Chapter 1: DUI Myths You May Have Heard
1. If I refused a test I automatically lose my license, there is nothing I can do.
False. That is not the law, but police officers, the general public, and even many lawyers believe this myth. We’ll address it in more detail later. In short, you are entitled to a preliminary hearing on the implied consent charge that will determine whether you lose your license. The implied consent charge can be dismissed in General Sessions Court or, if it is not dismissed in General Sessions, it can be appealed to Circuit Court. Implied consent charges can be dismissed for a multitude of reasons that will likely be determined based on the testimony of the arresting police officer at your preliminary hearing in General Sessions Court.
2. If my blood or breath test is over the legal limit, I am automatically guilty.
False. Similar to the refusal myth, many people cannot imagine how they might not be found guilty if their BAC is over the legal limit. If this myth were true, we would just sit back and wait for the blood test to come back and there would not be any need for fighting in court. You would just plead guilty and receive the maximum 11 months and 29 days in jail. That is not how we do things. Don’t believe this myth. We can help you regardless of whether your blood or breath test came back over the legal limit.
3. The more the lawyer charges the better they must be.
There is a relationship between a lawyer’s fee and their expertise, but it is not direct. A fee is influenced by supply and demand, level of expertise and years of experience, and also by factors that make no difference to your case such as how much a lawyer spends on offices, staff, and advertising. At the end of the day, you should choose the attorney that makes you feel the most comfortable and confident in fighting for you.
4. The court system treats everyone equally and every case is decided based solely on its merits.
This is ideal but unfortunately it is not reality. Like every other system in the world, the justice system consists of people who are not 100% perfect. Case outcomes depend on many factors and factual guilt or innocence is just one of those.
5. I really am innocent, so I do not need a lawyer.
False. Innocent people get charged with crimes more often than we would like to think. Many are understandably upset at the expense, embarrassment, and inconvenience of being charged with a crime they did not commit. Unfortunately, rarely would these people be able to win their cases without professional representation. A lawyer has the ability to discuss your case with the assistant district attorney assigned to your case to advocate your innocence effectively in a way that will generally be more effective than you speaking to the assistant district attorney directly.
6. I have never been arrested before, so this will not be that difficult.
Most people charged with DUI have no prior record. It is an unusual crime in that respect. Having no prior record is a good thing and can aid an attorney in negotiating your case, but it will not get you very far in winning your case alone.
7. The court will give me a lawyer, so I do not need to hire one.
You have a right to an attorney. The court will give you a lawyer if you qualify as indigent. Whether you qualify is up to the judge who would have to find you “indigent” based on your sworn financial statement. There are many good lawyers working as public defenders, but even the best public defenders will have a much larger case load to focus on than private attorneys. Generally speaking, a private attorney will likely have more time to give you personalized attention and be able to take the time to explain the process to you in more depth.
9. I was not even driving the vehicle, how can I be guilty of DUI?
Driving is not actually a requirement for someone to be charged and convicted with driving under the influence, despite the name of the offense. Many people have been arrested hours after having had anything to drink, while sleeping in a car in a private parking lot, or even while walking in a parking lot outside of the car. While these situations do present many possible legal and factual defenses, those situations can result in you being charged with a DUI. For example, one reported case in Tennessee involved a man who was convicted of DUI while he walking towards his motorcycle in a Walmart parking lot with a replacement part in his hand to fix his motorcycle before the driver was even able to drive away.
Tennessee law makes it illegal to be in physical control of a motor vehicle under the influence. This leads to a complicated question that a DUI lawyer can answer, what does it mean to be in physical control of a motor vehicle. The Tennessee Supreme Court attempted to answer that question in its decision in State v. Lawrence. In the case before the Tennessee Supreme Court, Mr. Lawrence was found asleep behind the wheel of his truck, leaning towards the passenger side. The engine was off and the keys were in his pocket. He was alone. He was found guilty of DUI from being in physical control of the truck and the Tennessee Supreme Court upheld his conviction.
In short, the court determined that if the car could have been immediately placed into motion or could have been placed into motion without much effort such as getting a tank of gas from a nearby gas station, then the driver is in physical control of the vehicle. However, these types of cases are very fact specific, and a skilled DUI attorney can help explain your case towards a successful disposition of the charges against you.
8. I was only using prescribed medication, not illegal drugs or alcohol, so I am not guilty.
Prescription medication DUIs are becoming extremely common. There are many reasons for this, including doctors writing more narcotic and scheduled prescriptions and police officers being taught to be on the lookout for drivers using prescription drugs. There are often very good defenses to these cases. However, the law makes no distinction for illegal versus prescribed drugs and having a prescription, by itself, is not a defense to DUI by prescription drugs. The ultimate question in prescription drugs cases is whether your driving behavior, interactions with the police and any field sobriety tests that you may have conducted proves beyond a reasonable doubt that those prescription drugs resulted in you driving a vehicle while impaired.
Attorney At Law, Managing Partner
Brandon D. Fersten is an esteemed Knoxville attorney practicing DUI, criminal defense, and juvenile law. Known for his empathetic approach and commitment to his clients, he brings a record of favorable case outcomes including dismissals and not guilty verdicts at jury trials resulting in Brandon being recognized as one of the “Top 40 Under 40” in Criminal Defense, U.S. News’ Best Lawyers: “Ones to Watch,” and Super Lawyers’ “Rising Stars”. Brandon’s professional accolades, combined with his passion for justice, position him as a reliable criminal defense advocate in the East Tennessee legal landscape, including Knox County, Blount County, Sevier County, Loudon County, Roane County, Anderson County, Cumberland County, Hamblen County, Monroe County, and McMinn County.
