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Determination of Implied Consent Violation Permissible on Remand

Tennessee's implied consent law requires drivers to consent to a blood test to determine alcoholic content of the blood if requested to do so by a police officer who has reasonable grounds to believe the person was driving under the influence of an intoxicant. Unless the person's driver's license is already revoked for a DUI conviction or other enumerated driving conviction, refusal to comply is a non-criminal, civil violation. The determination of whether this civil violation occurred is to be made by a judge, rather than a jury, and determined at the same time as any criminal charge (such as a DUI) relating to the same arrest incident. In the recent case of State v. Mackinnon, E2012-00594-CCA-R3-CD (Tenn.Crim.App. 5-29-2013), the Tennessee Court of Criminal Appeals found it is also permissible for a judge to make that determination on a remand from the Court of Criminal Appeals, if instructed to do so.

In the Mackinnon case, the Defendant was charged with DUI and violation of the implied consent law. In a jury trial, the jury acquitted the Defendant of DUI but found that he did violate the implied consent law. On direct appeal of that determination, the Court of Criminal Appeals remanded based upon their conclusion that it was improper for the jury to make the implied consent violation determination, and that the trial court should make that determination independently. Thereafter, Defendant's counsel motioned the trial court for dismissal of the violation charge, making the argument that the law required the matter to be determined at the same time as the DUI charge, which was now impossible to do, as the Defendant had already been acquitted of that charge. The trial court denied that motion and made its own ruling that the Defendant did commit a violation.

On appeal of that ruling, the Court of Criminal Appeals found that as the trial court was acting pursuant to the remand instructions of the Court of Criminal Appeals, it was proper for the trial court to determine the implied consent violation even though the DUI trial had already occurred and would not occur again.

For more information on Tennessee's implied consent law, contact Hindman & Associates.

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