The Mysterious Implied Consent Law in Tennessee

by Bell Law Firm

Few laws are as shrouded in mystery as Tennessee’s implied consent law. Do I have to let the police draw my blood? Should I? What happens if I refuse? Why can’t I give them a urine test or a breath test and refuse blood? There are no clear cut answers to many of those questions; every case is unique in its own way and good legal advice is always specific to each case. If you need advice on an ongoing legal situation involving Tennessee’s implied consent or an alcohol related driving offense, stop reading this immediately (or bookmark it for later) and call our office at 865-637-2900. The Law Office of James A.H. Bell, P.C. has litigated in this field for more than forty years.

You can find Tennessee’s implied consent law here. In short, it states that anyone in Tennessee that drives a car gives their consent to having their blood tested to determine the alcohol content if a police officer has probable cause to believe that the person is driving under the influence of alcohol, or violating certain other laws.[1] And, without doubt, the law enforcement officer has the exclusive choice to decide which chemical test to employ in the particular case. You have no choice to insist on a particular test.[2]

Usually, for the officer to establish that he has probable cause to believe that a person is driving under the influence, the officer must make a statement under oath about all of the facts that make the officer believe the person is intoxicated, give that statement to a magistrate, who reviews it and if he agrees with it, swears out a warrant for the person’s blood to be drawn. This is so because of the Fourth Amendment’s protection against “unreasonable searches and seizures”. Any time an officer takes blood from a suspect, the act of taking the blood is considered a “search”. To ensure that the seizure is “reasonable” Courts usually requires the officer to get approval (a warrant) from a “neutral and detached” magistrate.

However, like all rules, there are exceptions to the “warrant requirement”, such as when a suspect “consents” to the search or seizure by agreeing that the officer may draw blood: an officer doesn’t need a warrant if you agree to the search. Another exception is known as the “exigent circumstances” exception, which applies if an officer is chasing a bank-robber from the bank to his getaway car: the officer is not required to call and get a magistrate’s approval before he “seizes” the car.

Until the Supreme Court case of Missouri v. McNeely, officers could skip the part about swearing out a statement and having a magistrate issue a warrant because of this “exigent circumstances” exception. The justification for not requiring the usual warrant process went like this: because alcohol dissipates in the blood over time, evidence of the crime of driving under the influence “disappears” over time, creating an exigent situation (disappearing evidence!) therefore an officer could skip the warrant requirement and go right to the seizure of the suspect’s blood.

Missouri v. McNeely changed all that. In that case, the Supreme Court said that just because alcohol dissipates in a person’s blood over time, that fact alone does not mean that the circumstances are always “exigent” in the sense that the officer never has time to get a warrant. Like all legal questions, whether the circumstances truly are “exigent” must be determined on a case by case basis. The Court finally concluded that, “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Now, in light of this new case, the ability of a police officer to draw blood, without getting a warrant, simply because alcohol dissipates in a person’s blood over time, is gone just like that. And while the battle has been won for those concerned citizens that favor strict adherence to the warrant requirement, the war is far from over. Our next post will cover another similar battle over the implied consent law and the warrant requirement, and we hope you will come back and continue the conversation

 Jacob Feuer is an associate attorney with the Law Offices of James A.H. Bell P.C  in Knoxville, TN. He may be contacted by calling 865-637-2900 or by email at jfeuer@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] “Wait just a minute,” you say, “when I got my license or purchased my car, I never signed anything consenting to have my blood drawn. No one explained that by driving a car I was agreeing to this deal!” That’s why the law is referred to as the implied consent law, as opposed to the actual consent law. Stay tuned for more information on that subject in our next post.

[2] You do have a statutory right to have an independent sample for independent examination. For more information on the procedure, please contact our office. We have the resources and the ability to have a registered nurse come to the jail and make our own blood draw for your defense and analysis.