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It wasn’t Kenneth G.’s first time behind the wheel allegedly drunk.

When the 40-year-old man got pulled over in September, it was his third time being stopped on suspicion of driving under the influence.

And law enforcement knew about his 1994 and 2003 DUI convictions.

When a police officer in Benton, Tenn., asked him to take a breath test or consent to a blood draw, he refused. When his case got to court, prosecutors didn’t have enough evidence to charge him as a three-time DUI offender, so the charge was reduced to a lesser, included offense.

But if DUI-related legislation awaiting Gov. Bill Haslam’s signature gets the go-ahead, defendants like Kenneth will no longer slip through a loophole.

The legislation, which would go into effect Jan. 1, 2012, will require police to force a blood draw regardless of whether the driver consents to it if they have a prior DUI conviction or if they have a child in the vehicle with them under the age of 16.

Sponsored by lawmakers Sen. Mae Beavers, R-Mount Juliet, and Rep. Tony Shipley, R-Kingsport, the legislation, which critics claim violates certain constitutional rights, received unanimous support in the House and Senate.

“We’re tired of drunk drivers killing people,” said District Attorney General Steve Bebb, who serves Bradley, McMinn, Monroe and Polk counties and who lobbied for the bill. “We don’t know if it will stand up or if it’s constitutional, but we’ll test it.”
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What happened: People accused of a repeat driving-under-the-influence charge were being placed in jail without bond or with exorbitant bonds, depending on a general sessions judge or night court magistrate’s interpretation of a new DUI law.

The background: Metro Public Defender Dawn Deaner argued that the law, which took effect Jan. 1, was unconstitutional and asked a Davidson County Criminal Court to intervene. The state attorney general’s office in February admitted the law isn’t clear and was not intended to direct judges to deny bail, but to encourage them to require electronic monitoring devices or random drug tests while someone charged with DUI was awaiting a court hearing. Criminal Court Judge Mark Fishburn agreed and ordered Davidson County’s night court commissioners to stop denying bond in such cases. Judges and magistrates in some Middle Tennessee counties, however, were interpreting the law as they saw fit. The law states that someone who is arrested for at least the second time on a DUI charge “shall be considered a danger to the community” and “shall not be released with another bail unless the court first determines the defendant is no longer a danger to the community.” The law goes on to say that the court “may consider” the use of electronic monitoring devices, random drug tests and other tools that it believes could eliminate the danger.

What now: Deaner has dropped her challenge to the court after her staff found that judges were setting reasonable bail on repeat DUI charges.

What’s next: DUI defense lawyers say some Middle Tennessee counties are still setting bonds too high, but that has been on a judge-by-judge basis. Some civil lawsuits filed on behalf of those accused are still pending in court.

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Attorneys filed the first official lawsuit Tuesday challenging Tennessee’s new DUI law. The suit claims the law is vague and unconstitutional.

The Channel 4 I-Team first uncovered the potential problems with the new law several weeks ago. The entire piece of legislation could be thrown out because of constitutional concerns.

Attorney Allen Woods is one of several attorneys, and even judges, who have questioned the state’s new DUI law. He said the new law prevents repeat offenders from getting a bail if they are considered at all a danger to society.

“These are not the type of cases where the accused — mind you, not convicted, just accused — should be denied bail and forced to sit in jail for days on end,” Woods said.
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On Wednesday afternoon, a judge made an unusual move that challenges a new TN DUI law. The law is keeping offenders in jail without bond, which a judge is questioning.

A DUI law passed last legislative session is meant to crack down on repeat DUI offenders. But instead, some attorneys said it creates more problems.

Four men in court Wednesday were arrested on charges of driving under the influence. All of them have been arrested on DUI charges before. So the new state DUI law aimed at repeat offenders applies to them: It’s intended to keep repeat offenders from getting back on the street easily. Nashville Public Defender Dawn Deaner said that’s the reason these men have been held without bail for days.

“I believe the commissioners should be setting the bail,” said Deaner.

The new DUI law states repeat DUI offenders cannot have bail set by commissioners, or night court judges, if they are at all a danger to society.

That means if someone is arrested on DUI charges on a weekend and they could be considered a danger, they will stay in jail without a bail until they can go before an elected judge, which often takes days.

But according to the state’s constitution, a quick bail is mandatory except in capital murder cases.

“I believe the plain reading of the statute presents constitutional issues,” said Deaner.

So does criminal defense attorney Lee Sprouse.

“I do think that the constitutionality on its face should be addressed,” said Sprouse.

