It remains to be seen whether prosecutors will be able to prove Rep. Curry Todd was impaired when he was arrested in Nashville this month on suspicion of drunk driving and unlawfully possessing a firearm.
But if the police affidavit filed after the arrest is accurate, the Shelby County Republican lawmaker violated a state law that requires motorists to submit to a blood-alcohol content test when asked to by law enforcement officials.
Todd, formerly a Memphis cop and lobbyist for the state Fraternal Order of Police, is charged with violating Tennessee’s “implied consent” law when he refused the officer’s request that he blow into a breathalyzer. But from the standpoint of avoiding self incrimination, aside from admitting he consumed “two drinks,” Todd handled his drunk-driving arrest skillfully — especially for somebody who may suspect he’s over the legal limit but doesn’t want to hand a prosecutor all the evidence needed for an easy conviction.
“If you’re driving, I wouldn’t admit to anything,” said Rob McKinney, the incoming president of the Tennessee Association of Criminal Defense Lawyers and a Nashville DUI attorney who blogged about Todd’s arrest. “You have the right of the Fifth Amendment. It’s better to not say anything than to lie to a police officer.”
While every case is different, defense attorneys generally advise against agreeing to field sobriety and blood alcohol content tests as long as the driver is willing to give up his or her license for a year in exchange for giving prosecutors a tougher job seeking a DUI conviction.
McKinney, who questions the accuracy of sobriety tests, said anything from having bad knees, being overweight and being tested on crooked and poorly lit ground could throw off how drivers perform on the field sobriety tests while technical problems with machinery can impact the results on chemical tests.
“I think there’s too much discretion left to police officers to ask somebody to submit to a blood or breath test,” he said.
Drivers who violate the “implied consent” law by refusing sobriety tests risk suspension of their driver’s license for a year — even if the driver is ultimately acquitted of driving under the influence of drugs or alcohol charges, according to state law.
According to the National Highway Traffic Safety Administration, 20 percent of drivers suspected of drunk driving refuse to take a breathalyzer or blood alcohol content test.
Tennessee’s 1969 law has grown stronger over the years, including this spring when Todd and the General Assembly voted almost unanimously to force suspected drunk drivers to take the tests if the driver has a DUI on record or a child was in the vehicle at the time of the stop.
Todd has refused to comment about the details of his Oct. 11 arrest or his decision to step down as chairman of the House State and Local Government Committee aside from e-mailed statements to the media saying he has been advised by his lawyer not to give further comments.
According to a police affidavit, an officer read Todd the implied consent law. Todd then “stated that he understood and subsequently refused to perform a breath alcohol test,” according to the affidavit.
In the last budget year, Tennessee recorded 2,241 convictions of drivers who rejected the tests and 22,119 DUI convictions. Those numbers include convictions of Tennesseans across state lines and out-of-towners convicted in the Volunteer State.
The total number of “implied consent” convictions is down over the last four years after hitting a high of 2,750 convictions in the 2006-07 fiscal year. The total number of DUI convictions has also dropped by 6,000, or 21 percent, in the last four years.
“We don’t think it’s right that the best evidence in a DUI situation can be suppressed by the defendant automatically,” said Guy Jones, deputy executive director of the District Attorneys General Conference.
“If you committed any other crime and we wanted to get a fingerprint or a hair sample or something, DNA, we could get that. Whereas in a DUI situation, if a person can avoid not being tested for several hours, then we lost what was the best evidence,” he said.
Chris Dye, a DUI enforcement training instructor for the Tennessee Highway Patrol, said he’s had more people refuse to take sobriety tests than agree in the last few years.
“A lot of these professional drunks, these ones with multiple DUIs, they’re used to refusing,” he continued, adding he’s looking forward to tougher implied consent laws. “It’s been dismissed more than it’s been enforced, and it really hasn’t served the purpose it’s been intended for.”
There’s a push within Gov. Bill Haslam’s administration to fix issues like that as a team of commissioners plan to “completely” rewrite the state’s DUI laws.
“Driving is a privilege, not a right, and I think every driver needs to understand that,” said Bill Gibbons, commissioner of the Department of Safety and Homeland Security and former district attorney in Memphis. “If you don’t obey the law, you can lose that privilege.”
The working group of commissioners from the departments of Safety and Homeland Security, Correction, Military, Tennessee Bureau of Investigation and the Tennessee Highway Patrol expected to send Gov. Bill Haslam a rough draft of their recommendations last week, Gibbons said.
“If you read it, it’s a patchwork law at this point, and it’s very complicated. A lot of exceptions to general rules and so on. We just need to go through, rewrite it, simplify it, streamline it,” he told TNReport.
“They’re very complicated, they’ve been amended here and there over many years. So what we’re looking at is really a rewrite of our DUI laws to simplify them, make them understandable not only to DUI officers but to the public as well,” he said.
Gibbons said it’s still up in the air as to whether the recommendations will include an overhaul of the implied consent law.
“I don’t want to get ahead of the curve on that,” he said.
House Speaker Beth Harwell said Todd’s decision to refuse a breathalyzer test didn’t factor into her talks with him about standing down from his leadership post.
“I had not given that thought. I was most concerned with what is best for the General Assembly as a whole,” she said. “I had not looked into any of the particulars of his charges.”