Can you have a criminal or dui conviction taken off your record in TN?
June 2, 2008 | Leave a Comment
Fellow Memphis criminal and DUI attorney Patrick Stegall had a great blog post about this subject that I wanted to share with all of my readers.
Diversion, expungment, and dismissal–can I get this taken off my record?
I frequently get asked this question. If you’ve already been through the justice system and your case is disposed of, you’re too late. Expungment of a conviction is something your attorney needs to talk to you about on the front end, because that’s the only time you can get it. You can’t just go and ask for it later on. You have to set it all up beforehand. What does it take, then, to get a conviction removed from your record? In Tennessee, it is a process called diversion. There are two types, pre-trial and judicial. I’ll discuss both here.
Pre-trial diversion is the quicker, easier way to go, but the requirements are tougher and a client can do it only after they’ve been indicted. An indictment is a formal notice of the charge issued by the grand jury. Here in Memphis, it takes several months after arrest to get indicted in State court. See, before being indicted a person handles their case in General Sessions. One of two things will happen when the case is in Sessions: it will either be disposed of (guilty plea, dismissal, etc.) or it will move up to Criminal Court. On the way to Criminal Court, the case must pass through the grand jury. If the grand jury finds there is enough evidence, they will indict the person. So only after a client’s been indicted can I look into pre-trial diversion. Pre-trial diversion is great if you can get it. What it is is a suspension of the prosecution against the defendant. It’s also known as attorney general diversion because it is the attorney general (prosecutor) who will suspend the case. They basically will agree not to do anything on it for up to two years, and if at the end of that time the defendant’s done everything they need to do and has stayed out of trouble, the case will be dismissed. Whether the client gets it is completely up to the prosecutor. What’s great is that the client doesn’t have to enter a guilty plea. This is especially beneficial to immigrant clients who are trying to get citizenship or residency, because a guilty plea of any kind, even if it’s later removed, would be bad for them. I don’t know immigration law, but I do know that to ICE a criminal conviction is like the death penalty. The drawback to pre-trial diversion is that you have to wait to be indicted. Like I said, here in Memphis that’s going to take several months. You may want to dispose of your case when it first gets into General Sessions, but to do that you have to enter a guilty plea. Also, the case can be suspended only for up to two years, which means the case for which you’ve been charged must have a maximum two-year sentence. Many diversion-eligible charges fall outside of this. For instance, a person eligible for diversion indicted on a class C felony in Tennessee is looking at 3-6 years. They would not qualify for pre-trial diversion.
The other type of diversion is called judicial diversion. This is where a client enters a guilty plea and begins their probation, but the judge does not enter a judgment of guilt. It’s a deferral. Clients can enter judicial diversion at any time, whether in General Sessions or Criminal Court, and the deferment can last up to six years. At the end of their probation, the client can request to have the record of their conviction expunged. All public records of the conviction are destroyed, although the court keeps a non-public record for the sole purpose of preventing the individual from qualifying again.
How does one qualify for diversion in Tennessee? The biggest thing is that a client cannot have a prior felony or Class A misdemeanor conviction, and cannot have gone on diversion before. As part of the application process, the client must go through a Tennessee Bureau of Investigation background check. This check will tell if they qualify. Also, the charge for which they are applying for diversion cannot be a Class A or B felony, a sex offense, a DUI, or Driving with a Suspended, Canceled, or Revoked License. That means if you are convicted of one of those offenses, it will stay on your record forever.
An important thing to remember about diversion is that you qualify for it only once. So if you’re facing a criminal charge and you qualify, might as well use it while you’ve got it. Notice that any conviction below a class A misdemeanor does not disqualify one from future diversion. So if a client is facing, say, a reckless driving (Class B) or disorderly conduct (Class C) charge, they could be convicted and keep their eligibility. However, I would not want the words “reckless driving” or “disorderly conduct” next to my client’s name for the rest of their life. At that point I would try to get a dismissal of the charge, followed by an expungment.
