Friday, January 28, 2011

Brillant plan

A Nashville man had two DUI's pending in Court Tuesday. He pled to a DUI and a Reckless Driving charge. He also pled to an implied consent violation. He had to serve 48 hours in jail and lost his license for a year.
How did he respond to this hard lesson?
On Thursday, he was arrested for another DUI. He gave an insufficient sample for a breath test and then during a blood test, he pulled the needle out of his arm.

Repeat offenders won't stop without help

Each prior DUI conviction increases an offender's future liklihood of being convicted for another DUI offense by 10% per year!

Source: NHTSA National DWI Sentencing Summitt at the National Judicial College March, 2004.

Study: 70% of inmates are on drugs

A Federal study including ten jails in different regions of the country has revealed disturbing news concerning drug use by people who are in jail. It appears to be more than a coincidence and tells those who work in the legal system what we already know. The use of illegal drugs is common amoung criminals and is often at the core of why people begin to committ crimes.
More than a few of these inmates were probably driving a car under the influence of drugs every day, before they were incarcerated.

Read about the study in the Minneapolis Star Tribune by clicking on the link:

Thursday, January 27, 2011

Revoked, Suspended, Cancelled

On January 26, there were 70 violations written for people in Nashville for Driving on Revoked, Suspended and Cancelled Licenses and 10 more for people who had no Driver's License.

Apparently more than a few people don't care if they have a valid license.

Of course, all are presumed innocent until proven guilty.

Monday, January 24, 2011

Implied Consent Violations

In December 2010:

104 people arrested for DUI refused a breath or blood test.
27 of the offenders had prior DUI convictions
15 were arrested for DUI and there was evidence of drug consumption.

New DUI Decision

The Court of Criminal Appeals has released it's favorable decision in State v Sweeton. In it the Defendant complained about alleged discovery violations and the use of a prior conviction from Georgia.
Discovery and Brady claim:
1) The officer scratched notes on a notebook and then transferred the information to his report. The Defendant claimed the State had withheld evidence by failing to produce the pocket notes. The Court said otherwise.
2) During cross examination the Defense brought up the idea that the signs of impairment might have been from a medical condition. During re-direct, the officer testified that the jail intake medical form was completed and the defendant denied any medical conditions. The Defendant complained that the State had not provided the jail intake form in it's discovery response.
The Court stated that the Defense attorney would have known about the medical intake form, if he had investigated his case and interviewed his clint. The Court wrote: "A brief conversation between defense counsel and the appellant would have revealed that the appellant did not have any medical conditions that would impair his performance on the field sobriety tests and that the appellant had filled out a form attesting that he did not require medical attention at the time of booking. “[T]he State is not obliged to make an investigation or to gather evidence for the defendant.”
3) The Court found the 10 page document from Georgia sufficient to prove a prior Georgia conviction. Read the entire case at:

Friday, January 21, 2011

Alcohol use curbed by anti-nausea medication

A study published in the American Journal of Psychiatry gives new hope for alcohol abusers who want help. The anti nausea medication Zofran appears to aid in cutting back the use of alcohol by affecting the pleasure center or the serotonin system of the brain.
This medical development combined with treatment, supervision and monitoring may help stop DUI recidivism in some offenders.
Read about this drug and the study at:

Fatal hit-and-run accident leads to mob beating

Be happy we don't live or drive in Los Angeles.
A pedestrian was hit by a car. The Driver left the scene. Another car then ran over the pedestrian, who was now laying in the road. The driver left the scene.
A Good Samaritan was hit by a third car as she tried to cross the road to help the first victim. That driver stopped to check on her. He was mugged and robbed. He escaped, drove away, but returned after the police arrived.
Sadly, the first pedestrian passed away.
One of the robbers was arrested. The second driver, who left the scene was also apprehended.
The police are still looking for the first driver.
Read more at:

