Experienced DUI Defense Lawyer

If you or your loved one is facing a DUI charge in Memphis, Tennessee, it can be an overwhelming experience. You need an experienced defense attorney to protect your rights and work for the best possible outcome. 

Phil is a trusted DUI defense lawyer with years of experience in helping clients navigate the complexities of defending misdemeanor and felony DUI accusations.

Whether you feel embarrassed because you think you’re guilty, or you feel outraged because you’re one of the eighty or more people who get arrested every year in Tennessee while driving sober, Phil can help chart a path forward. 

Why Should You Hire Phil Harvey Law?

With more than eight years of experience handling DUI cases ranging from misdemeanors to felonies, Phil has a deep understanding of the legal system and the strategies necessary to defend his clients and guide them through an intimidating process. From the moment he accepts a case, Phil aggressively advocates for his clients’ rights and works tirelessly to achieve the best possible result in their cases. As a result, his firm’s services are time-consuming and focused, and he cannot accept every case. 

As you consider which law firm is right for you, consider three reasons for hiring Phil. 

1. Personal Attention to Your Case

Phil launched his firm in August of 2023 with a mission to build a team of legal professionals who believe in compassionate, personalized service. When you work with Phil Harvey Law, you can expect clear communication and individualized attention. Phil and his team will take the time to listen to your concerns, explain your legal options, and create a defense strategy tailored to the specifics of your case. 

2. In-Depth Knowledge of DUI Laws and Defense Strategies

DUI laws in Tennessee are complex, harsh, and frequently changing. Phil is always monitoring how the latest appellate court decisions impact your Constitutional Rights and legal defenses. And he has an in-depth understanding of the science behind DUI arrests, including Standardized Field Sobriety Tests and blood alcohol testing procedures. This focus allows him to challenge the evidence and build a strong defense on your behalf.

3. Pragmatic and Aggressive Defense to Protect Your Future

A DUI conviction in Tennessee is permanent. It can never be expunged, and it can have long-lasting consequences. It will affect your driver’s license, it can impact your career, and it carries mandatory jail time. Phil is committed to fighting for your future. Whether through pragmatic negotiations with the prosecutor or vigorous oral advocacy in the courtroom, Phil will work tirelessly to dismiss the charges, reduce the penalties, or secure alternative sentencing options. 

DUI Defense Services Offered

Phil Harvey Law provides a full range of DUI defense services, including:

• DUI Arrest Defense - Challenging the arrest procedures, blood tests, breath tests, and field sobriety tests.

• License Suspension Defense - Protecting your driving privileges, applying for restricted driver’s licenses, and appealing Tennessee Department of Safety suspension decisions.

• Second or Subsequent DUI Defense - Defending clients facing multiple DUI charges, including Felony DUI and Vehicular Homicide. 

• Underage DUI Defense - Representing minors accused of DUI and minimizing the consequences. 

• Drugged Driving Defense - Defending clients accused of driving under the influence of drugs, whether prescribed, over-the-counter, or illegal substances.

Did You Drive Sober - And Still Get Pulled Over?

Even if you’re completely sober, any traffic stop can turn into a DUI investigation. One Nashville news station found that more than 600 sober Tennessee drivers were arrested for DUI during a seven-year period.

What to Do when Police Say, “Have You Been Drinking?”

Whether you're behind the wheel, parked at a gas station, or standing in a parking lot, you don’t have to answer that question. There are three phrases I recommend you recycle as many times as needed, in as many variations as you want:

1. Am I free to leave? (Or, am I under arrest?)

2. I’d rather not answer questions without a lawyer.

3. No, thank you.

Here’s how that might look in a real encounter:

“Have you been drinking, ma’am?”

“Am I under arrest?”

“No. Look. It’s a simple question. You’re not under arrest right now. Just want to know, have you had anything to drink?”

“If I’m not under arrest, I’d like to leave now.”

“Hang on. I’m just trying to ask you a few simple questions to see if you’re ok to drive, ok?”

“Am I free to leave?”

“Not yet. Just answer my questions and let’s see.”

“If I’m not free to leave, I’d like to have a lawyer with me before I answer any questions.”

Now, look: don’t be rude. You should state your name. You should answer any other identifying questions. Beyond that, you can politely and respectfully tell them you don’t want to answer questions without a lawyer. 

Specifically, if a police officer asks you how much you’ve had to drink, remember three things:

1. You can be arrested and found guilty of DUI simply for having car keys in your pocket. This is because Tennessee defines DUI as driving or being “in physical control of any automobile or other motor driven vehicle” while under the influence of alcohol or other intoxicants. 

2. Police must have “probable cause” to suspect you of DUI before they can arrest you or ask for a blood or breath test.

3. If you answer questions, you might accidentally give them the probable cause to arrest you.

What is “Probable Cause” in a DUI Case?

