Tennessee Code Annotated section 55-10-406 has seen some major changes in the last legislative session. 2017 Tennessee Laws Public Chapter 304 wholly repeals the old statutory section and replaces it with a new scheme. The new statute is convoluted, so we want to present a streamlined view of the new statute and what it means for those accused of driving under the influence.

Differentiating between breath and blood tests

Like the old statute, the new law focuses on giving law enforcement the ability to request blood or breath testing when a law enforcement officer has probable cause to believe that the operator of a vehicle is driving under the influence or committing the offense of vehicular assault, aggravated vehicular assault, vehicular homicide, or aggravated vehicular homicide.

In what appears to be an attempt to take advantage of the United States Supreme Court’s opinion in Burchfield v. North Dakota, the new statute provides separate procedures for administering breath tests and blood tests.

The new law allows breath tests to be administered:

1. Due to an operator’s “implied consent”
2. With the operator’s express consent
3. Pursuant to a search warrant
4. Incident to a lawful arrest for DUI (or other related crimes) or
5. When an officer has probable cause to believe the operator has been involved in an accident related to DUI, has committed a DUI with a child under 16 years old in the car, or has committed a DUI and has a prior conviction for DUI.

This is a significant change, as it now permits law enforcement to mandate breath tests incident to lawful arrest for DUI. Under the old law, generally a police officer would have to utilize the “implied consent” of an operator, however, now the search may be conducted “incident to arrest.” This means that the officer no longer will have to advise someone accused of DUI that she can refuse the test. Likely, the implied consent procedure will only be used when an accused refuses to submit to a breath test despite the legal mandates that she do so.

Blood tests now receive very different treatment from breath test. A law enforcement officer may only order a blood test if the officer has probable cause for DUI (or related offense) and (1) the operator gave explicit consent after executing a written waiver (which will be created by the Department of Safety); (2) with a search warrant, or (3) under the exigent circumstances exception to the warrant requirement.  Most importantly, the implied consent procedure may no longer be used to request a blood draw. In fact, the new law specifically sets forth that “[t]he implied consent given by the operator of a motor vehicle . . . is not sufficient to comply with the consent required to administer a blood test.” Further, under the new law, blood tests of unconscious or incapacidated people as a result of an accident are no longer permitted unless a search warrant or exigency exist.

Criminal charges for refusing tests

Under the new law, it is a criminal offense (Class A misdemeanor) for an operator to “intentionally refuse, prevent, or obstruct the administration of a breath test or blood test” if required to submit under the following scenarios:

In the case of breath tests:

• The operator refuses and has been involved with an accident resulting in injury or death of another;
• The operator refuses and had a child under 16 in the car;
• The operator refuses and had a prior DUI (or related offense) conviction; or
• The operator refuses when a search warrant has been issued for a breath test

In the case of blood tests:

• The operator refuses when a warrant had been issued of a blood draw; or
• The operator refuses when exigent circumstances exist to justify blood draw.

Further, in cases where the operator is required to submit to both breath and blood tests, any combination of the above can serve as a basis for a criminal charge. It should be noted that, in order to serve as a basis for a criminal charge, the test must be administered in accordance with Tennessee Code Annotated section 55-10-408.

Overall takeaways

This is a paradigm shift for how law enforcement can request blood samples in Tennessee. The old implied consent law is now just one of many statutory avenues for officers to use in trying to obtain a breath or blood sample. While we are happy the statute supports the use of search warrant, on the other hand allowing officers to subject citizens to breath test as searches “incident to arrest” allows them to wholly bypass the constitutional protections set in place by the required instructions informing an accused of the right to refuse under the former implied consent law.

Further, we foresee law enforcement declaring “exigent circumstances” to sidestep the warrant requirement. As law enforcement, prosecutors, and accused get accustomed to this new law, we expect ample litigation regarding when an officer has “exigent circumstances” to demand a blood test. Under the new law, an officer claiming existent circumstances can now criminally charge an accused with a second offense, which seriously puts an accused’s constitutional rights in question.

If you are arrested for DUI in Tennessee, the Delius & McKenzie is ready and able to fight for your rights. To schedule a consultation with an experienced Sevierville DUI defense attorney, please call 865-428-8780, or fill out our contact form. We proudly serve clients in Sevierville, Seymour, Gatlinburg, Pigeon Forge, throughout the Tri-Cities and in Greeneville.

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