Tennessee DUI Law Questions

Reported by Will Carr

Hamilton County’s Assistant District Attorney says Tennessee does not
have a provision for a D.U.I. offender who has more than four offenses.
This comes after a Chattanooga man was charged with his 8th d-u-i this
past weekend.

The former president of Hamilton County’s Mother’s Against Drunk
Drivers says there is only one way to deal with re-peat D.U.I.
offenders.

“They need to be locked up. There are laws that will do that. We just
have to do our part,” Jim Herman says.

Herman is the former president of Hamilton County’s M.A.D.D, and he
says people who have been charged multiple times for D.U.I. should be
prosecuted to the fullest extent of the law.

This comes after Donald Lowery was charged with his eighth D.U.I.
Saturday night. Lowery hit two un-occupied cars on Dodson Avenue
including a 2004 Saturn.

“You know I think there are plenty of law right there, we just need to
enforce those laws,” Herman says.

Assistant District Attorney Jay Woods says they’re doing everything
possible to prosecute D.U.I. offenders.

“We are eager to make sure that offenders such as this eighth offender
aren’t continuing to endanger the public,” Woods says.

Right now a first time D.U.I. offender receives a misdemeanor, a
mandatory 24 hours in jail, and a suspended driver’s license for a
year.

The second offense has a minimum of 45 days in jail and a driver’s
license suspension of two years.

A third offense carries a minimum 120 days of jail time and a driver’s
license suspension of three to ten years.

A fourth offense turns into a felony conviction and jail time of at
least 150 consecutive days.

“After that a fifth offender still has the same minimum 150 days to
serve. Sixth, seventh, eighth the minimum is still 150 days to serve,”
Woods says.

So no matter how many offenses the minimum remains the same as a four
time offender. “We need a minimum sentence that addresses a multiple
offender who continues to pick up D.U.I.’s after he’s become a felon,”
Woods says.

Right now its up to the judge and the prosecutor’s discretion on how
to deal with offenders who have more than four D.U.I.’s. And Woods says a
package is going in front of legislature this year that will deal with
repeat offenders.

Source: http://www.wrcbtv.com

Rounds Signs Horse, Bicycle DUI Bill Into Law

Starting July first, South Dakota bar owners may want to install
hitching posts and bike racks out front. That’s when a new law takes
effect that insulates bike and horse riders from being arrested for
drunken driving.

Governor Rounds signed the legislation. The measure removes bikes,
trikes and horses from drunken driving statutes.

Legislators offered the bill as part of an effort to update the state
criminal code. Horses, bikes may be DUI-freeBill that doesn’t punish
drinkers for not driving under consideration.

By Jenny Michael – Associated Press Writer

Intoxicated South Dakotans should be able to ride horses or bikes home
from bars without fear of being arrested for drunken driving, legislators
decided Wednesday.

The House Transportation Committee voted 10-1 for a bill to exempt
horses and bikes from the statutory definition of vehicles, sending
HB1190 to the House floor.

Rep. Tom Hennies, R-Rapid City, said people who have been drinking and
choose not to drive cars or trucks should not be punished for using
alternate transportation.

“We should not push people to stop driving when they’ve been drinking,
and at the same time penalize them if they get on a bicycle when they’re
drunk,” the former police chief said.

Hennies told of a Pennington County man who was arrested several times
for drunken driving, including a fourth arrest while pedaling a bicycle
home one night. The man could have been sent to prison if he had been
convicted, Hennies said.

“I don’t know anybody that had that intent when we’re talking about
drunk drivers,” he said. A Pierre man was arrested several times in
recent years for being drunk on his horse. At one trial, the man said he
was upset for getting stopped because he had not been drinking and
smelled of alcohol only because he had put liniment on his horse, adding
that he wasn’t a danger because his horse “knew the way home.” He was
found innocent that time.

Hennies acknowledged that drunks on bikes and horses can cause
problems, but he said it would be better to charge them with disorderly
conduct than drunken driving.

The bill would affect more than just drunken driving, Hennies said. He
said people on horses and bikes would technically be excluded from other
state traffic regulations, such as obeying stop signs, although most city
ordinances would still require it.

“You won’t have to buy a license plate for your horse, either,”
Hennies added.

Rep. Gordon Peterson, R-Wall, wondered if the bill signified the
official end of the horse and buggy era in South Dakota.

“Cowboys that get drunk on Saturday nights and ride home in small
towns won’t like this too much,” he said. “They won’t have their fun with
their cops.”

