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Lawyer Bernie McEvoy

DUI FAQs

Nashville DUI Frequently Asked Questions
  1. Should I Take a Breath Test or Blood Test?
  2. Should I Take Field Sobriety Tests?
  3. Do I Have a Right to Consult With an Attorney Before Deciding Whether to Take a Breath Test or Blood Test?
  4. If a Police Officer Asks Me if I Have Been Drinking What Should I Say?
  5. What Should I Do if I Am Stopped for a Traffic Offense and the Officer Asks Me to Step Out of the Vehicle to Take Some Tests?
  6. Should Police Have Advised Me of My Miranda Rights?
  7. What is the Penalty for DUI?
  8. May I Obtain a Restricted License?
  9. What Can an Attorney Do for Me?
  10. I Have Been Arrested and Charged With DUI? Can I Avoid a Conviction?
1. Should I Take a Breath Test or Blood Test?

Answer: Take a breath test or blood test only if you are certain that you will register under the legal limit (.08 percent), that is, only if you have consumed two or fewer alcoholic beverages. And don’t even think about taking it if you have been drinking Long Island Iced Teas or other drinks that contain multiple shots of liquor.

Why?

If you think you might register over the legal limit, then your focus should be on avoiding a DUI conviction. By declining to take the potentially incriminating test, you improve your chances of avoiding a DUI conviction.

You will be charged with violation of the implied consent law. But this is not a criminal charge. If you are found to have violated this law, you cannot be fined or jailed. The only punishment is a one-year license revocation. And you will be eligible for a restricted license.

DUI is a criminal offense. If convicted of DUI, the conviction will be on your record for the rest of your life. The DUI charge is more serious than the implied consent violation. You should refuse the chemical test and improve your chance of avoiding a DUI conviction.

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2. Should I Take Field Sobriety Tests?

Answer: No. Do not take these tests. Many law enforcement officers use three field sobriety tests:

  • Horizontal gaze nystagmus test (HGN)
  • Walk-and-turn test
  • One-leg stand test

These tests sound simple. They are not. Consider the walk-and-turn test. If administered correctly, the officer should give you the following instructions:

  • Stand here (pointing to a specific location);
  • Stand with your right foot in front of your left foot;
  • Your right heel should be touching your left toe;
  • Keep your arms at your side;
  • Do not move from this position until I tell you to start;
  • When I tell you to start, take nine steps;
  • Walk on a straight line;
  • Walk without stopping;
  • On each step, touch the heel of your front foot to the toe of your back foot;
  • Count out loud;
  • Keep your arms at your side;
  • When you reach the ninth step, plant your left foot;
  • Turn in a counter clockwise direction;
  • Take small steps with your right foot as your turn;
  • Take nine steps back to the starting point in the same manner.

This test is so complicated that most people attempting it for the first time will have difficulty following instructions and will make numerous errors. Unlike with a breath alcohol test or blood alcohol test, there is no penalty for refusing to take these tests.

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3. Do I Have a Right to Consult with an Attorney Before Deciding Whether to Take a Breath Test or Blood Test?

Answer: You do not. Further, if you do not respond to the officer’s request that you consent to a chemical test, this will be regarded as a refusal to take the test.

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4. If a Police Officer Asks Me if I Have Been Drinking What Should I Say?

Answer: If you have been drinking, the best answer is: Officer, I am not answering any questions. Under the Fifth Amendment to the United States Constitution, you have a right to remain silent. If you choose to exercise that right and not answer questions, your silence may not be used against you if the case were to go to trial.

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5. What Should I Do if I Am Stopped for a Traffic Offense and the Officer Asks Me to Step Out of the Vehicle to Take Some Tests?

Answer: If you have consumed alcohol, the safest thing you can do is say, Officer, I do not mean any disrespect, but I am not going to answer any questions. I am not going to attempt any field sobriety tests. I am not going to take a breath or blood test.

In all likelihood, you will be arrested and charged with DUI. However, you are not providing police and prosecutors with evidence to use against you. By denying them this evidence, you increase the likelihood that you will avoid a conviction for DUI.

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6. Should Police Have Advised Me of My Miranda Rights?

Answer: In general, the answer is no. Police are required to advise a person of his or her Miranda rights when that person is in custody and is being interrogated about a criminal offense.

In the ordinary traffic stop, a police officer stops a motorist and asks a few questions, such as do you know why I stopped you? Or have you been drinking tonight? Police are permitted to ask those questions. At that point, the motorist is not in custody.

