Frequently Asked Questions

What should I do if I’ve been pulled over and have had anything to drink?

First, remember that interactions with police are always scary, no matter if you’ve been doing something wrong or not.  It’s reasonable to be nervous when talking to a police officer, but remaining calm and being polite will give them less ammunition to use against you later in court if you are arrested. 

Second, you are under no obligation to speak to an officer other than to provide identification and insurance paperwork. You certainly don’t need to tell them that you’ve been drinking at all. Even if the officer hasn’t read you your rights, your statements can still be used against you in court. If an officer suspects that you are under the influence, he or she will immediately begin to try and collect evidence to use against you, and your statements will always be included in arrest warrants. We’ve read thousands of DUI warrants and they will always include a statement against a defendant’s interest.

Third, you do not need to perform any sobriety tests or provide any blood or breath samples to a police officer.  Sobriety tests are NOT pass/fail: even if you have the best balance in the world, you will in some small way give them more evidence to use against you.  Once again, they’re not looking for reasons to let you go, so don’t give them any more reasons to lock you up. Be polite and respectful, but be firm and tell them you will not do any tests.

Fourth, do not allow them to search your car unless they have a warrant. Anything they find in your car can and will be used to make the case against you. You have rights and we can protect those rights in court, but only if you invoke your rights on the street.

Okay, so I’ve been arrested for DUI. What’s the first thing I should do?

Call us.  As experienced DUI attorneys, we can obtain the warrants, any video from the arrest, and we can walk through the evidence and explain the law to you. The scariest part of any arrest, including a DUI, is not knowing what’s going to happen next. Kevin can go through the process step by step and answer all of your questions so that you know exactly how things will play out. Also, consider immediately going to a lab to have an analysis for substances in your system done. That evidence may help us argue about problems with the samples taken by the police.

What will happen to me if I’m found guilty of DUI?

For a first offense DUI, the penalties are as follows:

• Jail time: Minimum of 48 hrs in jail but potentially more if BAC is high, an accident occurred, or children were in the car

• Fine: Minimum of $350

• Probation: 11 months and 29 days of supervision

• Driving Privileges: loss of driving privileges for 1 year, although you probably will qualify for a restricted license

• Programs: You’ll need to pay for and complete an Alcohol Safety Class and a Victim Impact Panel

None of these requirements are necessary if we are able to negotiate your case down to a Reckless Driving or Reckless Endangerment charge, which is why it is so important to get a lawyer who won’t just shrug his shoulders and tell you to take the minimums. We fight every day to keep DUI’s off of our client’s records for this very reason, and we don’t give up even if the evidence is strong.

How long does a DUI stay on my record?

A DUI conviction is a permanent addition to your criminal record. You can NOT have it expunged.  In addition, if you get a DUI conviction, any additional charges of DUI carry more jail time, more fines, and more probation requirements.

The decision to seek a lesser charge, to file motions to suppress the evidence, and to take the case in front of a jury are all decisions that are crucial to keeping this permanent conviction off your record, and our experience gives us the tools necessary to help you make those critical choices.

How can you get a DUI dropped to a lesser charge or dismissed?

It’s important to understand that every case is different, and every client is unique, but there are certain things that are true across the board.  The one golden rule of successful DUI defense is to go on attack immediately. The police must have probable cause to pull you over or approach your vehicle in the first place. They also have to have probable cause to investigate you for DUI even if the stop is valid. Then they need to conduct their investigation in the right way, including observing you and collecting samples. Over the years and thousand plus DUI’s we’ve defended, we’ve learned when the police have made a mistake and how much that can help us. By analyzing and exploiting the weaknesses of a case, we turn that into the best possible outcome for you, even if you think there’s no hope.

My friend/family member just got arrested. What happens next?

If you are arrested, you’ll actually have your first discussion with a judicial officer very quickly.  This person is called a Commissioner, and they will set a bond on your case and tell you what you have been charged with.  In order to set a bond, they’ll want to know what a person’s residence and criminal history is, if they’ve ever missed court, along with members of the community that can stand in support of them.  You are allowed to go in front of the commissioner and give them information that may help your friend or family member get a lower bond. They will also consider the evidence in the case and how serious the case is. If the bond is set too high, we can go in front of a judge and file a motion to have the bond lowered.