Source:

Most Charges Dropped When Police Didn’t Show Up in
Court
By Rick BrundrettKnight

A dispute between two state agencies has resulted in the dismissal of
hundreds of cases involving accused drunken drivers who had their
licenses automatically suspended. From Jan. 1 through Wednesday, S.C.
Administrative Law Court hearing officers dismissed 421 cases statewide –
nearly 70 percent of the 602 cases they heard – making it easier for
those drivers to get back behind the wheel. And while the dismissal rate
for all of 2005 also was high – 60 percent – the difference this year is
that in the vast majority of the dismissed cases, the investigating
police officers didn’t show up for the administrative hearings because
they weren’t notified. Police officers haven’t been notified because the
court and the state Department of Motor Vehicles can’t agree who has that
responsibility. A state law that went into effect Jan. 1 transferred
oversight of the hearing officers from the department to the court.
Marvin Kittrell, the court’s chief judge, said Thursday that his staff
would start notifying police officers immediately. Meanwhile, Kittrell
said he is pushing proposed legislation, scheduled for debate Tuesday in
the S.C. House, that would more clearly give his office that
responsibility. “It’s a mess,” he said. “I really think it’s [the motor
vehicles department’s] responsibility.”

Under state law, licenses are suspended automatically for 90 days for
suspected drunken drivers who refuse to take a blood-alcohol test, and 30
days for those whose blood-alcohol level is at least .15 percent. A
blood-alcohol level of .08 percent or higher is illegal. Drivers can
appeal their suspensions to one of the state’s six Administrative Law
Court hearing officers. If their administrative cases are dismissed,
drivers can get their licenses back pending the outcome of their criminal
cases. Kittrell, who oversees the hearing officers, said he understands
the public safety ramifications of dismissing cases, but “we cannot be
more than a court.” “We have to apply the law equally and fairly to all
parties when they walk in the door.” Pursuing appeals

The Department of Motor Vehicles has not reinstated licenses in about
200 of the 421 dismissed cases while it files appeals with Kittrell’s
court, department officials said last week. Most of the affected drivers
can apply for temporary licenses pending the department’s appeals, they
said. “We have additional cases that are being reviewed, and we will
probably file more” appeals, said department spokeswoman Beth Parks. The
department contends that when its hearing officers and staff were
transferred to the court under the new law, “all the functions and duties
went with it,” Parks said. “We are working these things through with the
ALC,” said Lotte Devlin, the department’s policy and planning
administrator. “There’s just a difference in interpretation going on.”
Col. Russell Roark, head of the Highway Patrol, said last week his
division had been working with the DMV to develop a “cleaner”
notification process involving sending hearing notices to officers by
e-mail instead of by fax. The e-mails would be forwarded via a central
account at the Highway Patrol. “We’re relying on the Department of Motor
Vehicles to notify us,” he said. “If the DMV notifies us of a hearing, we
will try, to the best of our ability, to make sure our trooper is at the
hearing.” Roark didn’t know if any of the 421 dismissed cases involved
troopers. Legislative fix

A sponsor of a House bill aimed at fixing the problem blames the DMV.
“They’re deliberately picking a fight,” Rep. Greg Delleney, R-Chester,
said last week. “Had there not been a problem to begin with, the
administrative hearing officers would still be with them.” Before the
hearing officers were transferred out of the DMV, Delleney said, some
department managers treated the officers “like stepchildren.” Some were
even locked out of their offices, he said. Parks said department director
Marcia Adams – who was unavailable for comment last week – proposed in
2004 moving the hearing officers out of the department because “it really
wasn’t part of our mission.” Delleney said he supported the transfer to
the Administrative Law Court so drivers could have a “fair and impartial
hearing.” But Kittrell said he didn’t want the hearing officers under his
jurisdiction. “I felt I had enough on my plate at that time,” he said.
Delleney said he will push to get the legislation this week to the
Senate, which has a similar bill pending in a subcommittee. Under both
bills, the arresting police officers or officers operating Breathalyzer
machines would be designated as parties in Administrative Law Court
hearings. Kittrell said current law requires his court to notify only
parties. Police officers are now considered witnesses for the department,
not parties.

