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Search Warrant or Exception Required For 'Mandatory' Blood Draw

A search warrant or recognized constitutional exception to the warrant requirement is required for law enforcement authorities to conduct a blood draw for the purposes of testing the alcohol content or toxicology of a suspect's blood. Under laws passed by the Tennessee legislature, a blood draw may be 'mandatory' under certain statutory circumstances when a person is suspected of Driving Under the Influence (DUI). However, the Tennessee Court of Criminal Appeals has explained that in order to interpret these provisions consistently with constitutional law, they must be understood to still require either a search warrant or a recognized exception to the warrant requirement.

In the recent Tennessee case of State v. Kennedy, M2013-02207-CCA-R9-CD (Tenn.Crim.App. 10-3-2014), the Court of Criminal Appeals upheld a trial court ruling suppressing blood alcohol content test results when the results came from a blood draw administered without a warrant and without the Defendant's actual consent. Police had ordered the blood draw pursuant to a state law which appears to require blood alcohol testing of a DUI suspect who has a prior DUI conviction. The trial court actually declared the state law unconstitutional as it appeared to create an exception to the warrant requirement, which is something a statute cannot lawfully do. The Court of Criminal Appeals agreed that the results should be suppressed (after an analysis rejecting the State's argument on exigent circumstances as a constitutional exception) but explained that the statute itself can be interpreted to be consistent with constitutional requirements, by concluding it does not dispense with the requirement for a warrant or a recognized exception before the 'mandatory' blood draw can occur.

The Court of Criminal Appeals also agreed with the trial court in rejecting the State's argument that exigent circumstances existed in this case due to the small number of police officers on duty at the time of the investigation and that there was a risk of loss of evidence from alcohol dissipation while waiting for police officers to obtain a search warrant.

Interestingly, the State also argued on appeal that Tennessee's implied consent law provides the constitutional exception to the warrant requirement (as consent is a recognized exception) and thereby allows state law to then determine when a blood draw can be compelled and when a suspect may withdraw consent already implicitly given. The Court of Criminal Appeals deemed this argument waived due to not having been raised at the trial court hearing, and declined to consider it in this case.

For more information on questions of search and seizure in criminal cases, contact Hindman & Associates.

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