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Implied Consent

I frequently get questions about implied consent violations, as this is a subject that confuses many people. In tennessee, driving is a privilege, not a right. by obtaining a driver's license in tennessee, a driver agrees to be bound by tennessee's implied consent statute. I decided to post very brief answers to the five questions I am asked most often about implied consent violations.

THe implied consent statute, tennessee code annotated 55-10-406, is reproduced at the bottom of this page. If you have an implied consent violation and/or a dui charge that occurred in bartlett or elsewhere in tennessee and would like to speak with an attorney, Please contact me for a free consultation. 


FIVE THINGS THEY DON'T WANT
FIRST TIME OFFENDERS TO KNOW ABOUT THE TENNESSEE IMPLIED CONSENT LAW:

1. IMPLIED CONSENT IS NOT A CRIME.
2. SOMEONE WITH AN IMPLIED CONSENT VIOLATION CAN GET A RESTRICTED LICENSE.
3. THERE IS NO JAIL TIME ASSOCIATED WITH AN IMPLIED CONSENT VIOLATION.
4. THERE IS NO PROBATION ASSOCIATED WITH AN IMPLIED CONSENT VIOLATION.
5. THERE IS NO FINE ASSOCIATED WITH AN IMPLIED CONSENT VIOLATION.

T.C.A. 55-10-406(a)(1) Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person's blood, a test or tests for the purpose of determining the drug content of the person's blood, or both tests. However, no such test or tests may be administered pursuant to this section, unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, or was violating the provisions of § 39-13-106§ 39-13-213(a)(2) or § 39-13-218.

(2)(A) The following persons who, acting at the written request of a law enforcement officer, withdraw blood from a person for the purpose of conducting either or both tests, shall not incur any civil or criminal liability as a result of the withdrawing of the blood, except for any damages that may result from the negligence of the person so withdrawing:

(i) Any physician;

(ii) Registered nurse;

(iii) Licensed practical nurse;

(iv) Clinical laboratory technician;

(v) Licensed paramedic;

(vi) Licensed emergency medical technician approved to establish intravenous catheters;

(vii) Technologist; or

(viii) A trained phlebotomist who is operating under a hospital protocol, has completed phlebotomy training through an educational entity providing such training, or has been properly trained by a current or former employer to draw blood.

(B) Neither shall the hospital nor other employer of the health care professionals listed in this subdivision (a)(2) incur any civil or criminal liability as a result of the act of withdrawing blood from any person, except for negligence.

(3) Any law enforcement officer who requests that the driver of a motor vehicle submit to either or both tests authorized pursuant to this section, for the purpose of determining the alcohol or drug content, or both, of the driver's blood, shall, prior to conducting either test or tests, advise the driver that refusal to submit to the test or tests will result in the suspension by the court of the driver's operator's license; if the driver is driving on a license that is cancelled, suspended or revoked because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the influence of an intoxicant under § 55-10-401, that the refusal to submit to the test or tests will, in addition, result in a fine and mandatory jail or workhouse sentence; and if the driver is convicted of a violation of § 55-10-401, that the refusal to submit to the test or tests, depending on the person's prior criminal history, may result in the requirement that the person be required to operate only a motor vehicle equipped with a functioning ignition interlock device. The court having jurisdiction of the offense for which the driver was placed under arrest shall not have the authority to suspend the license of a driver or require the driver to operate only a motor vehicle equipped with a functioning ignition interlock device pursuant to § 55-10-403(a)(1)(A)(iii)(d), who refused to submit to either or both tests, if the driver was not advised of the consequences of the refusal.

(4)(A) Except as required by subsection (f), court order or search warrant, if such person, is placed under arrest, requested by a law enforcement officer to submit to either or both tests, advised of the consequences for refusing to do so, and refuses to submit, the test or tests to which the person refused shall not be given, and the person shall be charged with violating this subsection (a). The determination as to whether a driver violated this subsection (a) shall be made at the driver's first appearance or preliminary hearing in the general sessions court, but no later than the case being bound over to the grand jury, unless the refusal is a misdemeanor offense in which case the determination shall be made by the court which determines whether the driver committed the offense; however, upon the motion of the state, the determination may be made at the same time and by the same court as the court disposing of the offense for which the driver was placed under arrest. If the court finds that the driver violated this subsection (a), except as otherwise provided in subdivision (a)(5), the driver shall not be considered as having committed a criminal offense; however, the court shall revoke the license of the driver for a period of:

(i) One (1) year, if the person does not have a prior conviction for a violation of § 55-10-401§ 39-13-213(a)(2)§ 39-13-218§ 39-13-106, or § 55-10-418, in this state, or a similar offense in any other jurisdiction;

(ii) Two (2) years, if the person does have a prior conviction for an offense set out in subdivision (a)(4)(A)(i);

(iii) Two (2) years, if the court finds that the driver of a motor vehicle involved in an accident, in which one (1) or more persons suffered serious bodily injury, violated this subsection (a) by refusing to submit to such a test or tests; and

(iv) Five (5) years, if the court finds that the driver of a motor vehicle involved in an accident in which one (1) or more persons are killed, violated this subsection (a) by refusing to submit to such a test or tests.

(B) For the purposes of this subdivision (a)(4), “prior conviction” means a conviction for one (1) of the designated offenses, the commission of which occurred prior to the DUI arrest giving rise to the instant implied consent violation.

