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FAQs

1)  What is a DUI?

In Tennessee, an individual may not drive or be in control of a vehicle if the blood alcohol content is .08 or more. It takes very little to achieve a blood-alcohol level in violation of law.

2)  Should I take the breath test?

If you have had no alcohol, the test will prove you have not exceeded the state limits. If you question how much alcohol you have consumed, the breath test may prove disappointing for you. Because of the accuracy of the machines, they are presumed to be accurate and .08 blood alcohol level will get you arrested. You may choose not to blow. Understand that failing to take the breath test as requested by an officer with probable cause, may suspend your license for a period of one year.

3)  Can I get a restricted license?

A restricted license is available to first offenders ONLY. If you have a DUI conviction on your record and plead to a second first-offense DUI, you are not eligible for a restricted license during your year of probation but the 2nd year of suspension is eligible for a restricted license. Failure to take the breathalyzer test may suspend your license for one year but one is eligible for a restricted license. Third and subsequent DUI convictions are not eligible for a restricted license of any kind.

4)  Should I take a breathalyzer test?

You should know that if you fail to take a breathalyzer test after the police request one, Tennessee law mandates that your license will be suspended, regardless of whether you are ultimately found guilty of the DUI. However, the breathalyzer is an investigative tool that law enforcement uses to try to gain evidence from you that you have committed a crime. If you fail a breathalyzer test, it provides law enforcement with a potentially strong piece of evidence as to your guilt. If you have not been drinking, taking the test is often the easiest way to show the police that you are not intoxicated. However, machines are not foolproof, and a bad result on a breathalyzer test can sometimes make it very difficult to obtain a good result in court.

5)  What are DUI penalties?

The following penalties apply to all levels of DUI offenses as on July 1st, 2013:
1st Offense Minimum Requirements: 11/29 in jail, suspended, all but 48 hours, 11 months/29 days probation, 24 hours of Court approved Community Service Work, $350.00 fine, alcohol safety school, various other probation responsibilities, loss of license for one year and court costs.
2nd Offense: 11/29 in jail, suspended, all but 45 days, day-for-day (maybe eligible for work release or a 28 day in-patient substance abuse treatment program that counts as jail time), 11 months/29 days probation, $600.00 fine, alcohol safety school with extensive probation officer responsibilities, loss of license for two years and court costs.
3rd Offense: 11/29 in jail, suspended, all but 120 days (no work release), 11 months/29 days probation, $1100.00 fine, alcohol safety school, extensive probation responsibilities, loss of license for three years and court costs.
4th Offense: AN “E” FELONY WITH ANTICIPATED JAIL TIME.

6)  Where do I get an Interlock device?

You must get an Interlock device from a State approved provider. Here is a link to a list of State approved providers in the Tennessee: http://www.tn.gov/safety/FinancialResponsibility/IIDInstall.shtml

7)  Do I need an attorney even if I am innocent?

Yes. The State or Government, as represented by prosecutors and police officers and other law enforcement agencies, are generally in the business of arresting people and obtaining convictions for what they feel to be criminal offenses. Despite what they might say during an interrogation or during the court process, they are generally not in the business of helping you if you are accused of a crime. Some police officers even have special training on "obtaining confessions” as well as many other sophisticated interrogation techniques designed to get you to continue speaking with them and, eventually, make an incriminating statement. Regardless of what they say, they most likely are not interested in your side of the story, but instead think that a statement from you will help them convict you. Sometimes police have even told suspects that a lawyer is unnecessary if someone is innocent, in hopes that the suspect would give them enough information to make a case against the suspect. Always ask to speak to a lawyer before speaking to police.

8)  Can the police just stop me for no reason?

Under the law, no they cannot. The Fourth Amendment to the United States Constitution and its corollary in the Tennessee Constitution forbid unreasonable searches and seizures. Generally speaking, there are three levels of interaction between police and the public: (1) a consensual encounter, (2) a brief investigative stop, or (3) a custodial arrest. A consensual encounter is any interaction in which a citizen consents to the interaction, like a casual conversation on the street between an officer and a member of the public. For the police to conduct an investigative stop, the police officer must have a suspicion that a crime was or is about to be committed, and that officer's belief must be reasonable. During this investigative stop, if the police also have a reasonable suspicion that the person is armed, the police may "pat-down" the person's clothing to make sure the person is unarmed. Police are not allowed to conduct a full-scale search during this stop. For a full-scale search or arrest, police must either have a warrant or probable cause to believe that a crime was committed and that the suspect committed it.

9)  Are the police allowed to search my car after they give me a citation?

Generally they are not. A citation is an alternative to a custodial arrest. Technically, when a person is given a citation, they are not under custodial arrest, so the search that usually goes along with an arrest is not allowed.

10)  The police did not read me my rights. Shouldn't my case be dismissed?

