It wasn't Kenneth Guyer Jr.'s first time behind the wheel allegedly drunk.
When the 40-year-old man got pulled over in September, it was his third time being stopped on suspicion of driving under the influence.
And law enforcement knew about his 1994 and 2003 DUI convictions.
When a police officer in Benton, Tenn., asked him to take a breath test or consent to a blood draw, he refused. When his case got to court, prosecutors didn't have enough evidence to charge him as a three-time DUI offender, so the charge was reduced to a lesser, included offense.
But if DUI-related legislation awaiting Gov. Bill Haslam's signature gets the go-ahead, defendants like Guyer will no longer slip through a loophole.
The legislation, which would go into effect Jan. 1, 2012, will require police to force a blood draw regardless of whether the driver consents to it if they have a prior DUI conviction or if they have a child in the vehicle with them under the age of 16.
Sponsored by lawmakers Sen. Mae Beavers, R-Mount Juliet, and Rep. Tony Shipley, R-Kingsport, the legislation, which critics claim violates certain constitutional rights, received unanimous support in the House and Senate.
"We're tired of drunk drivers killing people," said District Attorney General Steve Bebb, who serves Bradley, McMinn, Monroe and Polk counties and who lobbied for the bill. "We don't know if it will stand up or if it's constitutional, but we'll test it."
Police began forcibly drawing blood in DUI cases in July 2009. Under current law, in vehicular assault or vehicular homicide cases, police can take a driver's blood with probable cause.
But in all other circumstances, a driver may refuse to submit blood with the understanding his or her driver's license will be suspended. It's called the Implied Consent Statute.
Brooklynn Martin Townsend, an assistant district attorney general in Bebb's 10th Judicial District whose job is funded by a federal grant to strictly prosecute DUI cases, hopes the legislation prohibits defendants like Guyer from getting off so easy.
"With multiple offenders, generally after their first or second DUI, their defense attorney says, 'Don't take the BAC (blood-alcohol content) test,' " Townsend said. "They learn not to do anything so they know they get that added benefit of very limited amount of evidence to show they're impaired.
"If I don't have a blood or breath test, as you can see, it can be very difficult to convict a multiple offender."
In addition, she said, multiple DUI offenders often have revoked licenses for prior convictions so the Implied Consent violation means nothing to them.
"This new law will help us immensely in getting multiple offenders who have learned to play the game off the road, which means more lives saved," Townsend said.
But Knoxville-based defense attorney Gregory P. Isaacs contends there is more than one way to prove someone is drunk behind the wheel.
"Field sobriety tests, which are federally approved, are used in every arrest and in court every day as evidence to show someone is impaired. So to say people aren't doing that to get out of a crime is not correct," he said.
Isaacs added that defense lawyers also often use a police video from the arrest that can be more powerful than any test in the eyes of a jury.
He also contends the passing of the bill raises Fourth Amendment issues, most of them grounded in the constitutional right to be free from unreasonable searches and seizures.
"Any time government is allowed to commit a seizure of your body and withdraw evidence prior to being arrested for a crime opens the door for a lot of issues," he said. "This law really opens Pandora's box on virtually every DUI stop and weakens all of our fundamental freedoms."
It's like letting law enforcement go blindly into a convicted sexual offender's home to search because they think something is in there, he said.
Other critics, including Melanie Bean, the Tennessee Association of Criminal Defense Lawyers legislative chair, agreed there are a number of potential constitutional problems with the legislation.
"It's impossible to know exactly how the statute will be interpreted, but these issues will be dealt with on a case-by-case basis by defense lawyers, prosecutors and the courts after the bill goes into effect," she said.
Natalie Neysa Alund may be reached at 865-342-6307.
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