This article provides an update regarding driving under the influence (DUI) offenses in the State of Tennessee. As discussed below, there is a recent increase in DUI arrests in the state and several changes in this area of the law—many of which took effect in the summer of 2022.
Driving Under the Influence (DUI) Arrests Increase in Tennessee
Using data compiled from state law enforcement agencies, the Tennessee Bureau of Investigation (TBI) cites 18,757 DUI arrests in 2021, a 3.03% increase from 2020. Of the top ten counties for DUI arrests, nearby Bradley County was the 6th highest in the state. The county recorded 122 DUI arrests in 2021. Hamilton County was tied for 7th highest (along with Robertson County) with 115 DUI arrests in 2021. So far in 2023, Chattanooga police have also reported a spike in DUIs. More specifically, 65 instances of driving under the influence were reported to the Chattanooga Police Department in January of 2023, compared to 42 in the first month of 2022.
New Tennessee DUI Laws – effective 2022
- DUI Offenders Required to Pay Child Support if Child’s Parent or Guardian Killed in DUI Related Crash—Tenn. Code Ann. § 39-13-219
A new Tennessee law—Ethan, Hailey, and Bentley’s Law—went into effect in the summer of 2022 and requires a judge to order any person convicted of vehicular homicide by intoxication or aggravated vehicular homicide by intoxication to pay child support to any surviving children of the victims until the child has reached 18. Under this law, the court is tasked with determining an
amount that is “reasonable and necessary for the maintenance of the victim’s child” after considering the following factors:
- The financial needs and resources of the child;
- The financial resources and needs of the surviving parent or guardian of the child, including the state if the child is in the custody of the Department of Children’s Services;
- The standard of living to which the child is accustomed;
- The physical and emotional condition of the child and the child’s educational needs;
- The child’s physical and legal custody arrangements; and
- The reasonable work-related child care expenses of the surviving parent or guardian.
Defendants who are incarcerated and unable to pay the required maintenance are given one year after their release from incarceration to begin payment. The law provides an exception for defendants where the surviving parent or guardian obtains a judgment in a civil suit. In those cases, such payments will not be ordered or will be offset by the amount of judgment awarded.
Modeled after a law presented in Missouri, Brentwood attorney Ben Rose drafted the Tennessee law after a Tennessee jury found 58-year-old Janet Hinds guilty of vehicular homicide by intoxication in connection with Chattanooga Police Department Officer Nicholas Galinger’s death.
Back in February of 2019, Officer Galinger was hit by a vehicle driven by Ms. Hinds while he was inspecting a manhole in Chattanooga. Officer Galinger was taken to a local hospital
3. Tenn. Code Ann. § 39-13-219 (2022).
and later died. Ms. Hinds left the scene. She was later sentenced to 11 years in prison. Her case is currently being appealed. Ms. Hinds is exempt from paying such restitutions to Officer Galinger’s children since the law was passed after her conviction.
“This law is a tool in the toolbox,” Rose stated. “It’s one aspect, or one additional option that we can use to get folks that have committed these types of crimes to essentially pay restitution to these children that may be destitute without any other compensation.”
Tennessee was the first state to pass such a law, and more than twenty-five states are considering doing the same. In Missouri, however, the law ultimately failed to pass due to concerns that many of those convicted would simply not have the funds to provide such support.
- Stricter Boating Under the Influence (BUI) Penalties for Repeat Offenders – Tenn. Code Ann. § 69-9-219
Under Nicholas’ law, penalties grew harsher for repeat Boating Under the Influence (BUI) offenders in 2022. The law specifies that a prior conviction for BUI must be treated the same as a prior conviction for DUI for purposes of determining punishment for a violation of DUI. With a second offense, a defendant could also lose their license for two years.
After this law went into effect, the Tennessee Wildlife Resources Agency (TWRA) stepped up patrol on waterways across the state. The TWRA stated that “if you are found to be
6. Tenn. Code Ann. § 69-9-219 (2022).
impaired while boating in Tennessee waterways under the influence, you will be charged with BUI, arrested, and taken to jail.”
