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Tennessee mulls ending criminal penalties for blood test refusal

The Tennessee legislature is considering changing the state's implied consent law, which requires drivers to provide breath or blood samples when suspected of DUI. You can lawfully refuse the test, but there are consequences. For a first offense, your driver's license will be revoked for a year.

Revocation of your license may be inconvenient, but it is considered an administrative as opposed to a criminal penalty. In some circumstances, however, refusal can be criminal. When a suspect is driving on a revoked license, refusing a breath or blood test is a Class A misdemeanor. It's also a Class A misdemeanor to prevent or obstruct someone from taking the test.

In 2016 the U.S. Supreme Court ruled that the Fourth Amendment generally requires warrants for blood tests -- or the results aren't admissible in court. (Blood tests are considered more intrusive than breath tests.)

Officers can be at an impasse if they want to obtain a blood test. If the driver refuses, the officer must obtain a warrant or the results of the blood test might not be admissible in criminal proceedings.

A new bill would allow officers to forego a warrant but still require a blood test when:

•· The suspect driver was involved in an accident involving the injury or death of another person

•· There was a minor passenger in the vehicle

•· The suspect driver has a prior conviction for DUI, vehicular assault, aggravated vehicular assault, vehicular homicide related to intoxication, or aggravated vehicular homicide (or an equivalent offense outside of Tennessee)

•· There are specific "exigent circumstances" which the law recognizes as sufficient to bypass the warrant requirement

The bill would also remove the Class A misdemeanor classification and penalties that currently apply in cases of intentional refusal, prevention and obstruction of the tests.

The upshot of this bill for law enforcement is to allow officers to require blood tests without warrants in certain situations where the current law only mandates a breath test.

The Senate Judiciary Committee recommended the bill for passage. However, the House Criminal Justice Committee has tabled the bill until the next calendar.

Update on unconstitutional Tennessee Bureau of Investigation fees for DUI testing

As we discussed in February, the Tennessee Court of Criminal Appeals ruled the TBI's DUI fees unconstitutional because they are only paid by convicted defendants. This creates an unlawful conflict of interest.

Because of the ruling, which was obtained by attorneys Jerry Summers, Ben McGowan, and Marya Schalk of Summers, Rufolo & Rodgers, many lawyers believe that TBI evidence cannot be admitted into evidence as long as the unconstitutional fee is in place.

The Tennessee Supreme Court has agreed to hear the case and SRR will be arguing for the defense.

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