DUI Lawyer

DUI Lawyer – D. KELLY THOMAS Jr., Judge. The Defendant, Jason A. Albright, was convicted by a jury of driving under the influence (DUI). Following a sentencing hearing, the trial court sentenced the Defendant for DUI, third offense to eleven months and twenty-nine days incarceration suspended to probation after the service of 120 days in jail. On appeal, the Defendant contends that his prior convictions are invalid and that the trial court erred in denying him the right to attack the validity of the prior convictions at the sentencing hearing. Following our review, we conclude that one of the prior convictions was facially invalid and should not have been used to enhance the Defendant’s DUI conviction. Therefore, we direct the trial court to modify the judgment to reflect a conviction for DUI, second offense and to conduct another sentencing hearing. Although the Defendant is not challenging the sufficiency of the convicting evidence for the underlying DUI offense, we will provide the following factual summary to establish context for the Defendant’s issues on appeal. On July 21, 2007, Deputy Jerry VanAllman of the Marion County Sheriff’s Department was on duty in Sequatichie County when he went to Ketner Mill Road. In the summer, Ketner’s Mill is a popular swimming area in Sequatchie County. Deputy VanAllman was talking with some people by the swimming area of Ketner’s Mill when he noticed the Defendant driving towards him. The Defendant was driving normally; however, when he parked the car and got out of the car, the Defendant appeared “unsteady.” Deputy VanAllman approached the Defendant to see if he had been driving while impaired. Upon approaching the Defendant, Deputy VanAllman smelled “the odor of alcohol.” The Defendant’s eyes were “red and bloodshot and his speech was slurred slightly.” Deputy VanAllman looked in the Defendant’s vehicle and saw “an open container in the console, half consumed” and “four beer[s] in the floorboard on the passenger’s side that [had not] been opened.” When the Defendant admitted that he had been drinking, Deputy VanAllman asked the Defendant if he would take some field sobriety tests. The Defendant complied but was unable to pass the tests. Deputy VanAllman arrested the Defendant and left the car with one of the Defendant’s friends. At the police station, the Defendant took a breathalyzer test. At that point, his blood alcohol content was .12 percent. The Defendant contested Deputy VanAllman’s version of the facts and argued that his friend was the one who was driving the vehicle. However, based upon the above evidence, the jury found the Defendant “guilty of driving while he had an alcohol concentration in his blood or breath of .08 of 1 percent or more” and “guilty of driving under the influence of an intoxicant.” At the conclusion of the trial, the Defendant waived his right to a jury determination of whether he had the requisite number of prior convictions to be convicted of DUI, third offense. The trial judge stated that he would allow defense counsel to argue the validity of the prior DUI convictions at the sentencing hearing. Defense counsel started to argue that the judgments of conviction were invalid because the convictions violated the confrontation clause in that those “who were participating in those convictions [should be required] to testify as to whether that was actually the same [Defendant].” Defense counsel also started to argue that the Defendant waived counsel in regard to one of the convictions and that the waiver was not apparent in the judgment. At that time, the trial court stated, “You can go ahead and put together your motion . . . on any law you have on [those issues, and] we’ll deal with it at the same time [as the sentencing hearing].” The trial court further stated,