Nicholas’ Law had the support of the group Mothers Against Drunk Driving, which is lobbying for these changes in other states as well.
- Ignition Interlock Devices Likely Required for Those Charged with DUI and DUI-related crimes—Tenn. Code Ann. § 40-11-118(d)
Effective in July 2022, people charged with DUI, vehicular assault, aggravated vehicular assault, vehicular homicide involving the driver’s intoxication, or aggravated vehicular homicide—will likely be required to operate only a motor vehicle equipped with an ignition interlock device as a condition of bail.
Under this new law, unless the court determines the requirement would not be in the best interest of justice and public safety, the use of an ignition interlock device is a mandatory condition of bail for persons charged with the aforementioned offenses if the alleged offense involved the use of alcohol and one of the following circumstances apply:
- The offense resulted in a collision involving property damage;
- a minor was present in the vehicle at the time of the alleged offense;
- the defendant’s driver license has previously been suspended for a violation of the present law regarding breath and blood tests to determine alcohol or drug content of a motor vehicle operator’s blood; or
- the defendant has a prior conviction of reckless driving, reckless endangerment, DUI of an intoxicant, vehicular assault, aggravated vehicular assault, vehicular homicide involving the driver’s intoxication, or aggravated vehicular homicide.
The new law requires the defendant to submit proof of installation of the device to the district attorney general within 10 days of being released on bail. If the court does not require the defendant to install such a device, the court must include in its order written findings as to why the requirement would not be in the best interest of justice and public safety.
- Transparency in Sentencing – Tenn. Code Ann. § 40-35-210
The new Transparency in Sentencing for Victims Act requires courts to place on record the estimated number of years and months a defendants will actually serve in prison before becoming eligible for release.
The purpose of the bill is “to try to give victims a better understanding of what the sentence will be at the time of sentencing,” said Rep. Michael Curcio, R-Dickson, a co-sponsor of the bill sponsored by House Speaker Cameron Sexton. Rep. Mike Stewart, D-Nashville, wanted to clarify the bill would not impact the length of time of any sentence but simply requires the court to give an explanation of a sentence.
- Truth in Sentencing Act—Tenn. Code Ann. § 40-35-501
The legislation known as “Truth in Sentencing” was passed without the signature of Governor Lee, and it applies to the following offenses committed on or after July 1, 2022: attempted first-degree murder, second-degree murder, vehicular homicide, aggravated vehicular
homicide, especially aggravated kidnapping, especially aggravated robbery, carjacking, and especially aggravated burglary.
This law provides that there will now be no release eligibility for these offenses, and the offender will have to serve 100% of the sentence imposed by the court “undiminished by any sentence reduction credits the person may be eligible to earn.” The earned credits “may be used for the purpose of increased privileges, reduced security classification, or any purpose other than the reduction of the sentence imposed by the court.”
In addition, other offenses such as voluntary manslaughter, vehicular homicide, reckless homicide, criminally negligent homicide, and other listed crimes will have no release eligibility or credit reduction beyond 15%.
Recent Tennessee DUI Cases
- State v. Daniels – face mask requirement did not violate defendant’s right to confront witnesses
In this case, the defendant was convicted of a DUI and several other offenses. At trial, the defendant was required to wear a mask and witnesses who testified were permitted to remove their masks and testify behind a plexiglass barrier. The defendant appealed, in part, on the ground that his right to confrontation was denied when he was made to wear a face mask during the jury trial.
In denying this claim, the Tennessee Court of Criminal Appeals noted that the right of confrontation “is not absolute and must occasionally give way to considerations of public policy and necessities of the case.” The Court reasoned that there was a strong public policy concern
11. Tenn. Code Ann. § 40-35-501(bb)(1)-(2) (2022).
12. Tenn. Code Ann. § 40-35-501(cc)(2022);
underlying this requirement issued by the Tennessee Supreme Court and that federal courts have addressed this issue finding that “requiring participants at trial to wear a face mask due to the COVID-19 pandemic does not violate a criminal defendant’s constitutional rights.” Also, the court noted that every witness that testified against the defendant did so in his physical presence and only his nose and mouth were covered. Therefore, there was not enough evidence that this mask requirement prevented the witnesses from “perceiving [the defendant’s] presence.” Therefore, the trial court’s enforcing an order of the Tennessee Supreme Court did not violate the defendant’s right to confront witnesses.
