What factor is most detirminative in a DUI arrest?
June 24, 2008 | Leave a Comment
When I asked that question to friends and family answers varied from “what kind of beverage you had consumed” to the more “what area of town you were in” and “what kind of car do you drive”? None of these are the answer , surprisingly neither is “whether you were intoxicated or not”. The accurate answer is the individual differences of the arresting officer. This blog has often stated that DUI is the only crime that you can be convicted solely on the opinion of the arresting officer. Lawrence Taylor, a prominent DUI attorney in
For Mr. Taylor’s full post please follow the link.
http://www.duiblog.com/2008/06/12/the-unknown-variable-2/
What happens to your license because of a Memphis DUI ?
June 4, 2008 | Leave a Comment
Lawrence Taylor is a Claifornia attorney who writes about issues of Consitutional Law as it relates to DUI. This article is posted in full for our readers because it raises some important issues regarding your rights if you have been stopped for a DUI. A lawyer can make sure that your property right in your dirver’s license is properly protected if it has been confiscated, suspended or revoked, a DUI lawyer can also help you to get a restricted or special license if you have a special need to drive.
Here is Mr. Taylor’s Article reprinted in full, and the link below.
Due Process and Automatic License Suspensions
Posted by Lawrence Taylor on June 3rd, 2008
So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .12%, the officer confiscated your driver’s license and gave you a piece of paper that said it was immediately suspended.
What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about due process: Can they punish me before giving me a chance to defend myself?
Good questions.
The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) drunk driving who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you. Viewed another way, the officer in a drunk driving case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America?
Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called “APS” laws (“administrative per se”, referring to the “per se” crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a “privilege”, not a “right” — and since the license holder had no rights, the state could do what it wanted.
Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.
The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced all 50 states into adopting APS suspensions — or else no highway funds
Do these APS hearings in DUI cases provide due process? In other words, how fair are they?
Let’s take California’s APS hearings. They are conducted by a “hearing officer”. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s, well, the same guy.
That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection!
Not too surprisingly, the DMV wins about 96% of these DUI hearings.
That’s called “due process” in a drunk driving case.
http://www.duiblog.com/2008/06/03/due-process-and-automatic-license-suspensions/
Receive a conviction for DUI in Memphis, TN and get 48 hours in jail!
June 2, 2008 | Leave a Comment
The stakes just got higher for those who are convicted of a DUI in Memphis, or anywhere else in Tennessee. Under a new law that was signed yesterday by Tennessee Governor Phil Bredesen all individuals who are convicted of drinking and driving will be required to spend 48 hours in jail.
Under the old law only those who were under 21 years of age were required to stay in jail over 24 hours. However, the new law will effect everyone.
This means that it is more important than ever to retain a lawyer that is experienced in handling dui cases. The difference between having a Memphis dui lawyer and not having one could mean two days in jail and tens of thousands of dollars in increased insurance and limited job prospects
Memphis DUI Lawyers Protect Your Rights
May 29, 2008 | Leave a Comment
In April Memphis law enforcement participated in a massive cooperative law enforcement action called “Operation Sudden Impact”. Targeted at terrorism , in
In order to convict for a DUI the government must prove beyond a reasonable doubt that the driver is driving above the legal. Breathalyzer tests should not make a DUI charge a DUI conviction. Tests can be inaccurate, flawed, and administered improperly. Officers may have acted improperly in proceeding with an investigation into your case. A lawyer can help insure that your rights are fully protected and that you have a skilled advocate to tell your side of the story. Our Memphis DUI lawyers understand what all of the testing methods are, and most importantly what they are not.
Operating a Vehicle Under the Influence.
May 12, 2008 | Leave a Comment
Jeff Brown gives us the story of his own DUI conviction for Operating a Vehicle Under the Influnce. In this video Jeff tells how we was arrested and convicted for simply pushing a bike while drinking. Although the video is not too short it is interesting.
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Jeff’s story brings up a few good points that relate to Memphis DUI’s and Mississippi DUI’s. Under the laws of both Tennessee and Mississippi you can be found guilty of DUI for operating almost any type of vehicle. So just remember to not jump on any close by golf carts, lawn mowers or motorized childrens toys when you are ready to head home after an evening at the local pub!
And as always for all of your Mississippi or Memphis DUI defense questions call our dui lawyers at 901-754-1340.
Can I Represent Myself or do I need a Memphis DUI Lawyer?
March 12, 2008 | Leave a Comment
You can represent yourself - although it is not a good idea. “Drunk driving” is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field - no more than a family doctor could help with brain surgery. A qualified DUI attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
Top 20 List of What Memphis Police Look for In a Drunk Driver
March 12, 2008 | Leave a Comment
What Do Memphis Police Officers Look for When Searching for Drunk Drivers?
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated here in Memphis. The list is based upon research conducted by the National Highway Traffic Administration:
Turning with a wide radius
Straddling center of lane marker
“Appearing to be drunk”
Almost striking object or vehicle
Weaving
Driving on other than designated highway
Swerving
Speed more than 10 mph below limit
Stopping without cause in traffic lane
Following too closely
Drifting
Tires on center or lane marker
Braking erratically
Driving into opposing or crossing traffic
Signalling inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately (other than in lane)
Turning abruptly or illegally
Accelerating or decelerating rapidly
Headlights off
***Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.
If you have received a dui in Memphis and need the help of a Memphis DUI lawyer call our office today.