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.
First Offense DUI in Memphis, Tennessee
February 19, 2008 | Leave a Comment
Memphis DUI attorneys understand that if you are charged with DUI for the first time, you are probably concerned and worried about your future. Our Memphis DUI lawyers realize that Driving Under the Influence is typically not a crime involving malice. Many individuals charged with DUI are not familiar with the criminal justice system. The DUI laws and regulations are confusing and seem to change frequently.U
nder Tennessee law, any person convicted for a first offense DUI shall be fined between $350 and $1,500. The court will prohibit a convicted person from driving a vehicle in the state of Tennessee for a period of one year. Tenn. Code Ann. § 55-10-403 (2007). A first offense DUI violation is a Class A misdemeanor. The jail time depends upon the circumstances surrounding the conviction.
If you are less than twenty-one years of age at the time of the offense, the court shall sentence you to confinement in the county jail or workhouse for a minimum of forty-eight hours to a maximum of eleven months and twenty-nine days incarceration. As a condition of probation, you must remove litter during daylight hours from state route highways or state-aid highways, for a period of twenty-four hours. The period of litter removal shall be served in three shifts of eight consecutive hours each.
If you are twenty-one years of age or older at the time of the offense, the court shall sentence you to confinement in the county jail or workhouse for not less than twenty-four hours nor more than eleven months and twenty-nine days. As a condition of probation, you must remove litter during daylight hours from state route highways or state-aid highways for a period of twenty-four hours. The period of litter removal shall be served in three shifts of eight consecutive hours each.
• If at the time of the offense the alcohol concentration in your blood or breath is twenty hundredths of one percent (.20%) or greater, the minimum period of confinement for you must be seven consecutive calendar days rather than forty-eight hours.
• If at the time of the offense, you were accompanied by a child under eighteen years of age, you must be punished by a mandatory minimum incarceration of thirty days and a mandatory minimum fine of one thousand dollars $1,000.
• If at the time of the offense, you were accompanied by a child under eighteen years of age, and the child suffers serious bodily injury as a result of the DUI, the violation is a Class D felony.
• If at the time of the offense, you were accompanied by a child under eighteen years of age, and the child is killed as a result of the DUI, the violation is a Class C felony.
Contact a Memphis DUI lawyer to talk about the facts and circumstances surrounding your case. A Memphis DUI attorney can discuss different legal avenues applicable to you. Our Memphis attorneys handle DUI cases in Germantown, Cordova, Collierville, Bartlett and all of Shelby County.
Contact a Memphis DUI Lawyer!
February 19, 2008 | Leave a Comment
Memphis DUI lawyers realize that a DUI charge can be intimidating, especially if you don’t know a lot about Tennessee DUI law. Memphis, Tennessee DUI lawyers can help you understand Tennessee law, and explain your rights and options. If you have questions about the automatic license suspension or the impact a DUI conviction might have on your insurance costs, you may want to talk with a Memphis DUI lawyer.
You should not wait until your initial court appearance to start asking questions about your particular case. Contact a Memphis DUI lawyer before you appear in court so that your Memphis DUI attorney can gather important information he or she needs to make informed decisions about your case. A Memphis DUI lawyer can assess your case from your point of view, and advise you on Tennessee DUI law as it applies to your situation.
If you have questions about the sentence you face including whether the mandatory jail time provisions apply to you, contact a Tennessee DUI lawyer. You may think that there’s no way to successfully challenge a DUI charge, but Memphis DUI lawyers know that many cases have weaknesses. These weaknesses often open doors to dismissals or acquittals. Any crack in the state’s case could create an opportunity for a Tennessee DUI lawyer to negotiate for reduced charges or a favorable plea bargain.
