What Is Implied Consent In Tennessee
To put things plainly, implied consent law in Tennessee is the law that requires all drivers in the state to take a chemical test of some kind, such as a breath test or blood test. It’s a requirement that is backed by the threat of a license suspension for any driver who refuses a valid test request from a law enforcement officer.
Your consent is implied in this law because you have agreed to taking these tests by becoming licensed to drive in Tennessee . Essentially, you are saying that you intend to use this state-issued privilege to drive and, in exchange for your privilege, you have agreed to submit to a chemical test should a police officer request you to take one during a traffic stop.
The original implied consent law was adopted by the state of Tennessee in 1967. Before and after then, different sections of the law have been changed in order to strengthen the law and make it easier to enforce as the public safety and criminal penalties regarding DUI offenses have gotten increasingly stricter over the years.
Refusing A Breathalyzer Can Have Implications
Under Tennessee’s Implied Consent law, when a person is involved in a motor vehicle accident and the police suspect that alcohol or drugs were a factor, they may be asked to submit to a breathalyzer test. The law is called implied consent because when you are issued a Tennessee driver’s license you give up your rights for law enforcement officers to ask you to take a chemical test (breath or blood) when you are pulled over if they have a reasonable belief that drug or alcohol use had an effect on your driving.
Under Tennessee law, if you refuse to take a breathalyzer test in response to an implied consent request, you can face both civil and criminal penalties. Motorists who refuse to take a breath test risk losing their licenses. If the officer asks you to submit to a breath test and there is a reasonable belief you were under the influence, then you must consent to let the officer test you for your blood alcohol level or face a driver’s license suspension – even if you haven’t been arrested. The officer will issue you a Notice of Suspension if you refused to take the test. You will lose your license for one year. There is no way around it. Even if you did not drink or did not drink enough to be considered under the influence, you cannot "refuse" the test under our laws and hope to keep driving privileges. You also will be required to pay a $250-$300 civil penalty, although that will not reinstate your license. A hearing request does not automatically prevent the suspension from going into effect as scheduled. If you are arrested for Driving Under the Influence (DUI) and do not immediately "request" a blood test, results of the blood test will not be admissible if you later ask to have the blood retested at an independent lab. You still also face criminal charges in court if you are convicted of DUI following your arrest. Refusal to provide breath or blood sample upon your arrest will not keep you from facing a conviction and its penalties.
Privilege To Drive and Refusal
Refusal to abide by the terms of the Tennessee implied consent law can have serious consequences on a driver’s right to operate a motor vehicle. Instead of obtaining an immediate photo license, Miranda warning, and blood or breath test, a DUI suspect who refuses will have his or her license immediately suspended for a period of usually at least one year for a first refusal. Upon subsequent refusals or DUIs, the suspension is typically for a longer period. After a first refusal, a driver will not be eligible to apply for a restricted license for one year. Instead, a person may not apply for a restricted license until the entire suspension time has expired and all reinstatement fees have been paid. This means that a person convicted of a first DUI and refusing a chemical test (getting only the 12 month hard suspension) will not be eligible to obtain a restricted license until the entire two years has passed. Given the fact that most Tennessee counties do not offer any alternative to the hard suspension, the defendant will end up driving on a revoked license at some point. A glasses-only designator will not save you from the ignition interlock device if you are convicted of a subsequent DUI. Because DWIs and DUIs are such a common offense in Tennessee, the implied consent law is a relatively predictable, almost rote, process for every driver. However, be sure to check with your Davidson County or Williamson County Criminal Lawyer for the latest updates to this law, because changes happen frequently, and as Judicial Decisions are made new pitfalls are being created.
Exemptions And Defenses
There are limitations to the implied consent law, as well as several defenses that may be offered in court. First: when a driver is physically incapable of refusing or submitting a blood specimen, such as when a person is unconscious or temporarily paralyzed, they cannot be prosecuted for a DUI. Second: if a driver has consumed alcohol but it has not yet entered his or her bloodstream and he or she submits to a preliminary test , it cannot be used as evidence against him or her in a court of law. Third: the refusal by a driver to submit to chemical testing is only valid if it is based on reasonable grounds. The arresting officer must inform the driver of all the conditions of the implied consent law, and if any of those conditions are not met he or she may be found not guilty of the charges. Fourth: drivers accused of violating the implied consent law have up to 60 days to request a hearing to contest that their license should not be revoked. Fifth: a breathalyzer test may be deemed inadmissible if the appropriate machine was not used, or if the machine was not properly calibrated and serviced.
Differences From Other States
Aside from the previously mentioned Missouri law, and Wisconsin law, Tennessee’s Implied Consent Law follows three different lines in our nation. First, there is the majority position which most of our states have. This position simply makes it unlawful to operate a motor vehicle while under the influence of an intoxicant. In a majority of our states, the law requires that probable cause exist to effectuate a traffic stop. Once the motorist is stopped, that officer then must have probable cause to conclude that that motorist may be under the influence of an intoxicant to then ask for either physical sobriety tests or a breath test. Failure to participate in these tests may result in a civil penalty if a judge is convinced by a preponderance of the evidence that the failure to submit to these tests was voluntary. Kansas, Maryland, and North Carolina are a few examples of states that follow this majority position.
Traditionally, the minority position requires proscribed penalties for refusing to submit to a breath test after motorist is requested to do so. A classic example is Oregon, where refusal leads to an automatic one-year suspension. Colorado has a two-year suspension. The legislature was considering moving to the majority position so that a driver’s license would not be automatically taken away upon a refusal to breath test, however the legislature failed to agree on an amendment to do so.
The final line of Implied Consent Law is only taken by a handful of states. This final line says that refusal to take a breath test is a criminal offense in and of itself. The states that require a breath test – such as Texas — punish a refusal with a fine of $500 and a 90 day driver’s license suspension.
After looking at the various lines of Implied Consent Laws, the Tennessee Implied Consent Law would seem closest to the majority position because we still have to have probable cause to stop the motor vehicle, probable cause to believe the motorist is under the influence, and the motorist’s refusal to participate in the physical sobriety tests or a breath test is not criminal. Tennessee is unique in the sense that it allows the officer to require a blood (or urine) test in addition to a breath test. Tennessee also makes it criminal for refusing to submit to blood test or a breath test.
Changes and Trends
Over the past few legislative sessions, there have been attempts to change the law. Although some of those have not passed, there are some changes that are moving in 2014. The first is the repeal of Tennessee Code Annotated section 55-10-406. This section was the Tennessee Implied Consent Law. The amendment would be effective January 1, 2015. In its place is Tennessee Code Annotated section 55-10-406. The language of the new statute is similar to the language of the old statute . However, it adds a subsection making clear that the penalties for refusing a test related to a blood alcohol content (BAC) under Tennessee Code Annotated section 55-10-406 are not applicable in cases where a forcible act is made to obtain evidence, such as withdrawal of blood. Given that the U.S. Supreme Court recently ruled in Missouri v. McNeely that a warrantless blood draw requests may violate the Fourth Amendment, the amendment to Tennessee Code Annotated section 55-10-406 should be noteworthy. It will be important to pay attention to this amendment after January 1, 2015.