SHOULD I AGREE TO TAKE A BREATH OR BLOOD TEST?

by Jonathan Carroll and Ryan C. Davis

Should I agree to take a breath or blood test? Once an officer has determined that he or she has probable cause to believe that you are driving under the influence, the officer may ask you to submit to a chemical test to determine your blood alcohol concentration (BAC).  This typically occurs after field sobriety tests have been conducted (see post on field sobriety tests). Chemical tests are conducted in the form of either a breathalyzer test or a blood test.  The results of these tests could help you prevent an arrest or provide a defense for your case, if your BAC is below 0.08. On the other hand, you could also be voluntarily giving prosecutors evidence which will be used to convict you. In fact, if your BAC result is above 0.2, your statutorily required minimum jail sentence may increase from 48 hours to 7 days.

So, can you refuse to submit to these tests?  Yes. You have the right to refuse to allow an officer to conduct breath or blood tests.  However, there will be negative legal consequences if you choose to do so. Under the Tennessee Implied Consent Law, if you refuse a breath test, there is an automatic penalty against you.  If you have not previously violated the Implied Consent Law, the penalty is the loss of your driver’s license for one year. You will be able to apply for a restricted license during that period, but you will be required to pay for and install an ignition interlock device on your car.  However, this is considered a civil penalty and not a criminal conviction. It is also important to remember that the arresting officer must inform you of these consequences before any test is administered.  If an officer fails to inform you of these penalties, your attorney may be able to suppress the results of any breath tests you performed.

Regarding blood tests, however, things get a little more complicated. Until recently, an individual who refuses a blood test could not be charged with an implied consent violation. Our state and Federal courts have long since recognized that the level of intrusion for a blood draw is substantially higher than that of a breath test. However, a recent change in Tennessee law (T.C.A. §55-10-406) provides that someone who refuses a blood test can now be charged with an implied consent violation. The problem with this new law is that it is in direct contradiction to Tennessee Court of Criminal Appeals holding in State v. Henry, 539 S.W.3d 223 (Tenn. Crim. App. 2017). The Court in Henry held that Implied Consent does not justify a warrantless blood draw under the U.S. and TN constitutions. Thus, while the statute may have changed, it is likely not enforceabe. Nonetheless, any officer who believes there is probable cause for a DUI arrest can easily obtain a search warrant for a blood test, and should do so. Such a search warrant would absolve any implied consent violation. Likewise, any blood evidence that is obtained without consent and without a search warrant should be suppressed and inadmissiable, under most circumstances. Even when a search warrant is obtained, time is usually your friend in these matters. There is no harm in requiring an officer to follow the law before obtaining your blood sample. Additionally, blood tests are typically a more reliable and more precise measurement of BAC, if the blood draw and lab tests are performed accurately.

This is great to know, but what do I do? The problem with answering this question is that it’s a judgment call, and an impaired person may not exercise the best judgment. As a general rule, if you are suspected of DUI and you honestly believe you have not had too much to drink and you do not feel impaired, it may be beneficial for you to submit to either a breath or blood test. Even if you are slightly over 0.08, a low result may assist you in reaching a favorable settlement in your case, depending on the jurisdiction you are arrested in. However, if you know that you had too much to drink and shouldn’t have been driving, it does nothing but hurt your case to voluntarily submit to a chemical test. You would only be making matters worse for yourself. It goes without saying, but the best advice I can give when I’m asked this question is to avoid driving while impaired in the first place, and take a Lyft or Uber. An impaired person can rarely be trusted to make the best decisions when it counts the most.