The proposal, sponsored by Rep. Tony Shipley (R), has already received strong support from both chambers. Last month, the measure was unanimously passed in the Senate with a vote of 32-0. Earlier this week, the bill (HB 2751) also unanimously passed in the House by a vote of 94-0.

Those stopped for drunk driving with minors in their vehicles are already treated more harshly under Tennessee laws. As of January 2012, if a driver is stopped for DUI in Tennessee and a minor under the age of 16 is in the vehicle, the officer is required to take a blood alcohol test of the driver. If a person is convicted of DUI in Tennessee with a person under the age of 18 in the vehicle, the driver receives a mandatory minimum sentence of 30 days of incarceration and a minimum $1,000 fine.

As lawmakers continue to make efforts to strengthen penalties for Tennessee drunk driving offenses, it is more important than ever that drivers arrested for DUI know their rights and potential defenses. An experience DUI attorney can provide further guidance.

Source: News Channel 9, "DUI proposal headed to governor," April 17, 2012.

Rule 5 of the Tennessee Rules of Criminal Procedure outlines the right to have a preliminary hearing in our state.

Jerry Summers believes it is legal malpractice to waive a preliminary hearing in General Sessions Court...except under extraordinary circumstances.

The United States Supreme Court in Coleman v. Alabama (1970) and the Tennessee Supreme Court in McKeldin have both held that a hearing in a lower court "is a critical stage of the judicial proceedings" wherein the accused is entitled to the effective assistance of counsel and other constitutional guarantees.

1. Reason given: They are usually held at the end of the dockets and they are time consuming.

S&W response: So is a sentence in jail and a lawyer should take the time necessary to provide the client effective assistance of counsel.

2. Reason given: With the Tennessee Rule of Criminal Procedure 16, we can get the discovery evidence in Criminal Court.

S&W response: Said evidence is not obtained while it is fresh, and the Assistant District Attorney has many cases on the docket and said prosecutor in General Sessions Court is normally concerned about getting the case bound over to the Grand Jury in the lower court rather than spend a long time preparing for only one case in Criminal Court several months later.

3. Reason given: "It is going to be bound over to Criminal Court anyway unless the accused pleads guilty."

S&W response: Pinning the officer's testimony down by having it recorded prevents later deliberate or inadvertent changes in testimony that might be significant on a motion to suppress or in trial.

4. Reason given: The officer's affidavit states all the relevant facts.

S&W response: Any facts that benefit the accused such as the basis and reason for the stop, performance on a field sobriety test, medical information for the accused's actions, etc., are not usually put in the affidavit, but can be examined at the preliminary hearing. The officer can be examined at the preliminary hearing to refute the State's evidence and develop a reason for further settlement or trial negotiations in Criminal Court.

5. Reason given: It is just a misdemeanor and doesn't justify spending a lot of time and money on such a minor case.

S&W response: A review of the Tennessee penalties for DUI in the "Collateral Consequences of a DUI Arrest for Conviction" on our website blog above clearly refutes this.

6. Reason given: The District Attorney General isn't going to allow the defendant to settle their case on a reduced charge in the lower courts.

S&W response: This is probably true, but obtaining vital photos and other evidence early on before it is destroyed may prove critical to the accused's defense. A preliminary hearing is the first official court proceeding for a DUI charge or other criminal offense to observe the State's case.

7. Reason given: The accused looks bad on the video and the field sobriety test, and blows over the presumption of intoxication level of 0.08 BAC, so why waste time on these issues?

S&W response: A presumption can be refuted by other favorable evidence, and videos of the defendant in the jail and the EC/IR II breath machine rooms can be obtained at minimal cost within thirty days from the date of arrest, and can be used to contradict or refute the arresting officer's testimony.

P.S. - The Hamilton County Sheriff's Department keeps tapes for only thirty days and you should check with any law enforcement agency using the jail or another facility as to their tape retention policy.

These are only seven erroneous reasons for waiving a DUI preliminary hearing. Many more exist, which should be explored with any attorney you're considering to hire you in a DUI or other case.

     2.  "Just Busted" is a convenience store tabloid that has developed a lucrative business in Tennessee and Georgia by purchasing (or obtaining) mug shots of all persons arrested on any charge, including DUI's, and printing said photos in their weekly publication. A maxim of "innocent until proven guilty" is often overlooked by those reading the latest edition. Many individuals have had their lives and/or careers affected by this unfavorable publicity, even if they are later found not guilty of the charges;

     4.  Admission to certain educational facilities can be affected. Ex: If you are trying to get into medical or law school and there are three academically equal candidates and two have had a prior DUI, which one do you think would be selected for admission?;

     5.  Both public and private employers have varying provisions in their employee handbooks about the effect of a DUI and/or drug conviction ranging from suspension, mandatory drug counseling up to immediate termination;

     6.  Loss of security clearance. For example, the Tennessee Valley Authority and other government agencies have rigid policies in this area, particularly in nuclear facilities;

     7.  Commercial driver's license to become a tractor trailer operator can be revoked, and present and future employment opportunities will be lost;

     8.  Military careers can be affected. The government is reluctant to trust the operation of a multi-million dollar piece of equipment such as Abrams tank or an F-18 fighter jet to a person with a DUI charge or conviction;

     9.  Acceptance into college or a military academy may or may not be affected. The Naval Academy (and others) have strict consequences for a DUI and/or drug conviction or charges;

     10.  The list goes on and on, and will continue to increase as organized groups such as MADD (Mothers Against Drunk Driving) advocate stronger DUI penalties and lower breath/alcohol levels necessary to convict an accused. The National Highway Safety Transportation Administration (NHSTA) receives hundreds of millions of taxpayer dollars and private industry support each year to continue their campaign to save lives and reduce the number of drunk drivers on the roads of America. Benjamin Franklin would probably argue that "when you give up liberty for security, you have neither liberty nor security," but the political climate now is such that legislative bodies make it easier to charge and convict DUI drivers while often ignoring constitutional rights that still are protected in other areas of the law;

     11.  Most attorneys do not go into the collateral consequences described briefly above. There are many more that should be discussed before a decision on how to handle a DUI charge should be made by a defendant and their counsel. As previously stated, the best rule in this area is "don't drink and drive."