No-shows

Jami Goldman, executive director of the state chapter of Mothers
Against Drunk Driving, said last week she was unaware of the problem
until contacted by The (Columbia) State. “The officers I’ve met really
want to get drunk drivers off the road,” she said. “I would have to
believe if they had to be [at the hearings], they would be there. It
would be silly to pull somebody over and then go away.” Last year,
however, administrative hearing officers, while part of the Department of
Motor Vehicles, dismissed 1,818, or nearly 60 percent, of the 3,118 cases
they heard because police officers didn’t appear, Administrative Law
Court records show. Failure to notify police officers about the hearings
wasn’t the problem then, court and department officials said. But they
could not provide reasons for those dismissals. Robert Harley Jr., the
state’s chief hearing officer, estimated that in a third of his dismissed
cases, the arresting officer didn’t show up as part of a deal in which
the driver agreed to quickly plead guilty to the criminal charge.
Officers also might skip administrative hearings because it’s their
scheduled day off, he said, or they have conflicts with other cases, or
they don’t believe their case is strong. S.C. Administrative Law Court
hearing officers dismissed 421 DUI cases statewide – nearly 70 percent of
the 602 cases they heard – making it easier for those drivers to get back
behind the wheel.

Source: http://www.myrtlebeachonline.com/

8/16/2005

The Insurance Institute for Highway Safety has ranked Rhode Island
last in the nation for its laws against drunk driving, the Providence
Journal (http://www.projo.com) reported Aug. 15.

The nation’s smallest state was rated “poor” based on a ranking that
judged states based on their adoption of certain model laws, including
penalties for refusing to take a blood-alcohol test and allowing roadside
sobriety checks. Rhode Island was faulted for failing to pass either of
those laws, which the Institute contends have been proven to reduce drunk
driving.

See Report:
http://www.hwysafety.org/safety%5Ffacts/state%5Flaws/measure%5Fup.htm

The president of the state chapter of Mothers Against Drunk Driving
called Rhode Island’s DWI laws “an embarrassment,” and blamed the state
legislature for failing to take stronger action. Bernard Frezza,
legislative liaison for the state Department of Transportation, said,
“There’s definitely room for improvement. We’ve tried to move in the same
direction” as the insurance institute recommends.

Rhode Island had the nation’s highest proportion of alcohol-related
fatalities in 2003, as well as in 2002 and 2001.

Drunk Drivers Face Stiff Penalties for Refusing
Test
By Sam Bari

Governor Donald L. Carcieri last week signed legislation that
increases the penalties for those who refuse to submit to a Breathalyzer
test when they are stopped for suspicion of driving under the influence
of alcohol.

Although the DUI legislation includes driving under the influence of
both alcohol and drugs, the Breathalyzer can only test for the
consumption of alcohol.

The new law proposed last November by the governor and state Attorney
General Patrick Lynch, increases penalties for Breathalyzer refusal.
Carcieri said that the new law eliminated a major loophole in the state’s
drunk driving laws. The law went into effect July 5, as soon as the
governor signed the bill.

“Last November, Attorney General Lynch and I announced that we were
jointly submitting legislation that would help put an end to Rhode
Island’s shameful distinction as leading the nation in the percentage of
DUI-refusal cases and the percentage of total highway deaths caused by
drunken drivers,” Carcieri said.

“The General Assembly heard our message and did the right thing in
passing legislation that gets tough on those who refuse Breathalyzer
tests,” he added.

“For too long, we have allowed dangerous drivers to escape more
serious penalties when they refuse to submit to Breathalyzer tests. They
will no longer be able to exploit the system,” the governor continued.
“If you refuse a Breathalyzer test, you will face the consequences. In
Rhode Island, we have zero tolerance for drunk drivers,” he said.

Carcieri was joined at the billsigning ceremony by Attorney General
Lynch, the sponsors of the legislation, state Senator Joseph Polisena of
Johnston and Representative J. Patrick O’Neill of Pawtucket, and
advocates for tougher drunk driving laws, including Mothers Against Drunk
Driving.

Before the new law took effect, the penalties for refusing a
Breathalyzer test were significantly less than the penalties for DUI.
Under the new law, the penalties for DUI refusal increase
significantly.

First-time offenders will now have their driver’s license suspended
for six months to one year for Breathalyzer refusal. Under the old law, a
driver’s license was suspended from three months to six months. The
fines, community service requirements, and mandatory participation in a
drunken-driving course remain unchanged.

For second offenses committed within a five-year period, offenders
will be charged with a misdemeanor, face a sentence of up to six months
in prison, and have their driver’s license suspended for one to two
years. They must also pay a fine of $600 to $1,000, and perform 60 to 100
hours of community service. Under the old law, the offense was considered
a violation. A prison sentence was not imposed, the fine was $300 to
$500, and community service was not required. The suspension of a
driver’s license for one to two years and the requirements of alcohol
and/or drug treatment remain unchanged.