Then you can reach out to a bonding agent to help you post bail. Generally, bonding companies will charge you 10% of the bond plus a fee.  For instance, if your bond is set at $1000, it will cost $100 plus the bonding fee to get out.  You will not get this money back, even if the case is dismissed.  Once out on bond, you will be responsible for showing up for all of your court dates.  If you hire us to represent you, Kevin may be able to show up for your first court date in your place, and keep you from missing work or having to arrange for child care..

Is there going to be a trial?

The vast majority of cases are settled by plea agreements.  A plea agreement is when the District Attorney prosecuting the case agrees to reduce the charge, dismiss all or some of the charges, and recommend an agreed punishment in return for a guilty plea.  If there is no agreement with the District Attorney, you can have a trial, call witnesses, cross-examine the state’s witnesses, and introduce evidence in court.

There are no juries in General Sessions Court, where all criminal cases typically begin.  You can have a bench trial in General Sessions Court on any misdemeanor charge, and the judge will be the one to hear the evidence, determine whether or not you are guilty, and decide what the punishment will be. If you are unhappy with the judge’s decision, you can appeal that decision to Criminal Court.

If you want a jury trial or are charged with a felony, your case must be bound over to Criminal Court to be dealt with. Usually, you will have the option to have a Preliminary Hearing to decide whether or not there is probable cause to continue prosecuting the case.  At a Preliminary Hearing, the judge will decide:

• Is there probable cause that a crime was committed?

• Is there probable cause to believe that you were the person who committed it?

If the judge finds probable cause, they will send the case to the Grand Jury for review and potential indictment.  This process usually takes anywhere from 3-6 months.

Skilled attorneys can use a preliminary hearing to greatly increase the chances of success at a future trial or with future motions to suppress and exclude evidence.  Kevin has conducted more preliminary hearings than he can count, and will use them to put you in the best position to win your case.

What kind of punishment am I going to get?

This question always involved an expert discussion of many different factors, including your criminal record, the kind of charges you’re facing, and the evidence in the case against you. Just looking at the charge you’re facing is only part of it, and Kevin has made his career by limiting the punishment for people who have very strong cases against them and by getting weak cases thrown out. Call or text us today to set up a free consultation about your charges.

How long is this going to take?

Every case is different and this question is almost impossible to answer because of the variables involved in any case, but the bottom line is the more serious your case, the longer it will take to resolve. Kevin will always try to resolve matters as quickly as possible, but sometimes it takes longer to get the best outcome. No matter how long your case takes to resolve, Kevin will always be available to talk about developments in the case and timelines for getting things done.

Can I get this off my record?

If your case is dismissed, nolle prosequi, or retired, you may have it expunged from your record. Recent changes to the expungement laws have also made it possible to get convictions removed from your record in certain cases. Expungement is the process by which all recrods associated with your case are destroyed and removed from public view.  As a result, background checks will not turn up that the accused was ever arrested in the first place. 

You can also have your case expunged after you successfully complete an Under Advisement Plea. Usually this kind of deal involves doing a class or community service, and is negotiated on the front end by your attorney.  You may have done something like this in the past, but the case still isn’t expunged, just dismissed.  Contact us and we can check to make sure something can come off your record.

A final way to have something come off your record is by going through a process called Judicial Diversion, also called expungeable probation or 40-35-313.  You are only eligible for this kind of a deal once, but it can be used to keep serious felony convictions from being permanent convictions and help avoid a life changing outcome. Kevin is skilled at negotiating every single one of these expungeable outcomes and can help you reach the same result in your case.

What will you do to defend me?

Kevin Kelly has built his reputation on being the most prepared attorney in the courtroom.  He walks into every court proceeding with a firm grasp of the law involved in your case, and the facts of the case that can help you achieve the best outcome. He will discuss every aspect of your charge with you, partner with private investigators to obtain crucial evidence, talk to witnesses on both sides of the case, and doggedly negotiate with the district attorney to obtain the best result possible. At trial and hearing, Kevin will persuade the court with case law and evidentiary arguments, and prepare witnesses to have the greatest impact on the ruling. At all times, Kevin will communicate the strategy with his client and work together to create a win.