One Of These Things Is Not Like the Other: DUIs and Diversion

Hello Chickadees,

As most of you know, the legal alcohol blood concentration limit in Tennessee is 0.08%. Can you tell when you’ve drank enough to reach or exceed that amount? If you answered no, then you are definitely not alone. It's pretty much a guarantee that the average person can't determine when they surpass that magical number and cross over into the land of the dark criminal underworld. People have one or two drinks all the time and drive only to find themselves charged with a DUI and possibly stuck with a criminal record for life.
What many people don’t know is that Tennessee has a program for criminal first offenders called diversion. Basically, under Tennessee law, if you commit certain crimes in the state and you are a first time criminal offender, you can take advantage of this program and possibly have your criminal record erased after going on probation. Thus, after committing one of the eligible crimes, if you meet all of the requirements, you too can have a chance to make the bad situation as though it never happened.

You chickadees may be wondering what these requirements are. Well, first we’ll start with the types of crimes that are not diversion eligible. It’s easier to do it that way because there are so many crimes that a person could commit that would still make him or her eligible for diversion.

If you are charged with an A or B felony, you are ineligible for diversion. I’ll give you a nonexclusive list of crimes that could be considered A or B felonies to give you a better idea of what would make you ineligible. Basically, if you rob someone with a gun, or if you kidnap someone and they get seriously hurt, or if you commit a crime that’s results in serious bodily harm to someone else, you are ineligible for diversion. If you steal an obscene amount of stuff that adds up to over $60,000, you are ineligible for diversion. Also, you can’t get diversion for sex crimes. Last, but definitely not least, as it is the point of this entire post YOU CANNOT GET DIVERSION FOR DUI.

Now we’ll admit, before we became attorneys, we always thought of people charged with DUI like this:



Unfortunately in reality, some people charged with DUI are not really that impaired. In fact, sometimes, people are charged with what’s called DUI per se simply because their blood alcohol concentration is exactly at 0.08%. These people are usually stopped by the police for something other than what most would consider “suspicious DUI activity” like swerving on the road or a single or multiple car accident. They are stopped for speeding, or out of date tags and things roll downhill from there. They could also be arrested after not driving at all because in Tennessee you simply have to be in “physical control” of a vehicle in order to violate the DUI law. These people are certainly not what others would call “hardened criminals.” In fact, many times, these people have no criminal record at all, and are unlikely to ever get caught up in a criminal case again. Since there is no diversion for DUI, these people could end up with criminal records while others in a similar position charged with domestic assault or assault or theft get a second chance at a clean record. Here are some examples to give you a better idea of how skewed the Tennessee diversion program is.

This is Jill.



Jill has a husband named Jack.



Jill comes home from work one day and Jack has not finished cooking Jill’s dinner. Jill punches Jack in the throat. Jack has a bruise and he is sore, but Jack is for the most part okay.



Jack decided to call the police. Jill goes to jail. Jack has never called the police on Jill before, so Jill has no criminal record. Jill is diversion eligible. Jill gets to go on probation for a while, and since Jack didn’t call the police to come get her during Jill’s probation, and Jill did everything else she was supposed to do while on probation, Jill had her case dismissed at the end of her probation. Jill got her criminal record expunged and now Jill is good as new.

This is Jane.



Jane felt unappreciated. Jane felt as though she needed some retail therapy to feel better. Jane went to her local clothing store and shopped around for a little while. She still didn’t feel better. Jane decided that she would get more of a rush if she stole some clothes. Jane wanted to see if she could get away with stuffing some clothes into her purse. Jane put the clothes in her purse and left the store. She heard “stop thief,” and started running.



Jane was stopped by the loss prevention officer at the store and was later taken to Jail East. Jane has never gotten caught stealing before, so Jane doesn’t have a criminal record. Jane is diversion eligible. Jane goes on probation for a while and does everything that she is supposed to do while she is on probation. Jane gets her record expunged after her probation is over and her criminal record is good as new.

This is Joe.



Joe’s birthday is today. Joe’s friends took Joe to celebrate. Joe had one drink. Joe did not feel impaired. Joe did not seem impaired to any of his friends. Joe got into his car to go home, but before Joe put the keys into the ignition, Joe decided that he shouldn’t drive home. While sitting in his car, Joe called a friend to come back and pick Joe up. Joe’s friend agreed, so Joe decided to wait in his car for his friend to come back. It was late and Joe fell asleep in his car. A few minutes later, Joe heard a tap at his car window. It was a friendly Memphis Police Officer. Joe let his window down. The officer asked if everything was alright. The officer asked if Joe had been drinking. Joe may be a lot of things, but he is not a liar. Joe told the officer that he had a drink with friends earlier. The officer asked Joe to step out of the car. Joe stepped out of the car. Joe is compliant and does everything the officer says. Joe goes to jail. Joe gets a conviction for DUI. Joe has a lifelong criminal record.



One of these illustrations is not like the other. How is it fair that in Tennessee, Jill and Jane committed crimes and get to have a second chance, but Joe had a drink with friends and he must have a criminal record for life? Now, we are by no means suggesting that anyone drive while impaired. However, due to the fact that alcohol is legal to drink if you are over 21, and due to the fact that no one can tell when they’ve reached that magical number of 0.08%, a person charged with DUI should be diversion eligible.

Some of you chickadees may be thinking “what if someone is sloppy drunk and they decide to drive based on the fact that they know they get one free pass?” We think that if DUI were to become an offense for which one could be diversion eligible, there should be limits. Just as some crimes go from diversion eligible crimes to ineligible crimes (like robbery to aggravated robbery, or kidnapping to aggravated kidnapping), there should be at least two classes of DUI, with one being diversion eligible and the other being diversion ineligible. For example, if someone charged with DUI has injured another person while driving, the crime should be considered ineligible for diversion. Also, if someone’s blood alcohol concentration is determined to be extremely high, they should be placed in a separate category, and judicial diversion should be unavailable to them.

Once again, the Law Chicks do not endorse drunk driving, but we think it would be nice if a first offender with a DUI case could have an opportunity to get a second chance. What do you all think?

Peace, Love, and Quid Pro Quo,

The Law Chicks

P.S. If you really want to be a dork, you can check out the Tennessee DUI Statute and the Tennessee Diversion Statute. The DUI Statute is Tennessee Code Annotated Section 55-10-401. The Diversion Statute is Tennessee Code Annotated Section 40-35-313.