(5) In addition to the consequences set forth in this section, if the court or jury finds that the driver violated this subsection (a) while driving on a license that was revoked, suspended or cancelled because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the influence of an intoxicant under § 55-10-401, the driver commits a Class A misdemeanor and shall be fined not more than one thousand dollars ($1,000), and shall be sentenced to a minimum mandatory jail or workhouse sentence of five (5) days, which shall be served consecutively, day for day, and which sentence cannot be suspended.

(6) Any person who violates this section by refusing to submit to either test or both tests, pursuant to subdivision (a)(4), shall be charged by a separate warrant or citation that does not include any charge of violating § 55-10-401 that may arise from the same occurrence.

(7) If a person's driver license is suspended for a violation of subsection (a) prior to the time the offense for which the driver was arrested is disposed of, the court disposing of such offense may order the department of safety to reinstate the license if:

(A) The implied consent violation and the offense for which the driver was arrested result from the same incident; and

(B) The offense for which the person was arrested is dismissed by the court upon a finding that the law enforcement officer lacked sufficient cause to make the initial stop of the driver's vehicle.

(b) Any person who is unconscious as a result of an accident or is unconscious at the time of arrest or apprehension or otherwise in a condition rendering that person incapable of refusal, shall be subjected to the test or tests as provided for by §§ 55-10-405 -- 55-10-412, but the results thereof shall not be used in evidence against that person in any court or before any regulatory body without the consent of the person so tested. Refusal of release of the evidence so obtained will result in the suspension of that person's driver license, thus the refusal of consent shall give the person the same rights of hearing and determinations as provided for conscious and capable persons in this section.

(c)(1) A person whose license has been suspended by the court under this section may apply to the court in the county where the person resides or to the court in the county suspending the license for a restricted license. The judge of the court may order the issuance of a restricted license allowing the person to operate a motor vehicle for the purpose of:

(A) Going to and from and working at the person's regular place of employment;

(B) Going to and from a court-ordered alcohol safety program;

(C) Going to and from a college or university in the case of a student enrolled full time in the college or university; and

(D) Going to and from a scheduled interlock monitoring appointment.

(2) The order shall state with all practicable specificity the necessary time and places of permissible operation of a motor vehicle. The person may obtain a certified copy of the order, and within ten (10) days after it is issued, present it, along with an application fee of twenty dollars ($20.00), to the department of safety, which shall forthwith issue a restricted license embodying the limitations imposed in the order. After proper application and until the time as the restricted license is issued, a certified copy of the order may serve in lieu of a motor vehicle operator's license. Any restricted license issued under the provisions of this section shall be subject to renewal in the same manner as other motor vehicle operator's licenses.

(3) The court may also order the person to operate only a motor vehicle that is equipped with a functioning ignition interlock with or without geographic restrictions, which shall remain on the vehicle during the entire period of the restricted license. However, no state funds may be expended to provide a person with an ignition interlock that is ordered pursuant to this subdivision.

(d) Nothing in this section shall affect the admissibility in evidence, in criminal prosecutions for aggravated assault or homicide by the use of a motor vehicle only, of any chemical analysis of the alcoholic or drug content of the defendant's blood that has been obtained by any means lawful without regard to the provisions of this section.

(e) Provided probable cause exists for criminal prosecution for the offense of driving under the influence of an intoxicant under § 55-10-401, nothing in this section shall affect the admissibility into evidence in a criminal prosecution of any chemical analysis of the alcohol or drug content of the defendant's blood that has been obtained while the defendant was hospitalized or otherwise receiving medical care in the ordinary course of medical treatment.

(f)(1) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed a violation of § 39-13-213(a)(2)§ 39-13-218, or§ 55-10-401, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test; or

(2) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2)§ 39-13-218 or § 55-10-401 and has been previously convicted of§ 39-13-213(a)(2)§ 39-13-218 or § 55-10-401 the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

(3) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2)§ 39-13-218 or § 55-10-401 and a passenger in the motor vehicle is a child under sixteen (16) years of age, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

(4) The results of a test performed in accordance with subdivision (f)(1), (f)(2) and (f)(3) may be offered as evidence by either the state or the driver of the vehicle in any court or administrative hearing relating to the accident or offense subject to the Tennessee Rules of Evidence.

(g)(1) The period of license suspension for a violation of subsection (a) shall run consecutive to the period of license suspension imposed following a conviction for § 55-10-401 if:

(A) The general sessions court or trial court judge determines that the driver violated subsection (a); and

(B) The judge determining the violation of subsection (a) finds that the driver has a conviction or juvenile delinquency adjudication for a violation that occurred within five (5) years of the violation of subsection (a), for:

(i) Implied consent under this section;

(ii) Underage driving while impaired under § 55-10-415;

(iii) The open container law under § 55-10-416; or

(iv) Reckless driving under § 55-10-205, if the charged offense was § 55-10-401.

(2) In all other instances in which the same course of conduct results in a driver license being suspended for a violation of subsection (a) and for a violation of § 55-10-401, the suspension period shall run concurrently.

(h) If a driver's violation of subsection (a) and § 55-10-401 occur as part of the same incident, the period of driver license suspension for the two (2) violations shall not exceed the period of suspension imposed by the court for the violation of § 55-10-401.


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