Miranda v. Arizona is a famous case in which the United States Supreme Court held that before a statement from a defendant is admissible in court against the defendant, (1) the police must have informed the suspect that he has a right to a lawyer and to remain silent, or not answer any questions from law enforcement, and (2) that the defendant must have understood that he/she had these rights and intelligently, knowingly and voluntarily waived those rights. However, this only applies to custodial interrogation. In other words, Miranda only applies to those suspects who are in the physical custody of law enforcement and who are being questioned by law enforcement. The Constitution and the warnings of Miranda only protect a citizen from statement made to the State or Government actors. It does not protect statements made to private citizens, and it does not apply to statements that are not made in response to questioning from law enforcement. Even if the police violate Miranda, the violation usually only invalidates the statement itself or any fruits thereof, not other evidence that the police obtained independently of the statement. A statement is only one piece of evidence that the State or Government may use against a defendant in a criminal case and the exclusion of that statement does not mean that the State or Government cannot proceed with other evidence in an effort to convict the defendant.

11)  Do I have to talk to the police?

No, that is what the Miranda warnings tell you. You do not have to speak with the police for any reason on any occasion whether you are the suspect of a crime, or not. If you are a suspect and you have been arrested, or you are being detained without the ability to leave, then law enforcement must read you your Miranda warnings so that you can determine whether you wish to speak with them, or not. You do not have to do so and you should not speak with them if you are under arrest for an offense.

12)  Can the police search my house?

Generally speaking, the police may not search your house/residence without a warrant to search which has been signed by a judge who has reviewed the facts that the police have shown to the judge as to why they say there is probable cause that criminal activity is going on at that location. However, there are certain reasons that the police may conduct a search without a warrant. The most common one is consent of a lawful resident who is of age to grant consent. Any person who lives at a residence may give the police consent to search the premises. Another common reason is that there is evidence of a crime in plain sight, or often plain smell. If a police officer sees or smells something that they know to be illegal, like narcotics on a table in the open doorway, or the smell of marijuana coming from the residence, the police may search the area where they saw or smelled the contraband without a warrant. There are other exceptions to the requirement for a warrant, but in most circumstances, the police may not search your property without a warrant and you are not required to give them consent if you do not want them to search. Further, you may revoke, or end the consent to search if you wish to do so. You should be aware that the police will take a consent to search to mean consent to search anywhere they feel like throughout the premises, not simply the rooms you thought they would look into.

13)  The victim wants to "drop the charges." Will my case be dismissed?

Prosecutors handle thousands of cases each year, and it is not an unusual situation that particular victims want to "drop the charges" for a variety of reasons. While it is true that lots of cases are dismissed because witnesses fail to appear, it is also possible that many cases are prosecuted even if the victim fails to appear in court through the use of other evidence. If a victim tells a prosecutor that he/she fabricated the charges, the prosecutor might simply not believe the victim and try to proceed anyway. If a victim becomes uncooperative, a prosecutor may try to prosecute the suspect without the help of the victim. Many time, particularly in domestic violence cases, prosecutors believe that victims don't know what's good for them, and they will try to prosecute cases despite the victim's wishes to the contrary because they feel it is their duty to “protect” a victim even if that victim does not want their assistance. Often, cases are “dropped” if the victim is not cooperative, or wants the case to end, but that is not always the outcome.

14)  Can I tell the victims not to come to court?

No, you cannot tell victims or other witnesses not to come to court. That may result in additional criminal charges for tampering with a witness which is a felony charge. If a witness is subpoenaed to come to court, he/she should comply with the subpoena. If he/she does not wish to come to court, then they should contact the party who issued the subpoena, usually the prosecutor, to speak with them about coming to court. Further, in assault cases and domestic assaults cases, it is often a condition of bond that the defendant not contact the victim of the offense and efforts to convince a victim not to come to court could lead to a revocation of bond in addition to potential felony charges for improperly influencing a witness.

15)  Can I still have a firearm after this is over?

If you plead guilty, or are found guilty by a judge or jury, of a felony offense, or of a domestic assault which is a misdemeanor offense, you are no longer lawfully allowed to own or possess firearms. If you are found, after such a conviction, in possession of a firearm, or even being in a residence where firearms are kept, you may be subjecting yourself to extremely serious State and/or Federal penalties that often require jail time.

16)  Is there a way that I can get a new judge?

In most circumstances, you cannot change the judge that you are randomly assigned by your arrest date in Davidson County.

17)  What do I wear to court?

It is a common question from criminal defense client’s what they should wear to court. I tell all client’s that it is better to be “over-dressed” than “under-dressed” and suggest they wear something along the lines of what would be considered business casual dress or nicer. For most court appearances, I advise men to wear a collared shirt, slacks (not jeans) and leather shoes. A coat and/or tie is good but not necessary for most court appearances. There are some court appearances where I do recommend coat and tie. I advise the equivalent of this dress for women – conservative skirt or pants, non-athletic shoes and conservative top. It is also important to note that most courts have dress codes.