Take advantage of the opportunity to learn about your rights under Tennessee law before you take a step in any direction. Contact a Tennessee DUI attorney if you have been charged with DUI in Memphis, Tennessee. Our DUI attorneys handle DUI cases in Memphis, Germantown, Collierville, Bartlett, Cordova and all of Shelby County.
Two-tiered level of DUI
December 14, 2007 | Leave a Comment
Memphis DUI lawyers might be looking at new classifications of dui’s in the future if what is going on in the West Virginia legislature is any indication.
West Virginia has a bill up that will change the ways that dui’s are prosecuted. The new legislation would make it so that two different tiers of dui’s are created.
Tier 1 would be for all dui’s in which the person blew a .08 to a .14 into the breathalyzer. For these dui’s the person would no longer need to serve 24 hours in jail and would instead be released after a few hours with just time served.
Tier 2 would be for what will be called “aggravated dui’s” in which a breathalyzer reading of .15 or higher was reached. These individuals would then be required to stay in jail for at least 48 hours.
The reasoning behind he law is that West Virginia is trying to lower the number of people required to stay in jail in order to help a crowded jail population. Currently all offenders are required to stay at least 24 hours in jail.
If this new law goes into effect it should give anyone arrested in West Virginia even more reason to hire a dui lawyer. Why you might ask? Because breathalyzer’s are not infallible. In fact they are very often wrong and an experienced dui lawyer should be able to point that out to the court. Here the difference between .14 and .15 could mean an extra few days spent in jail, and thousands of extra dollars in insurance and other costs, not to mention to possible loss of a job for being convicted of “aggravated dui”.
To get a copy of the free report “The Unauthorized Guide to Memphis DUI Defense” written by DUI Lawyer James Ferrell, just email us at info@lawferrell.com or call our 24/7 automated line at 1-800-546-2713 today.
Memphis DUI Lawyers, “It just depends on how good of an attorney you get,”.
December 7, 2007 | Leave a Comment
In an article running in today’s Memphis Commercial Appeal, Memphis Metro DUI Seargent Chris Jones huffs that when it comes to getting out of a DUI, “It just depends on how good of an attorney you get.”
The article in the paper also states that Since 2003, the Shelby County Attorney General’s Office has had a DUI Prosecution Task Force. That head of that task force is prosecuting attorney Charles Bell, who spent more than a dozen years prosecuting violent crimes.
Mr. Bell had this to say about prosecuting DUI cases, “I came to DUI, quite honestly, not realizing how difficult it is to prosecute cases,” he says.
The article goes on to talk about how Memphis and Shelby County are working together to try and crackdown on drinking and driving this holiday season.
At one point in the article the prosecutor is quoted as saying “You can be a little buzzed and be impaired” and follows that up by saying “On the other hand, I’m sure the defense bar will tell you it’s not illegal to have a drink and drive.” These quotes came in response to whether he thought the breathalyzer even mattered, which he apparently does not believe.
It seems that Mr. Bell thinks that anyone drinking and driving should be arrested for DUI. The problem is that it is not against the law to drink and drive. It is only against the law the be intoxicated and drive. There’s a big difference between the two, but I guess Mr. Bell doesn’t think so. In his opinion if you’ve had a beer and drive then you should be behind bars.
This is the type prosecutor and officer that you’ll be against when facing a DUI charge. Unfortunately they sometimes don’t care about the law, just about putting someone behind bars.
To read the full article you can click here.
To get a copy of the free report “The Unauthorized Guide to Memphis DUI Defense” written by DUI Lawyer James Ferrell, just email us at info@lawferrell.com or call our 24/7 automated line at 1-800-546-2713 today.
Famous DUI’s!
December 5, 2007 | 1 Comment
If you’re like most people when they receive a DUI here in Memphis or Mississippi the first thing you think is that you’re life is over. And although a DUI does hamper many aspects of your life a conviction is not going to ruin your life forever (it just makes it more difficult).