Judge Mark Fishburn said he agrees not setting bail for DUI offenders is unconstitutional. He issued an order in court Wednesday requiring night court judges to set bail once again, even though the new law states commissioners should only set bail if the defendant presents no danger to society.

Night court judges said that puts them in a somewhat strange position. They must set bail, but they also may still believe the defendant could be a danger to society.

Fishburn said that’s why the problems with this new law are still somewhat unsolved. He set another court date for 30 days from now to reevaluate the night court judges’ concerns and the constitutional concerns.

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New Tennessee laws go into effect this week, and among them, two controversial ones.

One law stiffens the penalties faced by first-time DUI offenders. It requires offenders to have an ignition interlock device installed in their vehicle. The lock tests the driver for alcohol intoxication before allowing them to start the car.

Trooper Ehrin Ehlert administrates the ignition interlock program in Tennessee. He says this law will become more of a deterrent because having to blow into a device before the vehicle will start is not only embarrassing, but an inconvenience.

In July 2010, a similar law was passed for convicted drunken drivers in four California counties, including Los Angeles.

The other new law requires local jailers to report illegal immigrants to federal Immigration and Customs Enforcement and Department of Homeland Security officials. Some Tennessee jails were already involved with a voluntary ICE program that did the same thing. The new law puts the requirement into place in all cities and counties.

The requirement has come under fire from civil rights groups who claim the law is an unfunded mandate on local governments with no public safety benefit.

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A TN man was drunk and mouthy in 1993 after he crashed his car into another in Donelson. He asked police investigators how many m*f*’s he had killed. Three people, including a 15-year-old girl, died.

Prison aged him, but it didn’t stop his drinking and driving.

Only a year after he was released from prison in 2006, he got the first of three more DUIs. On his 2007 DUI, he was sentenced as a first offender and given 48 hours in jail.

How could this happen? Under state law, a DUI conviction that’s more than 10 years old doesn’t count anymore when someone’s sentenced on a new DUI.

It’s frustrating to Tom Kimball of the Tennessee District Attorney’s Conference. He tracks people convicted of killing someone while driving drunk. He knows that each drunken driver who serves at least ten years will get the same break this man got.

The latest copy of his publication, DUI News, profiles six drunken drivers convicted of vehicular homicide by intoxication.

“So we got a half dozen people, each of them got 10 years or more, some got 25 or more, all will come out a first offender when they get out of prison,” Kimball said.

Kimball wants the law changed.

“That’s almost throwing salt in the wounds of someone who lost someone as a victim of that vehicular homicide,” Kimball said.

To Larry Scheib, it makes no sense that this man became a first offender again after the crash that killed his 15-year-old daughter.

“He has never changed, from the day he went in in 1993, to today,” Scheib said.

Scheib worries that he will kill someone else, driving drunk.

Kimball says that about half a dozen states don’t have ten-year look-back laws like Tennessee’s. He said the law was written during a time when drunken driving wasn’t considered as serious as it is today.

The law was meant to give a break to someone who made one mistake a long time ago but who had not been in trouble since.

The hard-core drunken drivers who killed people, Kimball said, ought not be rewarded for having no DUIs in 10 years.

“They didn’t have a car in their cell,” he said. “That’s why they didn’t have a DUI in ten years.”

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Tennesseans might begin to take the drunk-driving issue more seriously after a new mandatory penalty goes into effect Jan. 1.

The new law, passed by the General Assembly last spring, calls for the installation and use of functioning ignition interlock devices — dashboard Breathalyzers, so to speak — for certain drivers convicted of driving under the influence, including some first-timers.

A more cautious, consistent pattern of behavior among social drinkers could improve safety on Tennessee streets and highways.

A driver who takes the wheel under the influence of alcohol for the first time can kill someone just as readily as a habitual drunk driver.

But how many people do you know who don’t give much thought to having a few drinks before getting behind the wheel, until they get caught, booked and humiliated?
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A proposed law tied to DUI offenders is heading to the Governor Phil Bredesen’s desk. The bill requires some convicted drunk drivers to install a breathalyzer device in their car that can lock and unlock their ignition.

The interlock would be required for anyone convicted of DUI with a blood alcohol content of .15 or more.

Critics say the bill is a good start, but it doesn’t go far enough.

“Anything that puts more ignition interlocks out on the roads for offenders is a step in the right direction,” said Julie Strike with MADD

Strike was hit by a drunk driver five years ago.

“My leg was cut to the bone, I had to have surgery to close that,” she said. “I also had a head wound that required staples.”

