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Blood Evidence Admissible by Implied Consent

Circumstances under which evidence from a warrantless blood draw of a person suspected of driving under the influence (DUI) have been the subject of much legal argument since the U.S. Supreme Court decision in Missouri v. McNeely (2013), finding that exigent circumstances do not always justify warrantless blood draws in DUIcases. Tennessee law mandates a blood draw under certain circumstances. But, when that blood draw occurs without first obtaining a warrant, it still must occur pursuant to a constitutional exception to the warrant requirement. Tennessee has an implied consent law. Though it appears that implied consent may be withdrawn before a blood draw occurs, the recent Tennessee case of State v. Reynolds, E2013-02309-CCA-R9-CD (Tenn.Crim.App. 11-12-2014) determined that when implied consent is not actively withdrawn and the blood draw not specifically refused, it can occur pursuant to the consent exception to the warrant requirement.

In the Reynolds case, the defendant was involved in a fatal car accident and charged with various offenses, including DUI. As the defendant was at a hospital being treated for her injuries, a blood draw was performed. The trial court initially granted the defendant's motion to exclude the results of the test, finding both that the state had not proved the defendant gave actual consent for the draw and that implied consent did not apply due to there being no probable cause to believe the defendant was under the influence.

The Court of Criminal Appeals affirmed the trial court finding that the defendant did not give actual consent, but found the evidence preponderates against the finding that there was no probable cause to suspect she was under the influence. Because the Court of Criminal Appeals found there was reason to suspect driving under the influence and the defendant did not specifically refuse the blood draw, the blood draw was lawful pursuant to Tennessee's implied consent statute.

Recall that in another recent Tennessee case (State v Kennedy, October 2014), the Court of Criminal Appeals found that the mandatory blood draw provisions still require either a warrant or exception to the warrant requirement (but did not address implied consent in that case). In the Reynolds case, the exception to the warrant requirement was consent, provided under Tennessee's implied consent law.

Interestingly, the majority in this case also suggested this might be an appropriate case for the Tennessee Supreme Court to consider adopting a 'good faith' exception to the warrant requirement consistent with the federal exception. Judge Witt disagreed that it would be an appropriate case to consider adopting a good faith exception.

For more information on when a blood draw may be admissible evidence in a criminal case, contact Hindman & Associates.

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