12 year sentence for Warren County Recidivist affirmed

Lawrence D. Ralph was going to get a warning from Trooper Bruce Prior when he made a wide turn. However, Mr. Ralph knew some things that the Trooper did not know. Ralph sped off as the Trooper walked up to his Pontiac. Then he ran into the woods. What did he know? He knew he had been drinking. He knew he had been declared a Habitual Traffic Offender. He knew he had 3 prior DUI convictions. He knew what prison was like from a previous 17 year sentence.
There were also some things he did not know. He did not know that the Trooper and other officers would look for him through the woods and pursue him like beagles chasing a rabbitt. He did not know that citizens would see him and sahre the information with the Trooper. He did not know that DUI Prosecutor, Darrell Julian, would prosecute him through a jury trial. He did not know that running doesn't always work!
Once Ralph was convicted, his history was taken into account. As a Range 2 felon, he recieved four years for each of three crimes to be served consecutively.
Read the case at:

Implied Consent Forms Correction

Local law Enforcement agencies can order the Implied Consent Form directly from TRICOR. The Form will be generic, without agency identifiers. TRICOR WILL NOT Personalize this form!

Bond conditions

The Bond law includes some devices that can be used as bond conditions. They are not exclusive. Different conditions can be used.
For instance, in South Dakota, multiple offenders are ordered as a condition of bond to abstain from alcohol and report twice daily to take a breath test to show they are in compliance. They call that the 24/7 program.
A Court may know of a good out patient alcohol program and refer a multiple offender to attend the program for monitoring and help with an alcohol addiction.
A Court may trust a caring parent to control an adult child living at home and may help them with electronic monitoring or some sort of phone check in plan.
The point is that the list is not exclusive. Those setting bonds need to look at each individual case and respond to the situation. There is no cookie cutter that works for every situation.

Thursday, January 20, 2011

Judge Fishburn Order Re: Bond hearing


This matter is before the Court upon the Petition of the Defendants for a Writ of Certiorari and Supersedeas and to declare as unconstitutional the amendments relating to DUI bonds, which became effective January 1, 2011. Based upon the stipulation of the parties and the arguments of counsel and the entire record in this cause;

It is hereby ORDERED, ADJUDGED and DECREED that the Magistrates shall not set any open court bonds on persons charged with a multiple offense DUI or have a pending DUI charge regardless of whether or not the Magistrate deems the defendant to be a danger to the community.

It is further ORDERED that the Magistrates shall set a reasonable bond considering all the statutory factors set forth in T.C.A. 40-11-118 and 40-11-148.

It is further ORDERED that the Magistrates shall give particular consideration to the issue of whether the defendant is a danger to the community and, if it is determined that the offender is a danger to the community, then the Magistrate shall require as a condition of the bond the appropriate monitoring device as set forth in T.C.A. 40-11-118 and 148 as amended.

It is further ORDERED that the defendant shall be released on bail notwithstanding the unavailability of the device, with the defendant being advised that they are to report to the General Sessions Court Probation Department no later than 12:00 P.M. the next business day to have the monitoring device installed and / or activated.

It is further ORDERED that all other matters are reserved pending further Orders of the Court.

Entered this 19th day of January, 2011


Mark J. Fishburn, Judge

Criminal Court, Div. VI

Wednesday, January 19, 2011

News Coverage of Bond Law hearing

I spent the afternoon watching arguments in a Nashville Court about the bond law today. Then I saw the Channel 4 story about the hearing. I decided we had to be in different hearings. Here is what happened:
1) Judge Fishburn agreed with the State's position that the DUI multiple offender law did not change who sets bonds. In Nashville the Judicial Commissioners were deferring to the General Sessions Judges. The bond law is one section in the bond chapter. The chapter includes direction on who sets bonds in different situations.
2) Judge Fishburn agreed that the process should be that the Commissioner set a bond amount, determine if there is a risk of danger to the public from the driver and if so, set conditions to try to eliminate the danger.
3) The Judge then heard four cases concerning four different defendants and did what the law was intended to do. He set bond amounts between approximately $5,000 and $25,000; determined that the four defendants were dangerous and gave each a monitoring devise as a condition of bond. He ordered transdermal monitoring for each defendant that was driving on a revoked license and restricted the hours during which they could be outside their homes.
4) The Judge set a review date of February 17th to see how the implementation of the law progresses from now on.
5) He did not consider or rule on the constitutionality of the statute. Instead he ruled that the statute had not been followed in the four cases, because bonds had not been set in a timely manner.