For third-time offenders within a five-year period, suspects are
charged with a misdemeanor, face a sentence of up to one year in prison,
and have their driver’s licenses suspended for two to five years. They
must pay an $800 to $1,000 fine and perform a minimum of 100 hours of
community service. Under the old law, the offense was considered a
violation and not a misdemeanor, which eliminated a prison sentence. The
fine was $400 to $500, and community service was not imposed. The
requirements for alcohol and/or drug treatment remain unchanged.

“It ups the anti,” said Sgt. Jack Dube, a 26-year veteran of the
Jamestown Police Department. “There’s a big difference between losing a
license for three to six months, and losing it for a year for a first
offense,” he said.

“It’ll make people think twice before they get behind the wheel after
having a few,” he added. “I definitely think it’s a good

thing,” said Police Lt. William Donovan. “Refusing to take the test
used to mean no criminal offense on record for second and third
offenders. Now, refusal is a misdemeanor, and the penalties are much
stiffer. It’s no longer a civil matter. DUI is a serious offense, and
should be treated as such. The law moves us in the direction of the rest
of the country.”

Source: http://www.jamestownpress.com/

Breath Test Refusals Rouse Law Reform

Westerly, RI-In the state of Rhode Island, drivers refuse to take Breathalyzer tests more than in any other state in the country. While the national average is around 25%, Rhode Island’s statistic is at 85% according to a report from the National Highway Traffic Safety Administration (NHTSA).

A clear explanation for Rhode Island’s history with this ranking comes from the state’s laws: refusing the Breathalyzer test does not lead to a criminal offense or time in prison. Instead DUI offenders lose their licenses and pay heavy fines because the refusal is treated as a lighter violation of the law.

In Rhode Island, a person is double-charged when refusing the Breathalyzer because they receive charges for both the DUI and the test refusal. Police officers then use visual signs of intoxication to convict a person of DWI. However judges often dismiss at least one of the two charges when officer observation is the only evidence.

Several county police chiefs concur that the consequences of Breathalyzer test refusal need to carry more weight. Under the current state laws, the first three offenses bring fines of $200-500 and a suspended license,
with the penalties increasing for each offense after the first. The first offense includes 10-60 hours of community service, and the second includes an alcohol treatment program.

The first-time DWI brings very similar penalties as the first offense for refusal of a Breathalyzer test, however the second offense carries a much heavier fine-maximum $1,000-and 10 days in jail. The third offense brings a maximum fine of $5,000 plus one year in jail.

While police officers may suggest that stricter penalties for test refusal could solve the problem, Michael Cozzolino, a local defense attorney, believes that stricter penalties promote people to incriminate themselves. Cozzolino tells his clients to avoid taking the Breathalyzer test.

Cozzolino thinks that the Connecticut laws seem to create smoother results. In Connecticut, which borders Rhode Island, the DUI laws make taking the Breathalyzer test more appealing than refusing it. First-time offenders can be freed of their DWI charge if they attend a special pretrial education program. An offender is not given the option of the educational workshop if they have been charged with refusing the test.

While the National Highway Traffic Safety Administration (NHTSA) offers advice regarding lowering the rate of refusal, some is obvious (make penalties more severe) and some is equivocal (interviewing bartenders). By comparing and contrasting the results in different states, Rhode Island police chiefs and citizens hope to lower the state’s continual issue with Breathalyzer test refusal.

August, 2005

Related Links:

• Rhode Island DWI Attorneys
• Rhode Island Auto Insurance

Breathalyzer Issue has Political Hangover

Jim Baron, Journal Register News Service 10/03/2006

PROVIDENCE – A paperwork snafu that caused the Traffic Tribunal to
dismiss several breathalyzer refusal cases has escalated into a war of
words between Speaker William Murphy (D- Dist. 26, West Warwick,
Coventry, Warwick) and Rep. Robert Flaherty (D-Dist. 23, Warwick), a
possible leadership challenger.

About 10 cases where suspected drunk drivers refused a breathalyzer
test, including at least one that was a client of Flaherty, who is a
lawyer in private practice, were dismissed after it was learned some
police departments allegedly gave them the wrong information about the
consequences of declining the test.

The General Assembly passed a bill significantly toughening the
penalties for refusing a chemical test last June in the closing days of
its 2006 session. As part of the 2007 budget, it also added a provision
for a $200 assessment for each offense to go to the Department of
Health.

The Attorney General’s office, in anticipation of the toughened
penalties being signed into law, drafted a form for police officers to
use when dealing with breathalyzer test refusers that detailed the
penalties for not taking the test, according to Assistant Attorney
General Jay Sullivan. When the budget passed a short time later with the
$200 assessment, the Attorney General’s office distributed yet another
new form to police departments.

