A blood draw for testing its alcohol content is still considered a search under existing federal and state law. Fourth Amendment rights and privacy concerns apply. The Tennessee Court of Criminal Appeals, in State v. Brown, W2014-00162-CCA-R9-CD (Tenn.Crim.App. 4-30-2015), has again (consistent with prior appellate opinions) reviewed Tennessee’s statutory provisions requiring a blood draw under certain circumstances and determined they not dispense with the constitutional warrant requirement (and are therefore not unconstitutional). Also like prior decisions, this particular opinion did not address the question of whether the mandatory blood draw provisions render ‘implied consent’ not revokable.

In the Brown case, the defendant was charged with DUI and other offenses after being involved in an automobile accident. Over the defendant’s express refusal, police ordered and obtained blood evidence indicating the defendant’s blood alcohol content was over .20%. Police likely could have obtained a warrant to do the blood draw. But they did not. They proceeded under what they believed to be mandatory blood draw provisions (accident with injury). The trial court granted the defense motion to exclude the evidence as having been obtained in violation of the search warrant requirement and not pursuant to any recognized exception.

Tennessee has an ‘implied consent’ law requiring drivers who seek a license to operate a vehicle on the public roads to consent to blood draws. Consent is an exception to the warrant requirement. But the ‘implied consent’ statute also provides that a person may revoke consent at the price of certain statutory penalties (primarily the loss of driver’s license). Tennessee appellate courts have not yet expressly determined whether the mandatory blood draw circumstances make implied consent not revokable (though the resolutions of the cases suggest they do not).

In the Brown case, the State did not present implied consent arguments to the trial court and so the argument was not considered on appeal. The Court of Criminal Appeals rejected exigent circumstances as an exception (as the evidence indicated police could have reasonably sought a warrant had they attempted to do so, and only did not attempt to do so based on their conclusion that it was unnecessary). The trial court ruling excluding the evidence was affirmed.

For more information on when and whether blood draw evidence is admissible in a criminal case, contact The Lanzon Firm.