Loophole in Tennessee’s Drunk Driving Law Under Scrutiny

A newspaper investigation has found that Tennessee has a loophole in its drunken driving law.

The Commercial Appeal reported that a person could potentially spend more time in jail for driving drunk and getting pulled over than for causing a fatal accident while driving drunk. The newspaper found at least three offenders who have avoided jail time in Shelby County.

Meanwhile, the state’s law for first offense drunken drivers is among the toughest in the nation, requiring jail time of at least 48 hours.

“That’s ridiculous,” said Nashville attorney Tom Kimball, who trains prosecutors and police officers on DUI laws. “That’s a horrible loophole.”

However, Florida attorney Flem K. Whited III, who has written about DUI laws nationwide, said Tennessee’s law makes sense as it is. “I think Tennessee has it right,” Whited said. “The judge ought to be able to make a valued determination of the sentence that is appropriate for the person in front of him.”

Tennessee judges have to look at 24 factors in deciding the fate of a fatal crash involving drunken drivers. One of the indicators often is the desire of the victim’s family, Kimball said.

But Tennessee’s law with the possibility of full probation “is an anomaly,” according to Victor Carmody Jr., a DUI attorney. “I just don’t know of any other place where that happens,” he said.

Public records show one drunken driver was sentenced to probation at the request of the victim’s daughter. The man was put on probation and hasn’t been arrested since.

A judge will soon decide whether it will happen again. Benjamin Sargent is scheduled to plead guilty to drunk driving in a crash that killed a woman. His attorney said he’ll argue for probation for Sargent.

Prosecutor Stephanie Johnson said she will oppose the request. “I’m obviously concerned that he’ll get probation because the law allows him to ask for it,” she said. “There’s a complete disconnect with a DUI driver – where the law requires at least some jail time – and a vehicular homicide, where the law doesn’t require jail time.”

Relatives of the victim have asked for jail time while the defendant’s supporters have written to request mercy.