Monday, January 17, 2011

The Ignition Interlock Debate

Below is a link to an opinion article that appeared in the Murfreesboro newspaper. It was written by Sarah Longwell, the managing director of the American Beverage Institute. Ms. Longwell sets out the position of the Institute, which is extremely consistent with the new ignition interlock law in Tennessee. Their position is that ignition interlocks should be reserved for high B.A.C. offenders and multiple offenders.
M.A.D.D. on the other hand wants an ignition interlock law that would require the devise for all convicted first offenders. The conflicting opinions were heard quite a bit in the General Assembly in 2010 and will probably be heard again this year. There is validity to each position and the wise folks up on the Hill will ultimately decide what they think is best for Tennessee.
I think everyone should be able to agree that our current system of suspending driver's licenses for many years for multiple offenders is ineffective. Those offenders continue to drive and generally care less about breaking the law than they care about draining their next twelve pack. I believe it is time to get more multiple offenders into long term treatment courts and use ignition interlocks to monitor their post jail behavior.
We will have to wait and see what happens next in the General Assembly. In the meantime, read the position of the Alcohol Beverage Institute at:

Friday, January 14, 2011

The Ethical Prosecutor Challenge

In Nashville a family is devastated. A 3rd offense impaired driver ran into their 22 year old daughter, who was a pedestrian. Then he left the scene. Two weeks later he turned himself in. Two weeks later there was no way to determine his blood alcohol level. There was no way to discover evidence from his vehicle. The driver, Jason Guy, 33, was the Director of Alive Hospice. He benefitted from his choice to leave the scene and to leave 22 year old Carrie Holmes behind. He has now pled guilty to Leaving the Scene and 3rd offense DUI. He gets 2 years in prison, but will probably be out much sooner with parole eligibility.
The A.D.A. had to do what he believed to be the right thing. That's the ethical duty of every prosecutor. It is not always easy.
The right thing was far from satisfactory to a broken father and mother, who will never fully recover. Their sentence is a life sentence. That's a life of grief, disappointment and probably anger. We can only hope and pray for healing for these loving parents.
The biggest question of all is a simple one. Mr. Guy worked for a hospice. At the hospice they provide life sustaining care for those who are dying. How does a person like that leave another person to die on the side of the road? How does a person like that repeatedly endanger the lives of others by driving impaired? We may never know. Any answer would sound like a shabby excuse two weeks after the crime.


I have recieved numerous calls asking how to get the updated Implied Consent form. Captain Darrell Miller of the Tennessee Highway Patrol has provided the answer:

We have made provisions to provide TRICOR with the form. The form that TRICOR has does not contain the words, "Tennessee Highway Patrol" on it. It does however contain the words, "Tennessee Department of Safety" on it. County and municipal law enforcement agencies can order the form directly from TRICOR. They also have the option of personalizing the form to contain their agency name. If they desire to use the form, they should contact TRICOR at (615) 350-3100 ext. 3241 and place an order.

Bad weather saving lives? Watch out for the thaw!

Snow and ice definitely cause Tennessee drivers fits. We aren't used to this stuff. We haver never owned chains and find it hard to believe anyone would put them on tires. We have never driven 45 mph on an Interstate and not been passed by a thousand angry drivers. This is a very strange winter. There haven't been many people taking extra drives to the bar.
It should not be a suprise that we have had 14 deaths on our roadways as comapred to the 32 deaths we had suffered up to this date last year. Mother Nature probably had more to do with that than any program or particular effort by any particular crime-fighters. Thank Mother for her help.
Now go get that fender repaired and the salt washed off your car as it warms up this weekend. Watch out for the party on wheels that will be out this weekend after suffering from cabin fever all week! Stats show 1 in 7 drivers are impaired between 10:00 p.m. and 5:00 a.m on weekend nights. This weekend it may be 1 in 4! Be careful and drive with extra caution.

Friday, January 7, 2011

Vehicular Homicide charge for 4th offender in Clarksville

The Leaf Chronicle in Clarksville reports that a clarksville resident has been charged with vehicular homicide after striking and killing a pedestrian. The driver had a .15 B.A.C. Read more at:

Wednesday, January 5, 2011

DUI NEWS Issue 33

The latest DUI NEWS is now available with articles concerning new legislation and best practices as well as caselaw updates, cross examination preparation and the always popular Wall of Shame. Get your copuy at: