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VOL. 37 | NO. 12 | Friday, March 22, 2013

Tennessee Supreme Court agrees to hear DUI test case

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NASHVILLE (AP) — The Tennessee Supreme Court has agreed to take a case that could determine whether police can arrest people suspected of driving drunk after they pass field sobriety tests.

The case involves a 2009 DUI charge in Sevier County that was dismissed because driver David Dwayne Bell passed six field sobriety tests.

So far, three Tennessee courts have found that police lacked the probable cause to arrest Bell and order a blood-alcohol test, which showed he was drunk. When police have probable cause, it means they must have enough evidence to show that it is more likely than not that a person committed the crime.

The Tennessee attorney general's office asked the Supreme Court to hear the case. Its decision could determine how to factor in field sobriety tests when there's little or no other evidence of drunken driving.

Bell's attorney, Sevierville lawyer Bryan Delius, said police had probable cause to pull his client over for a traffic violation after police caught him driving on the wrong side of the road in Sevierville and even ask Bell to do the tests. But he maintains that the grounds to arrest Bell vanished after he passed the tests. They included having Bell stand on one leg while counting to 30, identifying the year he had his 5th, 6th and 7th birthday and saying the alphabet from letters G through S.

"He could not have performed any better on these field sobriety tests," Delius said.

The lawyer maintains that prosecutors and police want to have it both ways: "How can they say, 'These are outstanding tests,' use them on a daily basis and then turn around and say you should completely ignore them when somebody does well on them?"

A spokeswoman for Tennessee Attorney General Bob Cooper wouldn't comment beyond saying state lawyers are awaiting direction from the Supreme Court, which accepted the case last week but hasn't yet set arguments. Sevier County Assistant District Attorney General Greg Eshbaugh, who prosecuted the case, said he could not comment.

Court records show that after Bell was stopped, he admitted to drinking earlier but said he realized he had made a wrong turn and tried to correct himself right away. A Sevierville officer who administered the field tests testified that Bell performed well on them, but he believed Bell was drunk.

A blood test revealed that Bell had 0.15 percent blood alcohol — nearly twice the legal limit, an official with the Sevier County Circuit Court Clerk's office said.

Records show that Sevier County Circuit Judge Rex Henry Ogle said he couldn't have performed better on the tests than Bell did, even sober. The judge said Bell committed a serious driving infraction, but said that there had been construction in the area and other drivers had been confused and made the same mistake.

As a result, Ogle refused to allow the results of Bell's blood test into court, ruling that it was the result of an unlawful arrest and the evidence had been illegally obtained. A General Sessions Court had earlier dismissed the case for the same reason. The Tennessee Court of Criminal Appeals agreed.

"The state is not required to perform field sobriety tests on an individual prior to arresting him or her for driving under the influence," Tennessee Court of Appeals Judge John Everett Williams wrote in the ruling. "However, if the state chooses to administer such tests, it may not simply disregard the results if the individual involved performs them successfully."

Advocates for tougher DUI enforcement are concerned about that ruling.

"I think we have to protect the rights of individuals, even offenders, but we also have to protect the rights of innocent victims," said Dave Brown, a meteorologist with WMC-TV of Memphis whose daughter, granddaughter and unborn grandson were killed by a drunk driver. Brown believes police ought to have a variety of tools at their disposal when determining whether someone is driving drunk.

"If he passes a breathalyzer test, then maybe I'm going to agree that you don't have the authority to draw blood, but up until that point, it looks to me that all the tools should still be on the table."

Others say it's just as important that people's rights be protected.

Ed Ryan, a Nashville attorney who represents many DUI cases, says if police don't have probable cause to make an arrest, then innocent people are going to pay the price and wind up being arrested, shamed and forced to go through the criminal justice system.

"You don't just throw away a person's constitutional right not to be arrested just because it's a DUI case," Ryan said.