
Importance of Hiring Experienced DUI Attorneys to Fight the Results of Field Sobriety Testing
While officers may act as if standardized field sobriety tests are simple and straightforward evidence of impairment, there is much more to the tests than meets the eye. Just because an officer says you “failed” field sobriety tests does not automatically mean that you can be convicted of a DUI. Depending on the way the tests were administered or graded, the results may be of little evidentiary value in court. The experienced attorneys at Stephens, DiRado & Caviness, LLP understand all aspects of the field sobriety tests and can identify weaknesses in the State’s case to fight the charges against you. To protect your future and your rights, it is critical that you hire an experienced DUI attorney.
Chemical Testing to Determine Blood Alcohol Content – Breathalyzer/Blood Draw
After someone is arrested for a DUI, there is typically a final piece of evidence the police officer will attempt to obtain – a sample of the person’s blood or breath to determine blood alcohol content (BAC).
“Breathalyzer” is the generic name for machines that law enforcement officers use to collect a sample of your breath for blood-alcohol testing. There are different kinds of these machines such as portable devices and larger, stationary machines. There are also different manufacturers. However, the principles underlying the machines and the testing processes are the same.
When taking a breathalyzer test, you will be asked to give a long, deep breath into a tube on the machine. The machine analyzes the amount of alcohol in your breath, then calculates and converts that amount to an estimate of the alcohol that would be in your blood stream (BAC). If the results of that test support the State’s allegations that you were driving under the influence, the State will attempt to use that evidence against you in court.
Although breathalyzer devices are commonly used, like any scientific testing device, proper protocols must be followed at each step of the testing process, otherwise the results may be invalid and inadmissible in court. For example, officers are required to conduct a twenty-minute observation period of you prior to administering the breath test. This is because any sort of foreign matter in the mouth prior to the test – even burping or hiccupping – could impact the results of the test. There are also strict requirements for routine calibration of every breathalyzer machine used by law enforcement. If the machine is out of compliance with its maintenance schedule, the results may be unreliable.
These are only a couple of examples of reasons why the breathalyzer test results could be incorrect or unreliable. If you have been charged with a DUI and consented to a breathalyzer test, you should not assume that the test results will automatically be admissible against you in court. It is necessary to carefully examine the entire circumstances surrounding the test to be able to effectively challenge the results to fight your case.
The other testing method officers use to determine blood alcohol content is a blood test. After arresting someone on suspicion of DUI, officers may transport the person to a hospital – or have EMTs come to the arrest location – to perform a blood draw. During this test, a small amount of blood is drawn into two vials which are then sent to the Tennessee Bureau of Investigation Crime Laboratory for chemical testing. The chemical testing process – commonly performed with a gas chromatography machine – detects whether there are drugs or alcohol in your blood sample and if so, the levels of those drugs or alcohol. Like a breath test, if the results of the blood testing support the State’s theory that you were driving under the influence, the State will attempt to use the results of the blood testing as proof of your guilt in court.
Generally speaking, blood testing is more accurate than breathalyzer testing. But only if performed correctly at every stage of the process. This means that the blood draw must be done correctly, the blood sample must be stored and preserved correctly, the testing itself must be done properly, and the results of the blood testing must be recorded accurately. We never assume any of these things.
As a particularly extreme example of how blood tests can be mishandled is a well-known case in Chattanooga, Tennessee. An individual was charged with vehicular homicide because his blood alcohol test reported a result of nearly four times the legal limit. However, when his defense attorney had the blood independently retested, the blood alcohol result was actually 0.001 – completely sober. The T.B.I. investigated and discovered that the analyst who performed the testing had “switched” two samples. The vehicular homicide charges were dismissed, the analyst was fired, and over three thousand blood tests from that laboratory had to be re-tested.
This illustrates why it is important that we carefully analyze each step of the State’s testing process and, when necessary, hire our own expert to independently test blood samples. It also shows why a potentially incriminating blood test result does not automatically equal a DUI conviction.