Her offender would not have been stopped by the proposed law. The driver’s BAC was .14.

“The bill that we would like to see ultimately passed is for all DUI offenders to have an ignition interlock system at .08,” Strike said.

While the law doesn’t require every DUI offender to install an interlock, it does put more of the devices on the road. The Tennessee Highway Patrol says anytime that is done it has the potential to save more lives.

“It keeps someone who is DUI from getting behind the wheel and driving down the road,” said Sgt. Ken Rose with THP.

According to the state safety department, about 3,900 people were issued restricted licenses for DUI convictions in 2008. Of those, about 1,200 were for a blood alcohol content above .15.

“Anytime you have someone impaired by drugs or alcohol, it is a serious problem out here on the roadway,” Rose said.

It’s a problem Julie Strike and others in MADD will continue campaigning to solve.

“We just keep pushing until we get it mandatory for all DUI offenders,” Strike said.

The law would take effect July 1st once it gets the governor’s signature.

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Legislation requiring certain Tennessee DUI offenders to use an ignition interlock device to operate their vehicle made it out of the General Assembly’s so-called “black hole” subcommittee on Wednesday.

Interlock devices are attached to the steering wheel of a car with a tube the driver must breathe into to ignite the engine.

The interlock bill, sponsored by Kingsport GOP state Rep. Tony Shipley, advanced by a voice vote in the House Budget Subcommittee over a competing measure sponsored by state Rep. Henry Fincher, D-Cookeville.

“I have been working on this legislation for over a year, and I am committed to seeing it through to the end,” Shipley said in a prepared release following the vote.

Fincher’s bill, advocated by the Tennessee chapter of Mothers Against Drunk Driving (MADD), stayed alive but was placed behind the proposed budget.

“I would point out to this committee that this bill is tougher on crime,” Fincher said of his legislation. “It made the state more money. It would have saved more lives. … It’s beyond me why the other bill got through.”

Subcommittee Chairman Harry Tindell, D-Knoxville, told Fincher: “The committee felt (Shipley’s bill) was responsible legislation. Yours was well-intended as well. We can only pass one on the same subject, obviously.”

The Senate companion to Shipley’s bill, sponsored by Mount Juliet GOP state Sen. Mae Beavers, unanimously passed in the state Senate in mid-April. With Wednesday’s subcommittee vote, Shipley’s bill moves on to be considered by the full House Finance Committee.

The Senate companion to Fincher’s bill was introduced by Oak Ridge GOP state Sen. Randy McNally, who did not advance it in the Senate Judiciary Committee.

“I would just point out the practical problem with the second bill is that it is dead in the Senate,” House Finance Committee Chairman Craig Fitzhugh, D-Ripley, said of Fincher’s bill.

But Tindell added: “If Representative Shipley’s bill does not pass, it would be quite alive.”

As amended, the Senate version of Shipley’s bill requires the use of the interlock devices if the offender has a blood alcohol concentration (BAC) of 0.15 percent or higher; is accompanied by a person under 18 years of age; or violates the present implied consent laws.

The legislation also provides that those convicted of drunk driving with a BAC under 0.15 have the option to install an interlock device instead of being geographically restricted by a court.

Fincher’s legislation required interlocks for all first-, second- and third-time DUI offenders.

His bill also mandated an alternative form of monitoring, either an in-home device or a continuous alcohol monitoring ankle bracelet, for any offender who claims not to have a vehicle, according to MADD.

Fincher’s bill is “very similar” to laws in New Mexico and Arizona, where 35 percent and 33 percent reductions have occurred in alcohol-related traffic fatalities, MADD noted.

MADD said more than 320 people were killed in drunk driving crashes in Tennessee during 2008.

As of last January, 2,743 Tennessee driver’s license holders had an interlock restriction, while 580 license holders had an interlock device installed, according to the Department of Finance and Administration.

For more information, go to www.capitol.tn.gov. Shipley’s bill is HB 2768. Fincher’s bill is HB 2917.

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Kingsport Police have filed a 10th DUI charge against a driver who was going about 20 miles per hour on Interstate 26 and weaving. The Kingsport Times -News reported that the 57-year-old man told the officer on Tuesday, “I’m drunk. Do what you gotta do.” The police report stated that when asked to take sobriety, breath or alcohol tests, the man kept repeating that he was drunk.

Police charged him with DUI, violation of the implied consent law and being a habitual motor offender.

The man has no driver’s license. Police said it had earlier been revoked for repeated offenses.

If you have been charged with DUI for a first time or a subsequent offense you should contact a DUI lawyer for a free consultation.

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