Under Tennessee DUI law, anyone who drives a motor vehicle in this state is deemed to consent to testing to determine the alcohol or drug content of the person’s blood. Tennessee Code Annotated 55-10-406. This is often referred to as the “implied consent law.” Before directing such a test, a law enforcement officer must 1) have reasonable grounds to believe the person was driving under the influence; and 2) inform the person of the consequences of refusal. The law allows you to refuse the testing, subject to a penalty for doing so. The penalty is license suspension. If your license is already suspended due to a vehicular homicide offense or DUI, the penalty includes a fine and mandatory incarceration.

Must the officer get your signature on an implied consent form for the testing to occur and be admissible? No. If you wish to refuse the testing, you must say so, and object to it being performed.

This issue was recently addressed by the Tennessee Court of Criminal Appeals in the case of State v. Gagne, E2009-02412-CCA-R3-CD (Tenn.App. 05-31-2011). In that case the Defendant was charged and ultimately convicted of DUI, after a vehicle accident.  Responding law enforcement officers became suspicious that the Defendant was under the influence of alcohol or drugs, based on observations of the Defendant and statements she made. The Defendant was transported to the hospital in an ambulance, and there given a blood test. The results were later introduced against the Defendant at trial. The Defendant’s attorney challenged the admissibility of the blood testing arguing that 1) testing the blood was an unconstitutional search and seizure; and 2) the testing should have been excluded because the State could not show that the Defendant signed an implied consent form.

In rejecting the argument, the Court of Criminal Appeals first addressed the constitutional issue and found the testing to be reasonable, both because it was based upon probable cause with exigent circumstances (the fact that evidence could be lost if not obtained quickly) and was also consensual, by law. In addressing whether it was necessary that the Defendant sign an implied consent form for the testing to be admissible, the Court found that a law enforcement officer’s testimony that he informed the Defendant of the right to refuse the testing and of the consequences of refusal, was sufficient. The State did not have to prove that the Defendant specifically consented to testing. Consent is the default condition. If the Defendant wanted to refuse testing, it was up to her to say so and to refuse it.

The implied consent refusal provision exists to help avoid a violent confrontation between a law enforcement officer and  an unruly suspect refusing to cooperate with implied consent. The refusal provision does not affect the constitutional or statutory authority to perform a warrantless search of a driver’s blood, where there are reasonable grounds to suspect the driver was under the influence.

So, if you choose to refuse the testing, you must expressly say so and refuse it. Simply not signing an implied consent form or not expressly agreeing to the test will not help you if you seek to exclude the results from a trial later.

Contact The Lanzon Firm for further information about what to do if you are the subject of a DUI investigation.