In Tennessee, and throughout the United States, an officer cannot arrest you for DUI unless the officer involved in your investigation has personally observed enough clues to form a “reasonable suspicion” of two things: (1) that you were operating (or in physical control of) a motor vehicle; and (2) that you were under the influence of an intoxicant. 

This is not the same “beyond a reasonable doubt” standard for convicting you at trial. This is a lower standard for arresting you.

“Probable cause” is the legal standard for determining how many clues are enough to form a reasonable suspicion. One classic case of American jurisprudence puts it like this:

Probable cause exists where the facts and circumstances within the officers knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (citations omitted). 

If the officer does not gather enough clues, then the officer does not have probable cause.

If the officer does not have probable cause, then the officer cannot legally arrest you, nor can the officer legally require you to give a blood or breath sample. If the officer does take your blood, or take your breath, or arrest you without probable cause, then your defense lawyer can ask the judge to throw out the whole case.

Be careful, though. Even if the officer did not have probable cause at the beginning of the encounter, your words, your answers, your behavior, or your consent to perform Field Sobriety Tests can given the officer probable cause, even if you’re completely sober.

In a DUI investigation, the officer’s probable cause is usually based on three categories of observations: 

1. Observations of you driving, in the driver seat, or near a motor vehicle. 

2. Observations of how your car moved while you were driving it. 

3. Observations of how you speak, smell, look, and behave during the encounter.

In Tennessee, as in most states, officers are trained to ask you questions designed to give them probable cause to arrest you, and they are trained to make it seem like you are required to answer their questions or perform their so-called “Field Sobriety Tests.” 

What Should You Do if an Officer Asks You Out of your Car?

You should always obey an officer’s orders, even if you don’t believe they are lawful. Your personal safety depends on it.

Unfortunately, many law enforcement officers will often present their orders as if they are requests, and vice versa. This is where things get sticky.

If an officer makes a clear request, you can simply say, “No, thank you.”

“Would you like to step out of the vehicle for a moment and talk?”

“No, thank you.”

If you’re not sure whether the officer is making an order or request, it’s usually a good idea to clear that up.

Remember, the officer’s body worn camera is probably recording the interaction. If the officer makes a request, and you cooperate, then a judge might conclude that you consented to the search or seizure, and this will undermine your constitutional protections. On the other hand, if you clarify that the officer is ordering you to do something, then you’re establishing on camera that you did not have a choice, and you could not consent. This will increase the opportunity for your lawyer to invoke all of your constitutional rights.

Here’s how that might look:

“Step out of the car, please.”

“Is that an order?”

“Yes! Out of the [explitive] car! Now!”

“Yes, sir.”

This can be a frightening situation.

Some officers will very quickly escalate a situation. It’s rude, reckless, and it’s not good policing. But it happens. When they start shouting at you, you should cooperate. Remain calm, and cooperate with them fully.

But remember, even if you comply with their orders, you still do not have to answer questions.

In the example above, simply by asking, “is that an order?” you can establish, often on camera, that you did not consent to the search and seizure. This doesn’t mean you will automatically win your case, but it does keep the possibility alive for a Motion to Suppress the evidence against you.

On the other hand, if it looks like you consented to the search and seizure, then it will be much harder to protect your rights in court.

What Are Field Sobriety Tests?

First of all, they are not tests. There is no way to “pass the test,” and you don’t get any credit for doing them correctly. 

Furthermore, even if you perform your Field Sobriety Tests (”FST”) perfectly, you can still get arrested. Remember, the probable cause standard is very low. So don’t think you can “pass the tests and go home,” even if the officer tells you so. 

Instead, FST are physical activities designed to give the officer “clues” of your impairment. After the police gather enough clues of impairment, they are deemed to have probable cause to suspect you of DUI, even if your driving was normal before they pulled you over. 

There are three main categories of FST:

• Standardized Field Sobriety Tests - Three FST that have been deemed “standardized” by the National Highway Safety Administration: the Horizontal Gaze Nystagmus, the Walk-and-Turn, and the One-Leg Stand.

• Eye Exam FST - Several non-standardized FST have been developed, supposedly with the idea that they can allow a more highly trained officer to determine what type of non-alcoholic intoxicant a driver may have ingested. These include the Vertical Gaze Nystagmus, the Lack of Convergence Test, and a simple Pupil Size comparison and dilation.

• Psychological FST - In addition to the Walk-and-Turn and One-Leg Stand tests, some officers will ask drivers to perform non-standardized FST known as the Modified Romberg Balance Test and the Finger-to-Nose Test. Beyond these, there are a host of non-standardized activities that are simply designed to make you look like a fool on camera: “recite the alphabet from H to W,” “count backwards from 47 to 33,” and similar activities.

