Appeals decision vacates local DUI conviction, touches on TBI fee-system case

Appeals decision vacates local DUI conviction, touches on TBI fee-system case

August 22nd, 2018 by Zack Peterson in Local Regional News

A Chattanooga man's drunken driving conviction has been dismissed after the Tennessee Court of Criminal Appeals ruled Tuesday that a roadblock that led to his arrest was unconstitutional.

A Hamilton County jury convicted Robert A. Franklin, 58, of driving under the influence in 2016, a charge that resulted from a 2012 roadblock near the tunnel on Cherokee Boulevard, during which he had a 0.12 blood-alcohol level. Of the 285 cars that passed through the roadblock, Franklin was the only one who was arrested for DUI; a handful of others were cited.

But Franklin and his attorneys, Jerry Summers and Ben McGowan, argued that state highway patrol officers didn't alert the public beforehand about the roadblock, didn't give drivers proper notice, and didn't pick a safe or relevant location. These shortcomings didn't satisfy the guidelines officers are supposed to follow for roadblocks, the attorneys argued, and they violated Franklin's Fourth Amendment protection against illegal searches and seizures.

The appeals court justices agreed and said Hamilton County Criminal Court Judge Don Poole should have accepted Franklin's 2013 and 2014 motions to dismiss.

"Although the record provides limited information as to the exact location of the checkpoint, it does indicate that the checkpoint was located only a short distance from the exit of the tunnel," Justice Camille McMullen wrote in the opinion. "We strongly question whether tunnels, which provide the motorists limited space in which to avoid accidents and place officers and motorists at increased risk of harm, should ever be utilized to conceal checkpoints.

"Notwithstanding that concern, we conclude that the officers' failure to post warning signs prior to entering the tunnel undoubtedly prevented motorists from having adequate notice of the impending checkpoint," McMullen said.

Samantha Fischer, spokeswoman for the Tennessee Attorney General's Office, said Wednesday state attorneys are studying the decision. They have not decided if they will appeal the issue to the Tennessee Supreme Court.

The 50-page opinion also weighed in on a separate case from Chattanooga that's frozen some DUI prosecutions in the area: Whether the state's top law enforcement agency, the Tennessee Bureau of Investigation, operated an unconstitutional fee system by collecting only $250 for drug-and-alcohol blood tests when state attorneys won an impaired driving case. The issue is pending before the Tennessee Supreme Court.

Attorneys Summers, McGowan and Marya Schalk also worked on that case, and Summers argued in May before the state Supreme Court that the fee system is biased and a violation of a defendant's right to fair trial.

In the opinion, McMullen seemed to agree with some of that argument: "Because so many DUI cases end in guilty pleas, rather than trials, we conclude that neither a jury instruction nor a vigorous cross examination of TBI forensic scientists corrects the fact that [these laws] violate due process."

Contact staff writer Zack Peterson at or 423-757-6347. Follow him on Twitter @zackpeterson918.