Tennessee Supreme Court Delivers Blow to Implied Consent Law

by Bell Law Firm

Today, we continue our discussion of Tennessee’s Implied Consent Law.

Until recently, police officers would pull over a driver they suspected of driving under the influence of alcohol. The police would then force those citizens to have their blood drawn for the purpose of determining their blood alcohol content (BAC). Officers could perform these “blood draws,” without getting a warrant even though the draws are considered a “search” under the Fourth Amendment. This constitutional mandate,  as you may be aware, usually require a warrant issued from a judge or magistrate to be considered “reasonable.” The justification for skipping the warrant requirement in these instances derived from two sources: the “Exigent Circumstances” exception and the “Consent” exception to the Constitutions of the United States and Tennessee. The former practice is no longer good law for the police.

In our most recent post, we discussed the Supreme Court case of Missouri v. McNeely, and how that decision removed the ability of officers to perform a “mandatory blood draw” on citizens that are suspected of alcohol related driving offenses simply because of the fact that alcohol dissipates in the bloodstream over time. As the Court said in that case, “in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case.”  And while Missouri v. McNeely eliminated one avenue for getting around the warrant requirement, the Court did not fully address the second: Consent.[1]

Under Tennessee’s Implied Consent Law, every driver on the road in Tennessee has “consented” to having their blood drawn should an officer have probable cause to believe that the person is driving under the influence. Essentially, by driving on Tennessee roads, every person is making a deal with the State. The terms of that deal are this: by driving on Tennessee roads and highways, the driver is consenting to a mandatory blood draw should an officer have probable cause to believe the driver is driving under the influence. If the driver refuses to provide blood, the State will take away driving privileges for one year. In this way, the State of Tennessee, through its Implied Consent Law, is simply conditioning the privilege of driving if the driver agrees to waive a fundamental right under the Constitution: the right to be free from unreasonable searches.

But can the State condition the privilege of driving on the waiver of a constitutional right? That was the question the Tennessee Supreme Court addressed in October of 2014, in the case State of Tennessee v. James Dean Wells. Their answer there was an unequivocal “NO.”

Like most constitutional terms, giving “consent” in a legal sense has evolved over time. In Tennessee, the consent must be “unequivocal, specific, intelligently given and uncontaminated by duress or coercion.” Furthermore, “the individual’s free will cannot have been overborne; instead the consent must be the product of a free and unconstrained choice.”

There are other hallmarks of a true “consent” as well, and one example is that for a consent to be sufficient under the Fourth Amendment, the person giving the consent must be able to withdraw his or her consent at any time.

With these parameters in place, the question arises as to just how a citizen’s consent can be “intelligently given” if the vast majority of drivers are unaware of that by driving, they are consenting to a warrantless search? How can the consent that is, by its own definition, “implied” be “the product of a free, unconstrained choice”? And how can consent be effectively “withdrawn” if the withdrawal still results in the loss of driving privileges for a year?

The Tennessee Supreme Court decided that the answer to all of the above questions is, “it cannot,” and as such, the legal fiction that by driving on a Tennessee road the driver is consenting to a warrant-less blood draw is eradicated.

To be clear, that’s not to say that that a police officer does not have the ability to take a blood sample of a driver the officer believes to be driving under the influence of alcohol; the officer certainly can. This case just stands for the premise that those officers cannot take that person’s blood under the guise of that driver’s consent, unless the driver actually consents in a manner that is consistent with the parameters described above.

 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] The “consent” exception to the warrant requirement basically means that when a person agrees to have their person, home, or car searched, the officer is free to conduct a search without getting a warrant