Some officers are only trained on two of these tests, and yet they will perform several more tests beyond their knowledge base. 

Other officers will perform just one or two tests and conclude that they have probable cause to arrest you. 

Many officers will already believe they have probable cause, and they will ask you to do the tests just to make you look bad on camera.

In any event, remember, the officer is never looking for any clues of sobriety. They are only keeping score against you, in favor of intoxication, and you are not required to participate in ANY field sobriety tests. 

Simply say, “No, thank you,” if asked. 

Do I Have to Give a Blood Sample?

As a general rule, when police ask you to give a blood or breath sample, they already think you are drunk or on drugs. Here are some guidelines to remember:

1. If the police have probable cause to suspect you of DUI, then yes, you are legally required to give a blood or breath sample. 

2. The penalty for refusal, however, is not a crime in Tennessee. Instead, it is a civil violation that can result in a driver’s license suspension, but it is NOT automatic.

3. Contrary to popular misconception, it’s entirely up to the police which test they demand. You cannot get out of a blood test by offering to give a breath sample, nor vice versa. 

Remember those three things, and don’t trust a police officer who tells you that you can go home after a test. In most cases, they’ve already decided to arrest you before they ask for your blood or breath sample. 

Will My Driver’s License Get Automatically Suspended for Refusing a Blood or Breath Test?

No. Contrary to what the officer might tell you, and contrary to what you might read elsewhere on the Internet (including some Tennessee law-firm websites), Tennessee will NOT automatically suspend your license. In fact, in Tennessee the state does not even set a driver’s license suspension hearing solely based on your DUI arrest or your refusal to give a blood or breath sample. 

This stands in stark contrast to other states where the state DMV does issue automatic suspensions or notices of hearing. In those states, you're stuck fighting the DUI in criminal court and the license suspension in administrative court.

In Tennessee, the the Tennessee Department of Safety (“TDOS”) Rules and Regulations do not even contain a provision for DUI suspension hearings: https://publications.tnsosfiles.com/rules/1340/1340.htm  

(Perhaps those erroneous Tennessee law-firm websites were written by website developers in other states. Hopefully they weren’t written by Tennessee lawyers.)

Instead, TDOS will wait for the criminal court judge to find you guilty of either the DUI or the Implied Consent Violation. The earliest this could happen would be on your first court date, but only if you decide to plead guilty on your first court date.

That being said, your license can get suspended while your still fighting your DUI. If you decide to fight the DUI charges all the way up to Circuit Court, the General Sessions judge can hold a hearing on an Implied Consent Violation. If the General Sessions judge believes the officer had probable cause to suspect you of DUI, then the judge can order your license suspended for the refusal to submit to a blood or breath test. Even if you get the DUI dismissed later in Circuit Court, your Implied Consent Violation still stands unless you appeal it within ten days of the General Sessions hearing. 

Regardless of when the judge orders your license suspended, you can begin the process for a restricted license, even while still fighting your DUI case.

In fact, if you and your lawyer are prepared for it, you may be eligible to ask for a restricted driver’s license on the same day that your license is suspended, effectively eliminating any interruption in your ability to drive. This is also much different compared to some states where drivers must complete a months’ long waiting period, during which they are not allowed to drive at all. 

What Happens at Your First Court Date?

In Tennessee, your first court date can be very important:

1. The Judge might surprise you and ask you “how do you plead” without giving you a lawyer. If you say “guilty,” you will get a permanent, criminal conviction with jail time, fines, court costs, a driver’s license suspension, and supervised probation. (And yes, that can all happen without you getting a lawyer. So ask for a lawyer.)

2. The Judge may order you to follow a variety of bond conditions such as installing an expensive ignition interlock device in your car, paying for an embarrassing “SCRAM” ankle monitor that beeps and buzzes periodically throughout the day and reports to authorities if it ever detects alcohol through your sweat glands. 

If you can’t have a lawyer at your first court date, you should plead “not guilty” to all charges. In fact, you must plead “not guilty” to ask for time to hire a lawyer. 

The judge should give you at least a week or two to post your bond, get out of jail, and come back to court with a lawyer. 

What if I Feel Guilty?

You have a right to plead “not guilty” even if you are guilty. 

Don’t let shame, embarrassment, or feelings of guilt cloud your judgment. You can change your plea to “guilty” later, but you should weigh your options with a lawyer before you make that permanent decision.

First, the officer’s investigation and arrest may have violated your constitutional rights. If the officer arrested you without probable cause or made false statements in their search warrant for your blood, then the U.S. and Tennessee Constitutions require that your case be thrown out. 

Second, you might feel guilty even when you're not guilty. 