- State v. Moore—blood draw for medical purposes not subject to the exclusionary rule
In State v. Moore, the Tennessee Criminal Court of Appeals held that blood obtained by a hospital for medical purposes was not the result of “state action,” thus not subject to the exclusionary rule. In this case, the defendant struck a vehicle, injuring two people. She was airlifted to a hospital once she was removed from her vehicle. Once at the hospital, she had her blood drawn as part of routine triage in the emergency room. The officer on the scene did not get a warrant for a blood draw but obtained the defendant’s medical records about a week after the crash. The blood test results indicated a BAC of .176%.
A jury convicted Ms. Moore of vehicular assault, DUI and reckless endangerment. On appeal, in part, Ms. Moore complained about the blood sample drawn by the hospital (without a warrant), being used against her in a criminal trial. The Court of Criminal Appeals found no issue with the use of the blood draw. In affirming the trial court, the court of appeals held that
13. State v. Daniels, 656 S.W.3d 378, 387-88 (Tenn. Crim. App. June 29, 2022).
blood samples obtained for medical purposes are not taken as a result of state action and therefore, are not subject to the exclusionary rule.
- State v. Crass—officer’s failure to activate video not Ferguson violation
In State v. Crass, the defendant was indicted with DUI, DUI per se, and possession of a firearm while under the influence. The defendant moved to suppress the evidence, arguing, in part, that the video evidence of the defendant’s driving was deleted as a result of a malfunctioning recording system in the state trooper’s car. At the suppression hearing, the trooper testified that he thought he began recording the stop by pressing a button on his belt, but ultimately the camera did not activate and continued deleting the rolling video. The trial court granted the motion to suppress and dismissed the indictment, concluding that the loss of video evidence constituted a violation of the State’s duty to preserve potentially exculpatory evidence recognized in State v. Ferguson.
However, the Court of Criminal Appeals reversed, finding that the trial court misapplied Ferguson factors. The Court of Criminal Appeals held instead that the video of the pursuit was never captured and saved. Therefore, the video was not lost or destroyed by the State. The Court of Criminal Appeals reinstated the indictment.
- State v. Crowson – corrupted video not Ferguson violation
State v. Crowson also involves an issue with a police video. In State v. Crowson, the defendant was pulled over while driving a stolen vehicle. After a bench trial, he was convicted of
14. State v. Moore, 2022 WL 1086677 (Tenn. Crim. App. April 12, 2022).
15. State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999).
16. State v. Crass, 2022 WL 17102441 (Tenn. Crim. App. Nov. 22, 2022).
DUI 2nd offense, driving with a suspended license, possession of a weapon while under the influence, and felon in possession of a firearm.
Mr. Crowson filed, among other things, a motion to dismiss under Ferguson, because the officer’s dashboard video from the pursuit, before the traffic stop, had been deleted. At the hearing, police testified that when the video was initially saved to the server, it was “broken up into three different sections,” based on the size of the media file. Two of the video files were corrupted and could not be recovered.
On appeal, the Tennessee Criminal Court of Appeals determined that the State had a duty to preserve the dashcam video and they took the necessary steps to do so, but due to reasons beyond the State’s control, portions of the video were corrupted. Based on the facts, the Criminal Court of Appeals held that the defendant was not entitled to relief because he failed to show the State failed in its duty to preserve the video, failed to demonstrate negligence on behalf of the State, and failed to adequately explain the significance of the lost video.
With the increasing numbers of DUI arrests and the ever-changing law in this area, it is important to consult with experienced attorneys. With decades of experience defending DUI charges in Tennessee and Georgia, the legal team at Davis & Hoss is ready to help individuals facing these allegations. Contact Attorney Lee Davis at firstname.lastname@example.org or by phone at 423-266-0605 for more information.
17. State v. Crowson, 2022 WL 1714941 (Tenn. Crim. App. May 27, 2022).