In Nashville, arrests for driving under the influence (DUI) have declined dramatically.  In the early years of this century, 2,000 DUI arrests were the norm.  In 2021 there were 370 DUI arrests in Nashville.  Public service media campaigns are in part responsible, but the advent of Lyft, Uber and Covid certainly contributed.

The Crime of DUI:

“Drunk driving” is a misnomer employed by the news media for its inflammatory appeal.  The Tennessee DUI statute makes any impaired driving illegal.  It is unlawful to be in physical control of a motor vehicle anyplace frequented by the public while under the influence of any substance that in any way diminishes the driver’s clearness of mind and control.

The law also makes it illegal to drive while having a blood alcohol concentration of 0.08% or more.  Lawyers refer to this as “DUI per se.”  In the case of a commercial vehicle the limit is 0.04%.

Penalties for DUI:

The penalties for a DUI conviction can be life-changing.  For a first offense the defendant must serve at least 48 hours in jail.  If the tested blood alcohol concentration was 0.20% or more, the defendant must serve at least 7 consecutive days in lockup rather than 48 hours. There is also a $350 fine, loss of driver’s license and concealed carry permit for one year.

Moreover, if the driver had a passenger under the age of 18, the sentence is enhanced by 30 days in addition to the 48 hours.  That means 32 consecutive days in jail.  Think of the situation of a 19 year old boy on a date with a 17 year old girl.  If that girl gets a bruise on her forehead the prosecutor may charge the boy with a Class D felony punishable by two to four years in jail.

DUI Second Offense Conviction:

A conviction for second offense DUI carries a 45-day minimum stay in jail plus an $600 fine, loss of driver’s license for 2 years . If a clinical substance abuse assessment indicates the needs for treatment, 20 days of the mandatory minimum 45 days may be be served in a residential treatment program. If the defendant suspects he has a substance abuse problem he should discuss this option early on. The underage passenger enhancement also applies, so a tipsy mom picking up her 17 year old daughter after school faces a minimum of 75 days on a DUI second conviction.

In the case of a second or subsequent DUI, the defendant’s vehicle is subject to seizure and forfeiture.  For the vehicle to be subject to forfeiture the previous conviction must have occurred within 5 years of the current conviction.  The language of TCA § 55-10-414(b) specifies that the triggering event is conviction, and not arrest, for the statute to apply. This may figure prominently in your lawyer’s strategy.

DUI Third Offense Conviction:

A conviction for third offense DUI carries a 120-day minimum stay in jail plus an $1,100 fine, and loss of driver’s license for 6 years. Fifty-five-five of those 120 days may be completed in treatment center if the defendant first completes a clinical substance abuse assessment and serves the 65 days in the jail or workhouse. This should be discussed with the defense lawyer as soon as possible.

The DUI Vehicle Stop:

Police must witness a crime or have reasonable suspicion of a crime to activate the blue lights and stop a vehicle.  Otherwise, it is and illegal seizure under the Fourth Amendment.  What crimes are we talking about?  Rolling through a stop sign or ”following too closely” can provide the pretext for a vehicle stop.  It does not matter that it was a pretextual stop.  That is the law according to the United States Supreme Court.

DUI cops are trained to approach the driver and to ask two things simultaneously (driver’s license and registration); to ask one question and immediately interrupt the driver; and to ask off-the-wall questions. If you do not believe me read this page from the National Highway Traffic Safety Administration DUI training manual.

Field Sobriety Tests:

No one in the history of mankind has ever passed a field sobriety test.  By the time a cop asks the driver to take field sobriety tests, he has already decided to arrest the driver for DUI. 

The first test is the Horizontal Gaze Nystagmus (HGN) which is where the cop shines a penlight in your eyes.  This evidence of this test is generally inadmissible in trial but poor performance on the HGN can be the basis of probable cause for a search warrant. See State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016). Tenn. The second and third tests are the One-Legged Stand (OLS) and the Walk And Turn (WAT). Look at the testing protocol for the Walk and Turn:

  1. Verify that the subject understands that the stance is to be maintained while the instructions are given.
  2. If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed.
  3. Tell the subject that they will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
  4. Demonstrate several heel-toe steps.
  5. Demonstrate the turn.
  6. Tell the subject to keep his arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
  7. Ask the subject whether they understand; if not, re-explain whatever is not understood.
  8. Tell the subject to begin.
  9. If the subject staggers or stops, allow them to resume from the point of interruption; do not require the subject to start over from the beginning

When testifying cops refer to any deviation from the instructions as a “clue” (to impairment). “Clues” include:

  1. Loses balance during instructions (i.e. breaks away from the heel-toe stance)
  2. Starts walking too soon.
  3. Stops while walking.
  4. Misses heel-to-toe while walking (i.e., misses by at least one-half inch).
  5. Raises arms from side while walking (by 6 inches or more).
  6. Steps off the line.                                         
  7. Turns improperly.
  8. Takes the wrong number of steps.

First I would point out that it takes a full minute for the cop to read and demonstrate the instructions. In the meantime, the driver loses a point if he cannot stand heel-to-toe for a full minute. The driver loses a point if he understands the instructions and starts walking before the cop signals him to start. The driver loses a point if 5/8 of an inch separate the heel and toe at any point. The test was designed to assist prosecutors in getting DUI convictions.

Read the entire Field Sobriety Testing manual (3.8MB): CLICK

Blood and Breath Tests:

Once the driver has “failed” the field sobriety tests, the driver is placed in handcuffs and asked to take a blood or breath test. The driver can say “no” and he will be cited for a violation of the “implied consent law” and lose his driver’s license for a year regardless of the outcome of the DUI case against him. Blood and breath tests are governed by TCA 55-10-406.

Tests can be compelled after a lawful arrest for vehicular assault or vehicular homicide.  Further, the statute requires law enforcement to administer test(s) in  the case of bodily injury or death; or if there is a passenger under 18 years old.