This can happen to conscientious individuals who may have had a drink or two. If this is you, you might think you’re totally fine to drive, and you might be totally fine to drive. But, you begin to feel shame and embarrassment when the police officer shows up. After spending a night in jail, you become convinced that you really screwed up, and it’s all your fault. Finally, after a night behind bars, when you stand in front of a judge who looks down from their big wooden bench, you feel guilty, and you plead guilty.

The problem with that scenario is that you haven’t spoken to a lawyer who is concerned 100% with your interests. Depending on your case, your blood-alcohol content (“BAC”) may not have been confirmed yet by the Tennessee Bureau of Investigation (“TBI”) laboratory, and you may be well under the legal limit.

How would you feel if you pled guilty in that situation and then later found out that your BAC was 0.02 percent, well below the legal limit of 0.08 percent? Even for commercial drivers, the legal limit is 0.04 percent.

Remember: plead “not guilty,” and ask for a lawyer. 

Can I Ask the Judge for Mercy?

No. Some people think they can ask for mercy from the judge, like with a speeding ticket. Unfortunately, this is not true. 

In Tennessee, if you plead guilty to DUI, the judge is required by law to sentence you to a permanent conviction that carries jail time. 

The only way to get mercy or leniency is from the prosecutor, and even that is rare. It is possible that your lawyer will be able to negotiate a reduction that does not require jail time or a permanent conviction, but it’s usually not based on your personal character. Most of the time, you will need a lawyer who can poke holes in the prosecutor’s evidence, find mistakes made by the police officer, win legal arguments with the judge, or a combination of all three. It’s usually only after the prosecutor realizes that they might lose their trial that they begin to consider reducing or dismissing charges.  

Can I Get My Case Dismissed or Reduced?

It is not possible to give a statistical probability of how your DUI case will resolve. 

First, the Tennessee Bureau of Investigation (“TBI”) tracks the overall number of DUI arrests in Tennessee on an annual basis, but the TBI does not publish the number of those cases that result in conviction. 

Second, and more importantly, your case will not be decided by a probability calculator. Every case is unique, and a variety of factors influence the outcome. These factors include the strength of the evidence against you, how you behaved during the investigation, what you said during the arrest, whether you performed FSTs, who your lawyer is, who the prosecutor is, and to a lesser degree, the judge. 

Phil and his team get many cases dismissed every year, and they will always work for the best possible outcome in your case. 

What Happens if I Get Convicted of DUI?

In Tennessee, all DUI convictions are permanent. Even a first-time conviction can never be expunged. This is one of the biggest reasons to make sure you get a full case evaluation and make an informed decision as quickly as possible. 

The minimum penalties for DUI are defined by statute, and they increase depending on prior convictions and other factors like how high your BAC was and whether there were children in the car. 

The law is also often changed by the state legislature periodically increasing the mandatory minimum penalties. Current law on mandatory DUI penalties is usually updated and summarized here, but even government websites should be checked against current statutes: https://www.tn.gov/safety/publicsafety/duioutline.html

What Happens if I Get Convicted of “Refusal” for an Implied Consent Violation?

If you refuse to give a blood or breath sample, and if the judge agrees with the police officer that there was probable cause to suspect you of DUI, then you can get “convicted” of a non-criminal offense called “Violation of the Implied Consent Law.” This can happen even while your DUI case is still pending. 

The judge is allowed to do this because Tennessee law defines Implied Consent as a civil violation, not a criminal charge, thus limiting your rights to defend against the violation. 

Even though it’s a civil violation, however, Implied Consent violations are also permanent. Further, their penalties increase with subsequent violations. Current law on mandatory Implied Consent violations is summarized here, but it should still be verified against current statutes: https://www.tn.gov/safety/publicsafety/duioutline.html 

Can I Get a Restricted Driver’s License?

If you are convicted of DUI or an Implied Consent Violation, your driver’s license will be suspended for a period of one to five years, depending on prior violations. 

You may, however, be able to get a restricted driver’s license during your suspension period. 

Your eligibility to obtain a restricted license depends on several factors, including the following considerations:

• Was your license was current at the time of of the offense?

• Was your license current at the time of your application for a restricted license?

• Do the circumstances of your case require ignition interlock or geographic restrictions?

• Are you able to obtain and pay for high-risk insurance certified by an SR-22 form?

• Do the circumstances of your conviction require the judge to deny your application for a restricted license?

Contact an Experience DUI Lawyer in Memphis

If you have been charged with a DUI or Implied Consent Violation in West Tennessee, you should immediately seek legal representation to preserve your rights and fight for the best outcome. Phil’s team can help. 

Read our reviews and see for yourself. We get good results, and we take care of our clients. Call us at (901) 205-9018 to schedule a consultation and get honest advice on your best legal options.