Under TCA 55-10-406 any person driving a motor vehicle in Tennessee is deemed to have given implied consent to a breath test, a blood test, or both to determine the person’s alcohol or drug content of their blood. A refusal to submit to one of these tests is a civil rather than criminal offense. Therefore, drivers cannot be punished with jail time but will face mandatory suspension periods of their driver’s license.
The Tennessee Court of Criminal Appeals clarified that “consent” under the implied consent statute is not voluntary consent to search but consent to certain consequences if permission to search is withheld from a driver. State v. Henry, 539 S.W.3d 223, 246 (Tenn. Crim. App. 2017).
Breath and blood tests are treated differently in Tennessee, so there are different standards and procedures prior to administering one of these tests.
A breath test may be mandated based on:
- Driver’s implied consent;
- Driver’s express consent;
- A search warrant;
- Incident to a lawful arrest for a DUI; or
- An officer having probable cause that a driver caused an accident while DUI, is DUI with a minor under the age of 16, or has a prior DUI conviction.
A blood test may be mandated based on:
- Driver’s express consent to submit to a blood test along with a written waiver;
- A search warrant; or
- Without the consent of the driver if exigent circumstances to the search warrant requirement exist.
It is important to note that an officer may not rely on the implied consent statute to mandate a blood test in Tennessee. The Tennessee Criminal Court of Appeals held that because of the intrusion into privacy inherent in a forcible blood draw, this search would not be found reasonable under the Fourth Amendment unless performed pursuant to a warrant or an exception to the warrant requirement. State v. Wells, Tenn. Crim App. Lexis 933, at 13 (2014). The implied consent law does not create such an exception and does not satisfy the requirements of the Fourth Amendment. State v. Henry, 539 S.W.3d223, 243 (Tenn. Crim. App. 2017).
Therefore, to meet the statutory requirements for implied consent for a blood draw in Tennessee, an officer must:
- Have probable cause to conduct a traffic stop, inform the motorist of the consequences of refusal under implied consent; and
- Have the driver sign a standardized waiver developed by the Department of Safety.
If the two prongs listed above are not met, the officer must obtain a search warrant or rely on another exception to the warrant requirement to withdraw blood from the motorist.
Attached please find the current Consent Waiver used by Tennessee law enforcement.
Implied Consent (SF-0388) Rev 7-01-19
Katherine Haggard, Esq.
Associate, Freeman & Fuson