This list courtesty of duicenter.com
DUI Hypocrasy?
March 5, 2008 | Leave a Comment
Memphis drivers aren’t the only ones receiving DUI’s these days. The following article is straight from the ap in Utah and shows where the former head of the Utah Highway Patrol pleaded guilty to DUI. Rembember, highway patrol members are the same individuals who are supposedly “experts” at knowing who is drunk and who isn’t drunk. This shows you that you shouldn’t necessarily trust the testimony of arresting officers.
WEST JORDAN, Utah (AP) - The former head of Utah Highway Patrol’s DUI unit has pleaded guilty to alcohol-related reckless driving.
Fred Swain crashed his police cruiser into a concrete barrier in June 2006. A breath test at the time revealed his blood-alcohol level to be 0.11 - in excess of the state’s legal limit of 0.08.
Swain’s plea to the class B misdemeanor charge was entered in 3rd District Court on Monday. It was actually his second guilty plea - he had already entered one in Draper’s justice court, but was appealing that conviction. The city prosecutor says he doesn’t know why Swain ended the appeal process.
How Good Are Cops at Really Detecting a Memphis DUI?
February 28, 2008 | Leave a Comment
The drunk driving case rests heavily upon the subjective opinions of the arresting officer — the abilities of that officer to correctly assess DUI symptoms of intoxication: observations of driving, personal symptoms (slurred speech, flushed face, etc.), answers to questions, performance on field sobriety tests. It is his DUI report (and his opinion in that report) which will largely determine what, if any, criminal charges will be filed by the prosecutor. It is the officer’s decision which will or will not result in a suspension of the driver’s license, his testimony at trial which will largely decide the guilt or innocence of the person he arrests.
Just how expert is the average police officer at judging levels of intoxication in a DUI case?
To answer this question, researchers at Rutger University’s Alcohol Behavior Research Laboratory conducted a series of experiments. For purposes of comparison with officers, two groups of non-police witnesses were first tested. In one, 49 lay social drinkers sat in a room as various subjects were brought in one at a time for observation and questioning. Each subject had either consumed varying amounts of alcohol or had consumed nothing; each had been given tests for blood-alcohol levels. Each in turn answered questions from the lay witnesses until all were finished, then got up and left. Each of the 49 witnesses was then asked to judge each subject’s state of sobriety or intoxication. The researchers’ conclusion: “The assumption that social drinkers would prove to be accurate judges…was not confirmed.”
In the second group, 12 bartenders were tested in the setting of a large cocktail lounge. Again, the researchers found that “the bartenders correctly rated a target in only one of four instances”.
The researchers then turned to 30 experienced DUI officers from various New Jersey law enforcement agencies. Separated into two groups, the first group of 15 officers were tested under laboratory conditions similar to those in the experiment involving lay social drinkers. The second group of 15 were tested under circumstances commonly encountered in a drunk driving traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of DUI field sobriety tests. Results?
When police observers in the laboratory conditions were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found…. Officers in the arrest analogue were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.
The scientists concluded that “the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders and police officers — correctly judged targets’ levels of intoxication only 25 percent of the time.” Langenbrucher and Nathan, “Psychology, Public Policy and the Evidence for Alcohol Intoxication”, American Psychologist 1070 (Sept. 1983).
Source: duiblog.com
Is There a Double Standard for Cops When They Receive a DUI?
February 28, 2008 | Leave a Comment
Just the most recent example of the double standard applied when cops, prosecutors or judges are busted by honest officers for drunk driving:
Officer Found Not Guilty of DUI Charge
Northborough, MA. Feb. 19 - A judge has cleared a town police officer of drunken driving after throwing out his blood alcohol reading because it was taken at the hospital without his consent.Earlier this month James Scesny, 38, of Clinton, was found not guilty of driving under the influence of alcohol and not responsible for a charge of marked lanes violation by Fitchburg District Court Judge Andrew Mandell.
The charges stemmed from a May 2007 accident in Clinton in which Scesny and his girlfriend were injured when the car he was driving struck a telephone pole.
The case was headed toward a jury trial, but at a Feb. 1 hearing Scesny’s attorney, Michael Erlich, requested a bench trial. Two weeks earlier, a Clinton District Court judge allowed Erlich’s motion to keep the blood alcohol test out of the trial.
Two blood samples taken by Clinton Hospital staff were tested by the Massachusetts State Police Crime Lab and both found a 0.168 blood alcohol level, according to a crime lab document in the court file.
Erlich argued that police took the samples without his client’s permission, and that authorities did not follow proper chain of custody protocol before sending them samples to the crime lab.
Erlich said his client refused to be tested when asked by three Clinton Police officers at the hospital.
So the drunk driving case was thrown out because…there was no breath test? Hmmm…so what do they do in roughly 25% of DUI arrests where the suspect refuses to take a breath test? Just let him go? Oh, right, they charge him with drunk driving anyway - and prosecute based on evidence such as witnesses, driving symptoms (weaving, accidents), personal symptoms (slurred speed, bloodshot eyes), field sobriety tests, incriminating statements and the arresting officer’s opinion….Unless the guy’s a cop.
source: duiblog.com
