Legal Question in Criminal Law in Tennessee

Driving under the influnce arrest in memphis tn

I was arrewsted in Memphis Tn for dui , i told the officer that i had a imparment "gout" , Should he have changed the test? He told me that if i didnt take the breath test that i would my lose license , i took test twice "inconclusive " He said i caused machine to malfunction, told me if i didnt regester third time i was going to jail i ask if i was under arrest if so wanted a attorney , he refused is this legal? At what point was i under arrest? Should i accept a plea of reckless driving and lose my license for a year? I had 3 drinks in 4 hours but 2 were in last 20 to 30 min before leaving. I also ask for some water to rinse out my mouth before taking test can they refuse this?

Thank you


Asked on 9/13/98, 8:00 pm

1 Answer from Attorneys
Jes Beard Jes Beard, Attorney at Law

Re: Driving under the influnce arrest in memphis

I do a lot of DUI work, and unfortunately under decisions from the Tennessee Supreme Court, you do NOT have the right to consult an attorney before you make your decision on taking the breathalyzer. I think the decision is bad law and might be reversed if someone decided to pursue the matter through an apperal to federal court, but this is quite expensive and has not yet been attempted to my knowledge.

Under Tennessee law you were under arrest for purposes of interrogation when you were not allowed to leave and when a reasonable person would have concluded they were not free to leave.... certainly once you are put in the back of a patrol car and taken to the jail for a breathalyzer you are under arrest, whether the officer ultimately decides to formally file charges and book you or not.

Whether you should accept a plea is going to depend on far more facts than you have presented here, but pleading guilty to reckless driving will not cause your license to be lost for a year.

Can officers refuse to allow you to rinse out your mouth? Well, the officer did, so that is a pretty good indication that the officer is in fact ABLE to do that, whether they should refuse or not. The real qustion is whether the cop will ADMIT that he refused to allow you to rinse out your mouth. If he does, that fact might play well to a jury... but since you don't mention what the breathalyzer reading was that might not make any difference.

Talk with a local attorney who does a lot of DUI work before making a decision.... and you will probably want to HIRE a DUI attorney to represent you in court to make sure things happen as they should.

Jes Beard

Jes Beard, Attorney at Law

737 Market St., Suite 601


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Answered on 12/30/98, 1:12 pm


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