Most people have a basic understanding of their rights and the procedures that must be followed in the event they find themselves under arrest on suspicion of driving under the influence.
For instance, most people know that the arresting law enforcement official must have had probable cause to place them under arrest, must read them their Miranda rights and must give them an opportunity to speak with an attorney.
However, it’s important to understand that there are other procedures which law enforcement officials are bound to follow when making DUI arrests.
By way of illustration, consider Rule 3 of the Tennessee Rules of Criminal Procedure, which mandates that arrests must be accompanied by an affidavit that meets the following requirements:
- It must be in writing.
- It must be made based on an oath taken before a magistrate or neutral court clerk authorized to make determinations of probable cause.
- It must set forth the essential facts of the alleged criminal offense.
Interestingly, law enforcement officials in Sullivan County are now under fire for failing to meet this second requirement during late-night DUI arrests, taking an oath before a notary public instead of a magistrate or neutral court clerk. Indeed, reports indicate that this may have been going on for at least two decades.
The issue came to the attention of the local court earlier this year and resulted in several dismissals. Since that time, a multitude of defendants with pending DUI cases have filed motions for dismissal, while law enforcement has been busy re-filing thousands of affidavits.
In the wake of the dismissals, the District Attorney General for Sullivan County filed an appeal, which will be argued by the state Attorney General’s Office. Furthermore, the Sullivan County Commission recently voted to fund positions for four magistrates, who will be available after hours — night, weekends, and holidays — to meet with officers and provide the necessary probable cause determination.
Stay tuned for updates on this important case.
If you have been arrested for DUI, consider speaking with a skilled legal professional as soon as possible to help ensure the protection of your rights and your reputation.