- Associated Press - Monday, June 16, 2014

MEMPHIS, Tenn. (AP) - A newspaper investigation has found that Tennessee has a loophole in its drunken driving law.

The Commercial Appeal (https://bit.ly/1nJRGzQ) reports its analysis found that a person could potentially spend more time in jail for driving drunk and getting pulled over than for someone who causes a fatal accident while driving under the influence.

The newspaper found at least three offenders who have avoided jail time in Shelby County.

Meanwhile, the state’s law for first offense drunken drivers is among the toughest in the nation, requiring jail time of at least 48 hours.

“That’s ridiculous,” said Nashville attorney Tom Kimball, who trains prosecutors and police officers on DUI laws. “That’s a horrible loophole.”

However, Florida attorney Flem K. Whited III, who has written about DUI laws nationwide, said Tennessee’s law makes sense as it is.

“I think Tennessee has it right,” Whited said. “The judge ought to be able to make a valued determination of the sentence that is appropriate for the person in front of him.”

Tennessee judges have to look at 24 different factors will deciding the fate of a fatal crash involving a drunken driver, including any prior offenses.

One of the biggest indicators often is the desire of the victim’s family, Kimball said.

According to public records, one case in which a drunken driver was sentence to probation came at the request of the victim’s daughter. Records show the man was put on probation for eight years and hasn’t been arrested since.

But Tennessee’s law, with the possibility of full probation “is an anomaly,” according to Victor Carmody Jr., a DUI attorney who has represented clients in 22 states.

“I just don’t know of any other place where that happens,” he said.

On Wednesday, a judge in Memphis will decide whether it will happen again.

The newspaper reports 32-year-old Benjamin Sargent is scheduled to enter a guilty plea to drunk driving in a 2012 crash that killed 26-year-old Jantwnette Smith.

Defense attorney Steve Farese Sr. says he’ll argue for probation for Sargent, who has never been arrested before and is remorseful for the crash.

Prosecutor Stephanie Johnson said she will oppose the request.

“I’m obviously concerned that he’ll get probation because the law allows him to ask for it,” she said. “There’s a complete disconnect with a DUI driver - where the law requires at least some jail time - and a vehicular homicide, where the law doesn’t require jail time.”

Relatives of the victim have written to the judge seeking jail time while the defendant’s supporters have written to request mercy.

___

Information from: The Commercial Appeal, https://www.commercialappeal.com

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