A DUI conviction in Kennebunkport, Maine didn’t seem to stop a young George W. Bush from going on to become the future President. And two convictions of Dick Cheney didn’t stop him from later becoming a Vice-President.
Here in Tennessee State Senator Jerry Cooper recently received a DUI. As did Al Gore’s son Al Gore, Jr. when visiting California.
Several mayors around the country have been convicted. The list includes the mayor of Boise, Idaho; Carson City, Nevada; Gore, Oklahoma, Norton, Ohio and more.
Even prosecutors get in on the act sometimes. As is the case in Miami where the city prosecutor hit two people riding a scooter while he was driving under the influence.
Remember, it’s best not to drink and drive. But if you have been convicted it doesn’t mean your life is over. Just make sure that you know your rights.
To get a copy of the free report “The Unauthorized Guide to Memphis DUI Defense“ just email us at info@lawferrell.com or call our 24/7 automated line at 1-800-546-2713 today.
Tennessee DUI Conviction Worse Than a Violent Felony?
December 5, 2007 | Leave a Comment
Here’s an interesting article from The Tennessean that looks at how a DUI Conviction here in Tennessee can stick with you for life. You’d be better off if you’re arrested for domestic violence, burglary or almost any other felony except for misdemeanor DUI here in Memphis.
DUI convictions can’t be erased
By SHEILA BURKE Staff Writer -What can a drug user, wife beater and burglar do that someone convicted of driving under the influence can’t?Under Tennessee law, all but DUI offenders are eligible to have their criminal records wiped clean. Such harsh terms normally apply only to the most violent perpetrators, such as murderers and sexual predators.
Criminal defense attorneys say that’s one more reason drivers should be careful this holiday season, a time when DUI arrests typically rise… click here to read the rest of the article
It seems to me that DUI offenders are everyone’s favorite easy target these days. If you’ve been arrested for DUI make sure that you speak with a lawyer and know the repercussions before going to court alone.
To get a copy of the free report “The Unauthorized Guide to Memphis DUI Defense” just email us at info@lawferrell.com or call our 24/7 automated line at 1-800-546-2713 today.
Illegal Roadblocks and Checkpoints
November 28, 2007 | Leave a Comment
HOLIDAY SEASON UPDATE During the holiday season, many local police departments and the Tennessee Highway Patrol will utilize roadblocks and checkpoints in order to reduce alcohol-related accidents and increase safety for all drivers on the roads. Many arrests and seizures will be made courtesy of these roadblock and checkpoints, but many of these setups will be found unconstitutional under both Federal and Tennessee case law. Moreover, because most government offices and public works are closed during the holiday season, it will be months before charges will be dismissed. Know your rights and avoid the holiday headache of an unfair and unlawful DUI charge. Always remember though, driving while intoxicated or under the influence of drugs greatly endangers you and other drivers on the road. Always drink responsibly and designate a driver.
SEARCHES AND SEIZURES Federal case law and the Fourth Amendment of the Constitution protect citizens from unreasonable searches and seizures. Case law decided under Article I, Section 7 of the Tennessee Constitution go even further to protect individual liberties. Under Tennessee case law, you have been seized by a law enforcement agent as soon as the blue lights are turned on. The officer must have probable cause and reasonable suspicion of wrongdoing before they walk up to your car. There must be individualized suspicion not generalized profiling. Always drive carefully and with your seatbelt on.
ROADBLOCKS AND CHECKPOINTS The officers involved cannot make the decision to have a roadblock or checkpoint nor can they decide for themselves the operating procedures. Valid roadblocks and checkpoints must have clear operational guidelines, be conducted under supervisory authority and for a compelling state interest. The purpose of the roadblock or checkpoint must be the actual stated purpose and not a blanket disguise to detect any criminal wrongdoing. Tennessee Department of Safety General Order 410-1 lays out the appropriate guidelines for the Tennessee Highway Patrol and serves as a guideline for local law enforcement.