Penalties for a DUI Conviction
In Tennessee, a first conviction for DUI carries the following penalties: eleven month and twenty-nine day sentence with a mandatory period of at least forty-eight hours of incarceration (increased mandatory incarceration of seven days if the blood alcohol content is above .20), a one year driver’s license revocation, a $350.00 minimum fine (maximum $1,500.00), and typically requirements involving DUI school or a drug and alcohol assessment.
Should You Consent to a Breath or Blood Test?
After you have been arrested for a DUI, officers will usually ask whether you consent to provide a breath or blood sample for chemical testing to determine your blood alcohol content. The officer may tell you that if you aren’t under the influence, the test will help you. But then if you ask questions about your rights and how the evidence might be used against you, the officer will tell you that he or she cannot give you legal advice. You will be forced to make a difficult decision on the side of the road in handcuffs or sitting in a police car.
You should carefully consider this decision because it has long-term impacts on your case. What the officer may not tell you is that you have the legal right to refuse to take any kind of breath or blood test. Unless the officer obtains a search warrant, you cannot be forced to undergo a chemical test and potentially provide incriminating evidence against yourself.
Implied Consent Law
There are possible consequences for refusing to provide a sample, though. In Tennessee, the “implied consent” law imposes potential penalties for refusing to consent to a chemical test. Under this law, the police can ask any driver in Tennessee who is suspected of driving under the influence to provide a breath or blood sample. The driver can refuse, but if he or she does refuse, the court may suspend the driver’s license for a year (or longer if the driver has previously been convicted of a DUI).
One important distinction between an implied consent law violation and a DUI conviction is that the implied consent violation is an administrative penalty, not a criminal violation. Just because you refuse to consent to a blood or breath test does not mean that you will not be charged with a DUI. In nearly every case, you will still be charged and forced to fight the State’s case in court. What the officer doesn’t tell you is that he or she was likely going to arrest you anyway. If you refuse to give a breath or blood sample, that is one less piece of evidence the State could use against you in court.
If you are facing an implied consent violation, the State must still prove in court that you violated the implied consent statute and there are requirements the officer must have followed in order for the violation to be valid. For example, the officer must have fully and properly advised you of your rights and the potential penalties under the implied consent statute. The officer must have also had probable cause to arrest you for DUI. If these requirements are not met, the implied consent violation may be dismissed in court.
Importance of Hiring Experienced DUI Attorneys to Fight the Results of Field Sobriety Testing
The results of breath or blood testing can be the most important evidence in a DUI case. The State will attempt to rely on the results as scientific proof that you were under the influence, but as discussed above, just the fact that the test was performed does not mean that it is reliable or admissible in court. The attorneys at Stephens, DiRado & Caviness, LLP have the training and experience necessary to carefully analyze all of the State’s evidence in a DUI case and to fight the charges against you. To protect your future and your rights, it is critical that you hire an experienced DUI attorney at Stephens, DiRado & Caviness, LLP.
If a person has been convicted of a DUI within the last ten years and is convicted of an another DUI, he or she faces increased mandatory punishment. The penalties for additional DUI convictions increase greatly with each conviction.
The penalty for a DUI 2nd offense conviction is an eleven month and twenty-nine day sentence with a mandatory term of incarceration of forty-five days. There is also a two year driver’s license revocation, a minimum $600.00 fine (maximum $3,500.00), and possible loss of the vehicle driven at the time of the offense.
A DUI 3rd offense conviction carries with it an eleven month and twenty-nine day sentence with a mandatory term of incarceration of 120 days. The driver’s license revocation period is three years. There is an $1,100.00 minimum fine (maximum $10,000.00). There is also a possible loss of the vehicle driven at the time of the offense.
A DUI 4th offense conviction is a Class E felony with a range of punishment from one to six years and a mandatory period of incarceration of 150 days. The driver’s license revocation period is five years. There is a $3,000.00 minimum fine ($15,000.00 maximum). There is also a possible loss of the vehicle driven at the time of the offense.
The penalties continue to increase if the number of previous DUI charges in a person’s history is greater than four.
If you or a loved one is charged with a DUI, partner with the experienced team of DUI defense attorneys at Stephens, DiRado & Caviness, LLP to protect yourself and your future. Call today for a complementary consultation so that we can begin crafting a plan to defend your case and achieve the best outcome possible.