But some departments apparently did not get that last update, because
they gave some suspects the form that did not contain information about
the $200 assessment.

Because those people were not fully warned of the penalties for
refusing, their cases were dismissed. Those dismissals, according to
District Court Chief Judge Albert DiRobbio, are currently being appealed
to a panel of three Traffic Tribunal judges. That could be followed by
further appeals to the District Court and, ultimately, the state Supreme
Court.

Legislative attempts to toughen penalties for breathalyzer refusal
were defeated in the General Assembly for several years running. When
groups such as Mothers Against Drunk Driving began to protest vocally,
Murphy blamed the death of the bill year after year on Flaherty, who was
chairman of the Judiciary Committee where the bills were heard. Flaherty
pointed the finger back at Murphy, saying it is the speaker, not
committee chairman, who determines whether bills live or die.

Before the start of the session, Flaherty, who made it clear he would
participate in, or perhaps even lead, an attempt to topple Murphy as
speaker, was replaced as chairman by Rep. Donald Lally, on Murphy’s
orders.

Murphy then became vocal about moving the breathalyzer bill out of
committee. In a letter to Murphy dated Sept. 28, Flaherty said, “when you
were a member of Judiciary, you did not support this increase of
penalties for refusal and … your recent support of the legislation was
generated by media criticism of you. Your new-found religion has a
practical origin.”

Flaherty asserts because the 2007 budget, which lists the old
penalties for breathalyzer refusal, was signed after the bill sponsored
by Pawtucket Rep. J. Patrick O’Neill, which toughened the sanctions, it
effectively repeals the O’Neill law.

“In other words,” Flaherty wrote to Murphy, “you wiped out your own
reform.” That is not the case, Murphy and House staffers say.

House legal counsel William Guglietta said the General Assembly works
under a system of “statutory construction,” whereby the Law Revision
Office can reconcile two separate bills on the same subject “and if they
are not in conflict, they can draw legislative intent” from the wording
of the bills and synthesize them.

Murphy told Flaherty in a Sept. 26 letter that, “as a lawyer and
legislator for 16 years, one would suppose that you would understand the
manner in which bills are enacted … It is a well-founded principle that
two statutes, when not in conflict, can be read and enforced together. It
is obvious that you wish to engage in political grandstanding as opposed
to dealing with the facts of this matter.”

Source:

Tuesday, February 08, 2005

DAVE HOGAN

SALEM — Closing a longtime loophole in drunken-driving enforcement,
state officials have started taking away Oregonians’ drivers licenses if
their licenses are suspended in other states for failing a sobriety test
or refusing to take one.

Oregon’s Driver and Motor Vehicle Services suspended 15 drivers’
licenses last week, the first week of the new enforcement.

Dozens of times a month, other states take away Oregonians’ licenses
because they’re suspected of driving drunk and they refuse to take a
sobriety test, or fail one. But until Jan. 31, the DMV didn’t enforce the
out-of-state suspensions unless they were court-ordered.

After a federal audit called the lack of enforcement a problem, state
officials began to make the computer coding changes and other
arrangements needed to enforce out-of-state suspensions.

The new enforcement kicks in when the DMV is notified that another
state has suspended an Oregonian’s license to drive. The driver loses his
or her license until the out-of-state suspension has ended and they’ve
cleared requirements for reinstatement, including fees.

“We are imposing an indefinite suspension,” said Mary Garcia, the
DMV’s driver control program coordinator. “These people will be suspended
until they can provide clearance from the other state.”

The change eliminates a longtime inconsistency in licensing.

Drivers who fail sobriety tests in Oregon lose their licenses for 90
days for the first failure, and for a year for a second failure.

Drivers who refuse a sobriety test in Oregon automatically lose their
license for a year, and a refusal in a second case results in a
three-year suspension. In 2003, more than 12,000 Oregon drivers had their
licenses suspended for refusing a test.

Since 1983, state law also has allowed the DMV to take away the
licenses of Oregon drivers who refuse sobriety tests in other states.
Most of the out-of-state suspensions occur in Washington.

But if their out-of-state suspension went no further than a diversion
program and did not result in a criminal conviction, Oregon drivers were
able to keep driving at home. Until now.

The change can be traced to a Federal Motor Carrier Safety
Administration review of Oregon’s commercial driver licensing in 2001.
The DMV then told the federal agency it would begin enforcing
out-of-state suspensions in early 2004.

But DMV administrator Lorna Youngs later said the plan would be
delayed until this year because of other information technology projects
“and our limited resources.”