FAQs

Having one alcoholic beverage and getting behind the wheel of an automobile is not a crime in the State of Tennessee. It is a crime to be in control or operation of a motor vehicle on public roadways while under the influence of alcohol or other drug producing intoxicating effects. By taking the field sobriety test, which usually consists of the walk and turn, one legged stand and the pin/eye test, you are simply giving the State additional evidence to use against you at trial. The field sobriety tests are known as divided attention tests and not designed to see if you can perform the tasks without error, rather these tests are designed to see if you can follow directions. After completing these tasks, the officer will give you the opportunity to take a breath alcohol test. This machine is referred to as the Breathalyzer and it takes a sample of your breath and gives a blood alcohol reading. The officer also has the option of requesting that you submit to a blood test.

In the State of Tennessee, the legal limit for DUI is .08. This is often misunderstood as it pertains to driving under the influence. The State has a burden of proof in every criminal trial and they must prove that you are under the influence beyond a reasonable doubt. If you take the Breathalyzer test and register .08 or higher, it is presumed that you are under the influence. Thus, it makes the State’s case easier to prove at trial as it pertains to the element of being under the influence. Should you take the Breathalyzer test and blow less than .08, that does not mean that you will be immediately released to go on your way. You could still be arrested for DUI if your test result is less than .08. If you are pulled over after drinking and are in doubt as to whether you should take any of these tests, my advice is to take none of them. In Tennessee, if you fail to take the Breathalyzer or the field sobriety tests, you will be arrested and charged for a violation of implied consent, as well as driving under the influence. As always, be as polite as you can because you will see the police officer again in court.

Paying child support and exercising visitation are two separate covenants. Simply because the father of your child is not paying child support does not mean that his visitation can be terminated by you. Visitation can only be terminated by a court order. If he is not paying support, your remedy would be to file a petition for contempt and have him placed in jail for failure to pay. If you fail to allow the obligor parent to exercise parenting time simply because they have failed to pay child support, you could find yourself in contempt of court as well.

In Tennessee, there is a sixty (60) or ninety (90) day waiting period from the time the divorce is filed until you can receive a final court date. If you are married without children, it is a mandatory sixty (60) day waiting period. If you are married with children, it is a mandatory ninety (90) day waiting period before you can have a final hearing. Depending on the county of your marital residence, you may not have to appear in court for a final hearing. Some counties allow you to submit the final paperwork at the end of the waiting period. These are the minimum time frames. Sometimes, the parties are unable to resolve issues of parenting time, alimony, child support or division of marital assets and divorces can take years to resolve. The better the parties are able to communicate and resolve issues amongst themselves, the cheaper and quicker they can get divorced.

As a part of any divorce in Tennessee, the Circuit or Chancery Court Judge must determine the amount of parenting time each spouse will receive with the children during and after the divorce. The term “custody” is rather antiquated and is really no longer used in Tennessee jurisprudence. If you have a child without being married, the Judge in Juvenile Court will have to determine each party’s parenting time or visitation with the children. Both courts will have to make the determination of who is going to be the primary residential parent, or the parent who will have the most time with the children. The paramount concern for any court in making this determination is the best interests of the minor children. There is no law in Tennessee stating that fathers get every other weekend visitation with their minor children. This is a mere creation of judges in the greater Tennessee area and has merely been adopted by a large percentage of the same. In June of 2011, the General Assembly amended the law in Tennessee Code Annotated, Section 36-6-106(a) to provide that the Court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the lives of the children consistent with the location of the parents’ residences and the children’s need for stability. The Court has a list of factors that they look at to determine what parenting time arrangement or schedule will be in the best interests of the children. The courts are going away from every other weekend visitation for fathers and are now favoring more liberal visitation for them. Although it depends on the Judge, Court and county in which your case is pending as to how this new law is interpreted, it does appear that the ship on “weekend daddy” has sailed.

In Tennessee, the courts of first resort are known as General Sessions Courts. General Sessions courts can be referenced to as “small claims courts”. Any civil matter that has a Twenty-Five Thousand Dollars ($25,000.00) or less amount in controversy can be disposed of in General Sessions Court. You are not entitled to a jury trial in General Sessions Court. A judge would hear your case and make his or her ruling. Each side has ten (10) days to appeal that court’s decision to a higher court for a new trial. This is a cost effective way for litigating matters where the amount in controversy is not substantial. General Sessions Court has exclusive jurisdiction to hear detainer warrants which are commonly referred to as evictions.

When an individual dies, all of their personal or real property remaining forms what is called an “estate”. Certain assets pass outside of the probate estate and do not require any court proceedings. Depending on the assets in the estate, it may be necessary to go through the probate process. The probate process usually takes approximately four (4) to six (6) months to complete if everything goes well. As in other civil actions, there can be disagreements over the distribution of assets or interpretations of a will requiring a longer period of time to resolve the legal issues. In Tennessee, when someone dies with a will, it must be presented to the Probate Court. If you are aware of the existence of a will and fail to submit it to probate, you could be prosecuted for a felony. If the amount of the estate is under $25,000.00, there is a small estate procedure that can be utilized to dispose of the decedent’s assets. Prior to determining if you have to go through this process, you should make a list of all known assets of the decedent as well as liabilities and consult an attorney.

Before a father can have any rights to a child that is born outside of marriage, he must go through the court process to establish he is the father. If you have children out of wedlock, your court is Juvenile Court. A petition would need to be filed to establish paternity, or legally establish him as the legal the father. This can either be done by a DNA test or agreement of the parties. After paternity is established, the Court would determine parenting time or visitation as well as set appropriate child support.

It is more difficult to change parenting time than child support orders once they have been approved by a court. This is why it is so important once you go to court that you have an arrangement that you can live with for years to come. To change a parenting time arrangement, there has to be a “material change of circumstances”. This would mean that something has changed in the life of the child since the time the parties were last in court that was unforeseeable. To increase or lower child support, there has to be what is known as a “significant variance” of fifteen percent (15%) on the amount of support the obligor would be paying given the change in either parent’s income. The Tennessee Department of Human Services has a child support calculator that you are able to download from their website to aid in a determination of whether you are entitled to a modification of child support.

The public defender has many effective and accomplished lawyers who are appointed to indigent criminal defendants. Although highly competent, the public defenders are extremely busy and have enormous case loads. Some public defenders handle in excess of 1500 criminal cases per year. To qualify for appointed counsel, you must apply with the court and meet certain income requirements.

Choosing the correct attorney for any legal need may be one of the most important decisions that you will ever make. Simply because a lawyer is a member of a large law firm does not necessarily mean that they are the correct lawyer for your needs. As a purveyor of legal services, I feel that it is important to have access to your lawyer when you have questions and not simply be referred to legal staff. If you feel there is a connection between you and a particular lawyer, then that may be the advocate who is right for you.