- - Clear notice. This means not only notice on the road for advancing traffic but also notice to the local community at large. Watch your local news and listen to the local radio stations for advertisements and warnings.
- - Uniformed officers. Patrol cars with flashing lights must be present. Look for clear markings of which law enforcement agencies are present. Don’t open your windows or doors without being sure that you are in the custody of real law enforcement officers.
- - Safe and visible area. The goal of law enforcement is public safety. Hidden or concealed stopping points are unnecessarily dangerous to everyone involved, regardless of the precautions taken by the officer. Make sure your vehicle is clear of and clearly visible to the continuing traffic.
- - Stop all cars. Both directions of travel should be subject to the same traffic congestion. There must be no discretion left to the conducting officers.
KNOW YOUR RIGHTS All public laws are created to protect and serve society as a whole as well as maintaining individual liberties. Conduct yourself as a good citizen and obey the rules of the roads. Good citizens do not deserve unnecessary intimidation by law enforcement trying to weed out the bad apples and increase revenues by writing expensive citations. Know the laws and your rights under the laws.
Have a safe and happy holiday season, and a happy new year!
Should I blow into the Breathalzyer?
November 27, 2007 | Leave a Comment
As DUI Lawyers in Memphis we hear this question all the time. In fact, it’s probably the most asked question that we hear. Unfortunately there isn’t a cut and dry answer. What I can say is that every year we represent people who tell us that they had only drank one or two beers before they were pulled over by the police, and even though they had only had one or two drinks they still insisted on not blowing. When we ask them why the usual answer we get is because they “had a friend tell them to blow” or “I heard a lawyer say not to blow one time”. What almost always occurs next is that these people end up losing there drivers license for at least three months and many times up to a year. If the person would have simply taken the breath test they probably would have blown below .08% and would have never have received a ticket for DUI or for refusing to blow.
Those charged with refusing to submit to a DUI breath test in Mississippi almost always lose their driving privileges. Count on it if you refuse to blow.
If your blood alcohol reading is over the legal limit of .08%, Tennessee law says that you are guilty of DUI “per se”. This means that if you operate a vehicle and exceed the legal limit of .08%, you are guilty of DUI. In other words, there does not need to be a finding of impairment in order for a judge or jury to find you guilty. Take the test, fail it, and so long as the stop and test are found to be valid, the law does not require that any further evidence be provided as to your intoxication, Mississippi DUI laws are similar to Memphis DUI laws.
Our DUI lawyers in Memphis have found that people who take the breath test and register close to the legal limit often have their case reduced to Reckless Driving. However, If you take the test and register in the higher percentage ranges, odds are that you aren’t going to have your case reduced and you will be found guilty of DUI.
Your blood alcohol level is dependant on several factors, such as how much you have had to drink, how much you have had to eat, your own metabolism, how much you weigh and how long it has been since your last drink. For the average person, 3 beers is enough to exceed the legal limit. Two five-ounce glasses of wine is enough for a 100-pound woman to exceed the limit. The breathalyzer doesn’t use any of your specific information though to determine whether or not you are intoxicated. Instead the computer uses a compilation of “averages” to make this determination. The problem is that most Americans aren’t average and because of this it is likely that the breathalyzer could indicate you are intoxicated when you actually are not.
And when the breathalyzer comes back with a result that shows you are intoxicated this is a difficult hurdle to clear (although we do have many ways to fight this) in defending you. If you believe that there is a high probability that you are intoxicated it is generally in your best interest not to blow. By not blowing we are often times able to prepare a better defense to your DUI. But you should be aware that by not blowing you are almost guaranteeing yourself that you will lose your driving privileges for some length of time.
So here’s the final answer. You should blow if you are not intoxicated, and you should not blow if you are. A better question if you are considering this should be, “Should I drive?” Even a small amount of alcohol combined with driving opens yourself up to possible bad situations. Don’t take a chance with your life or someone else’s, take a cab.