18)  Where is the courthouse?

The courthouse for State court offenses in Nashville is the A.A. Birch Building. It is located at 408 Second Avenue North, Nashville, TN 37201. All of the criminal dockets in Davidson County, both general sessions and criminal court, are located in this building.

19)  If I am convicted of a crime, will anyone know that I have a conviction on my record?

Although a conviction such as a drug crime, DUI, sex crime, white collar crime or violent crime is public record and may be reviewed by the general public including potential employers, schools that you may apply to, or financial institutions where you apply for a loan, you may be able to expunge a conviction or arrest depending on the nature of the crime committed.

20)  Can I get a conviction off of my record?

In some circumstances, yes, but you must make sure that the possibility for an expungement is part of the agreement you reach on a plea deal. In most circumstances, you will not be able to come back at a later time and get the conviction expunged if you did not have that understanding in place at the time the plea was reached. If you have never been convicted of any crime, either misdemeanor or felony, since you turned the age of 18, you may be eligible to have a C, D, or E felony, or an A misdemeanor expunged off your record after you have successfully completed your term of probation. There are also other forms of diversion such as under advisement pleas where an agreement is reached, you perform the required tasks and the case will then be dismissed. Most cases that have been dismissed, retired, or the State has taken a nolle prosequi, can later be expunged from your record.

21)  What is the difference between a misdemeanor and a felony?

A misdemeanor offense is less severe than a felony, but can still carry a sentence of up to one year in county jail. Certain misdemeanors like DUI have mandatory jail sentences if you are convicted. On the other hand, a felony is a very serious crime that carries a maximum sentence of over one year in a privately owned prison like CCA or the Tennessee Department of Correction. In most situations, misdemeanors do not have required escalating penalties the more times that you are convicted, though DUIs do have such a requirement. Felonies do have required increasing punishment the more convictions that you have.

22)  Can I just have my attorney represent me, so I don't have to show up?

In most situations, no, you must be present in court when you have a scheduled court appearance. There are stages of the criminal process where you do not need to appear. However it is very important to check with your attorney before you decide to be absent. If you are not able to appear you must contact your attorney and inform them of your situation. Always appear in court unless instructed by the judge, or your lawyer, not to appear. If you are unable to be in court because of an emergency, inform your lawyer, your bondsman, and provide proof, such as a doctor’s note, to demonstrate to the court that you truly have an emergency and cannot attend. Failure to appear in court can result in the forfeiture of your bond and possible incarceration.

23)  Can I talk to people about my case?

You may talk to other people about the details of your case, but only your lawyer has legal privilege and confidentiality with you. That means that your lawyer is ethically bound to keep your communication and information confidential from everyone unless you authorize them to release it. Further, unlike almost any other person you might speak to about your case, your lawyer has privilege with you, which means that he/she cannot be made to testify about the information that you give them. If you speak with your friends, your family, your co-workers, or other people and you make statements to them that incriminate you in a crime, they can be forced to testify in court about what you told them.

24)  Where are the jails in Davidson County?

There are four main facilities in Davidson County that are run by the Davidson County Sheriff’s Department: The Criminal Justice Center and the Hill Detention Center which are both located downtown on Second Avenue North. The Criminal Justice Center is in the same building where the Commissioner is located, the Police Headquarters, where people are booked when they are arrested and where most male defendants spend at least a couple of days before they are classified. It is also the permanent facility for males who are classified as a high risk and/or where juvenile offenders that have been transferred to adult court are housed. The Hill Detention Center is a medium security facility that is also located downtown and houses many males inmates in the Sheriff’s custody. The Criminal Detention Center and the Offender Re-entry Center are located on Harding Place behind the West Police Precinct. The Criminal Detention Center houses low risk male inmates as well as all of the female inmates that are in the Sheriff’s custody. The Offender Re-entry Center is a facility near the CDC at Harding Place that houses people in the work release program and people serving periodic confinement, which means, typically, they are only serving their jail time on weekends.

25)  What is the sex offender registry?

If you have been convicted of certain felony offenses like aggravated rape, rape, aggravated sexual battery, sexual battery, statutory rape by an authority figure, sexual battery by an authority figure, statutory rape, rape of a child and others, just will required to register with the state and local law enforcement. You will be required to check in with local law enforcement in person four times per year, register any changes of address, any changes in your vehicle, you will usually be restricted from unsupervised use of a computer, you will not be allowed to live within a certain distance of a school, daycare center or after care center, and you may not be able to live in the same home with any minor children, as well as many other restrictions. You should know everything there is to know about the requirements of the sex offender registry before you plead to an offense that requires you to register because, not only will failure to comply with the requirements be a violation of your probation, if you received probation, failure to comply with the requirements will be a separate felony offense. Most offenses require lifetime supervision, meaning, among other things, that you will have to remain on the registry even after your jail time and/or probation for the initial offense has ended.