However, if you have been arrested, then the officer must advise you of your Miranda rights before questioning you. If he does not, then your answers to those questions may be excluded from evidence at your trial.

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7. What is the Penalty for DUI?

Answer: In Tennessee, the mandatory minimum penalty for DUI (first offense) is:

  • $350 FINE plus court costs
  • 11 months and 29 days in jail, suspend all but 48 hours
  • 11 months and 29 days probation. Conditions of probation include:
    • don’t get re-arrested
    • report to a probation officer as directed
    • complete a 16-hour alcohol safety school
    • complete 24 hours of litter pickup
    • one-year license revocation (eligible for restricted license)
  • In addition, persons convicted of DUI are required to maintain SR-22 insurance for five years.

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8. May I Obtain a Restricted License?

Answer: Yes. Under the law in Tennessee, all persons convicted of DUI even persons convicted of multiple offenses may obtain a restricted license. However, must people must obtain what is known as an “ignition-interlock restricted license.” They must rent an ignition-interlock device and have it installed on their vehicle. They may not drive a vehicle unless it is equipped with an interlock device. However, in return, they are permitted to drive 24 hours a day, seven days a week, 365 days a year with no geographic limitations.

Some people are still eligible for the traditional form of restricted license, that is, a license that allows them to drive to and from work only. They are not required to have an ignition interlock device. Who is eligible for this form of restricted license? In general, people are eligible for it if they did not take a chemical test or if they registered under .08 percent on a breath-alcohol test or blood-alcohol test.

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9. What Can an Attorney do for Me?

Answer: An attorney may be able to help you avoid a conviction for DUI.

Here are some of the things an attorney should do to maximize your chances of avoiding a DUI conviction:

  • Meet with you for 60 to 90 minutes. At this meeting, an attorney should discuss the facts of your case, your goals for the resolution of your case, any possible defenses you may have; any health or medical issues that may affect your ability to perform field sobriety tests; and your background. In addition, your attorney should answer your questions about the law, the criminal justice system, and the possible outcomes of your case.

  • Obtain information. Prior to court, an attorney should obtain as much information as possible, including limited to: arrest reports; the video of your arrest if there is one; the accident report if there is one; the results of any blood alcohol test; and any hospital records, medical records or other records that are relevant. In addition, there may be evidence that was not collected and preserved by police that is helpful to the client. An attorney should identify such evidence and then collect it and preserve it.

  • Visit the scene. In many cases, it may be appropriate for an attorney to visit the area where the initial stop was made and the area where field sobriety tests were done. Further, it may be appropriate to photograph or videotape these areas.

  • Examine the validity of the initial stop. To stop a moving vehicle, law enforcement officers must have probable cause to believe that the motorist is committing a traffic offense or a criminal offense. If the stop is not based on probable cause, then all evidence obtained as a result of that stop should be suppressed. An attorney should examine the basis for the initial stop.

  • Examine whether other pre-trial motions are appropriate. In some cases, the initial stop may be valid, but the subsequent arrest may not be supported by probable cause. In some cases, a client’s statements to police may have been obtained in violation of his rights. An attorney should look at whether any evidence obtained by police was obtained illegally and should be suppressed.

  • Prepare for settlement discussions. An attorney should prepare a strategy for presenting your case to the assistant district attorney and seeking either a dismissal of the charge or a plea to a reduced charge.

  • Prepare for trial. If you are not able to attain your goals through negotiation or plea-bargaining, you may wish to try your case in front of a jury. If so, you need an attorney with skill and experience to represent you in court.

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10. I Have Been Arrested and Charged with DUI? Can I Avoid a Conviction?

Answer: Maybe. It depends on the facts of your case.

A few things to consider:

In some jurisdictions in Middle Tennessee, the district attorneys have a no-negotiation policy with regard to DUI cases. In these jurisdictions, plea bargaining is rare. In Davidson County, there are some 5,000 to 6,000 DUI cases each year. There, due to the enormous number of cases, prosecutors must resolve some cases through negotiation of plea bargaining.

In general, the stronger the State’s case is, the less likely a prosecutor is to allow a plea to a reduced charge. Conversely, the weaker the State’s case is, the more likely a prosecutor is to allow a plea. Therefore, an important part of a defense attorney’s job is to persuade the prosecutor that the State’s case isn’t as strong as it appears on paper.

By hiring an experienced, knowledgeable and committed attorney, you certainly increase the likelihood that you will be able to avoid a conviction for DUI.

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