Should I take a blood test? Should I take the breath alcohol test?
It is an often asked question by citizens who are pulled over on a suspected DUI. The only certain answer is after you know the results! Only then will you know what the mechanical device says about the quantity of alcohol in your body.
The amount of alcohol in your blood is a function of not only what you drink, but also, most importantly, your age, your size, your metabolism, and when you last ate.
In Tennessee, beginning on July 1, 2003, the magic reading on the breath alcohol test (BAT) is .08; that is where the presumption arises that you are too intoxicated to drive.
Breath tests (and to some extent blood tests) can be wrong. Frequent problem areas include the machine itself and the manner in which it is used on you. Your lawyer can get the facts and tell you if you are the victim of an inaccurate breath alcohol test reading.
If you are convicted of first offense DUI in Tennessee, the minimum penalty is an 11 months and 29 day sentence with all but 2 days suspended, $350.00 fine, payment of court costs and loss of license for one year.
Your Miranda Rights
"They did not read me my rights!", is an often touted phrase. Unfortunately, the failure of an officer to advise a citizen of his Miranda rights is often not fatal to the prosecution. Recall the Miranda warning: "You have a right to remain silent, anything you say can be used against you in a court of law..." Remember the reason for the warning: if a police officer is going to ask you questions, while you are in custody, he must give you a Miranda warning if he hopes to use your statements in court. In most traffic stops, however, the police officer is not concerned about what you say; he is not seeking a statement. Thus, the Miranda warning is usually not given in traffic stops. Be careful, even in traffic stops what you say can be incriminating. Once your lawyer gets the facts, he can determine if there has been a Miranda violation and whether your statement can be kept out of court.
What to do if you are pulled over (traffic stops).
The most important thing to do when you are stopped by a police officer on a roadway is to be cooperative. So many people turn a routine traffic stop into a nightmare by their attitude and actions. A traffic stop is no place for sarcasm, insults or belligerence. Don't give the officer a reason to take it to the next level.
Being cooperative does not mean giving in to everything the officer asks for. To the contrary, you do not have to consent when he asks to search your car or search your person. Sometimes officers will check your license then ask, "May I search your car?" At that point, you are justified in politely saying, "No." The officer may be "fishing." On the other hand, if he has arrested you and put you in the squad car for a trip to the local jail, he does have a right to search your car.
The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. As a result, police officers do not have unbridled discretion to search you, your car, or your home. Whether a police officer's search violated the Constitution is based on many factors. Different rules apply to different facts. Only an attorney trained and experienced in search and seizure law will be able to sort through your situation and give you the right answer.
Bail Bonds
The Tennessee Constitution guarantees that every person is entitled to a reasonable bond except in capital cases. Only when you satisfy the conditions of making that bond can you get out of jail.
In Tennessee there are three ways to make the bond and get out of jail:
Use a professional bondsman. Bondsmen charge 10% of the amount of the bond, plus a processing fee of about $25.00. Thus, if you have a $5,000.00 bond, you would pay a bondsman the sum of $525.00. The money you pay the bondsman is not refundable. You do not get it back after your case is concluded.
Pay the entire amount of the bond. If it is a $5,000.00 bond, put up the $5,000.00 in cash. The advantage to making a bond in this fashion is that when the case is concluded, your money is refunded in full.
Make a property bond. The requirements for making a property bond vary from county to county, but generally, if a family member or friend can agree to use their property to bail you out. The property must have a value of one and a half times the amount of the bond. For instance, if your bond is set at $5,000.00, the property must be worth at least $7,500.00. A Deed of Trust and an appraisal are also required. Property bonds are complicated, but work well when a bond is particularly high.
How much will it cost to hire a lawyer?
Like all professionals, lawyers charge for their services. Most criminal defense lawyers charge a flat fee or retainer when they undertake to represent you on an alleged criminal offense. The attorney fee is normally paid at the start of representation, and will normally be the total charge throughout the entire proceeding.
Attorney fees are based on many factors including the time and labor required, the novelty and difficulty of the questions involved, and skill required to perform the legal service properly, time limitations, and the experience, reputation and ability of the lawyer performing the services.
If you are unable to afford to hire an attorney, a public defender or other appointed counsel will be provided by the court. The Constitution guarantees that you are entitled to be represented by counsel whenever you are charged with a crime that may result in jail time.
Should I talk to the police?
The question, "Should I talk to the police?" is a haunting one. Feeling that they have nothing to hide, many people talk freely with law enforcement officials; only to regret it later. The decision of whether to talk to the police should be just that: a decision and not a knee jerk response without careful consideration. The decision needs to be made with a lawyer who can help you think it through, by weighing the competing interests. You can always talk to the police, but you can only talk to them the first time on one occasion. It is important to remember the words of the Miranda Warning: "Anything you say can and will be used against you." The best advice is always to talk to a lawyer before you talk to the police, because once you speak, you can never take it back.
