Hindman & Lanzon Hindman & Lanzon
Call for a Free Consultation
865-223-6450

Posts tagged "Implied Consent"

"Mandatory Blood Draw" Still Requires Warrant or Exception

A blood draw for testing its alcohol content is still considered a search under existing federal and state law. Fourth Amendment rights and privacy concerns apply. The Tennessee Court of Criminal Appeals, in State v. Brown, W2014-00162-CCA-R9-CD (Tenn.Crim.App. 4-30-2015), has again (consistent with prior appellate opinions) reviewed Tennessee's statutory provisions requiring a blood draw under certain circumstances and determined they not dispense with the constitutional warrant requirement (and are therefore not unconstitutional). Also like prior decisions, this particular opinion did not address the question of whether the mandatory blood draw provisions render 'implied consent' not revokable.

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 Though it appears that implied consent may be withdrawn before a blood draw occurs, the recent Tennessee case of State v. Reynolds, E2013-02309-CCA-R9-CD (Tenn.Crim.App. 11-12-2014) determined that when implied consent is not actively withdrawn and the blood draw not specifically refused, it can occur pursuant to the consent exception to the warrant requirement.

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.

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.

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.

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.

Probable Cause Established by Observation of Speeding

There must be probable cause or reasonable suspicion for a police officer to initiate an investigatory stop of a vehicle. Absent a warrant for a search or arrest, there must be some basis known to the officer for believing an occupant of a vehicle may have committed or may be about to commit a crime, before the officer has the authority to selectively detain the vehicle for even a brief investigation. 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 upheld the trial court's finding of probable cause where a trained police officer estimated the Defendant's vehicle to be speeding.

Probable Cause Established by Observation of Speeding

There must be probable cause or reasonable suspicion for a police officer to initiate an investigatory stop of a vehicle. Absent a warrant for a search or arrest, there must be some basis known to the officer for believing an occupant of a vehicle may have committed or may be about to commit a crime, before the officer has the authority to selectively detain the vehicle for even a brief investigation. 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 upheld the trial court's finding of probable cause where a trained police officer estimated the Defendant's vehicle to be speeding.

Probable Cause Established by Observation of Speeding

There must be probable cause or reasonable suspicion for a police officer to initiate an investigatory stop of a vehicle. Absent a warrant for a search or arrest, there must be some basis known to the officer for believing an occupant of a vehicle may have committed or may be about to commit a crime, before the officer has the authority to selectively detain the vehicle for even a brief investigation. 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 upheld the trial court's finding of probable cause where a trained police officer estimated the Defendant's vehicle to be speeding.

How to Refuse an Implied Consent Blood Test

Under Tennessee DUI law, anyone who drives a motor vehicle in this state is deemed to consent to testing to determine the alcohol or drug content of the person's blood. Tennessee Code Annotated 55-10-406. This is often referred to as the "implied consent law." Before directing such a test, a law enforcement officer must 1) have reasonable grounds to believe the person was driving under the influence; and 2) inform the person of the consequences of refusal. The law allows you to refuse the testing, subject to a penalty for doing so. The penalty is license suspension. If your license is already suspended due to a vehicular homicide offense or DUI, the penalty includes a fine and mandatory incarceration.

map map

Hindman & Lanzon
550 West Main Street
Suite 550
Knoxville, TN 37902

Toll Free: 866-383-1545
Phone: 865-223-6450
Fax: 865-521-6371
Knoxville Law Office Map