All law is full of technical requirements. For instance, contract law has elements of a contract that must be present in order for there to be a valid contract. There are similar elements necessary for an arrest or traffic stop to likewise be valid.
One County in Tennessee has found that an error in their process of handling late-night and weekend drunk driving arrests does not comply with state law. The failure to follow the proper procedure can result in invalidating DUI arrests. The judges in the county found out that the county’s method processing these after-hours arrests is improper and could lead to DUI charges being dismissed.
The problem stems from the county’s use of notaries who are the employees of the police or sheriff’s department. However, Tennessee law requires that the affidavit be sworn before the “neutral and detached” magistrate or clerk, and an employee of a police department cannot be viewed as being “neutral.”
One judge stated that there were about 80 DUI cases that were deficient and potentially subject to dismissal. At the commissioner’s meeting, no one seemed to know how the flawed procedure was started, but a judge pleaded with the county commissioners to quickly remedy the situation and hire independent magistrates to staff these hours.
For DUIs, it is important that all counties have proper procedures in place for weekends and late nights, as that is likely when many DUI arrests occur. One Commissioner recognized the importance of using proper procedure, and he commented, “This is not just housekeeping.”
If you have been arrested on a DUI charge, you attorney should carefully review all elements of your arrest, to ensure that there were no “short cuts” and that all state and federal constitutional procedures were followed.
Source: timesnews.net, “‘Deficiency’ in Sullivan criminal process comes to light after 20 years,” J.H. Osborne, June 14, 2-15