All crimes have elements. The elements of a crime constitute parts the parts of the crime the State must prove beyond a reasonable doubt in order to be convicted. T.C.A. § 55-10-401(a) defines the elements for the offense of Driving Under the Influence of an Intoxicant or Drug, which is commonly referred to as DUI, or in some states DWI (Driving While Impaired) or OUI (Operating Under the Influence).
The elements of the crime of Driving Under the Influence are:
- Any person driving or being in physical control of an automobile or another motor driven vehicle. The term motor-driven vehicle could include lawn mowers, ATV's, motorcycles, scooters, or any device driven by a motor.
- On a public road or highway of the State of Tennessee, or any street, alley, premises of any shopping center, trailer park, apartment house complex, or any other premises generally frequented by the public at large.
- (a) While under the influence of any intoxicant, marijuana, narcotic drug, or any drug producing stimulating effects on the central nervous system, or:
(b) With a blood or breath alcohol concentration of .08% or more.
The Tennessee State Legislature has established a per se offense of DUI. A per se violation occurs when a citizen's blood or breath alcohol level is .08% or higher as in section 3(b) above. The statute establishes that there is no intent or knowledge required in order to be guilty. A driver could be operating his car with the skill of a NASCAR driver and still be convicted of DUI.
In the criminal courts of Nashville, Davidson County, the District Attorneys Office will usually indict a citizen on two counts of DUI if there is a breath or blood test involved. The first count will be a violation of the per se law under 3(b) above if their blood or breath alcohol level is in excess of .08%. The second count will be the DUI under 3(a) above where your driving is impaired. It is entirely possible to be found guilty on both counts of DUI for the same incident.
Unfortunately, the State Legislature did not take the time to clearly define the phrase "under the influence", and it has been left to judicial interpretation. The evidence of being under the influence may be either direct or circumstantial evidence. Some of the factors the Court and police officers look for are the odor of alcohol, physical demeanor such as slurred speech or red and bloodshot eyes, and admissions of the defendant of their alcohol consumption. Courts also rely on evidence from the Standardized Field Sobriety Test to determine intoxication.
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