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![handle is hein.sag/sagtn0160 and id is 1 raw text is: STATE OF TENNESSEE
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202
January 13, 2010
Opinion No. 10-01
Effect of 2009 Tenn. Pub. Acts, ch. 324, on blood tests for alcohol or drug content
QUESTION
Whether the enactment of 2009 Tenn. Pub. Acts, ch. 324 (Public Chapter 324) allows law
enforcement to use search warrants or other legal means to obtain a blood specimen over a suspect's
express refusal of consent pursuant to Tenn. Code Ann. § 55-10-406?
OPINION
Public Chapter 324 requires a law enforcement officer having probable cause to believe that a
motorist involved in an accident resulting in injury or death of another has committed a violation of
Tenn. Code Ann. §§ 55-10-401 (driving under the influence), 39-13-213(a)(2) (vehicular homicide
resulting from intoxication), or 39-13-218 (aggravated vehicular homicide) to cause the motorist's
blood to be tested for alcohol or drug content. In all other cases, law enforcement officials must
honor the refusal of the motorist to undergo testing.
ANALYSIS
Tennessee's Implied Consent Statute provides that, if the operator of a motor vehicle who has
been placed under arrest for driving under the influence (DUI) refuses to give consent to a test to
determine the alcoholic or drug content of that person's blood, the test or tests to which the person
refused shall not be given.... . Tenn. Code Ann. § 55-10-406(a)(4)(A). The statute goes on to
state, however, that [n]othing in this section shall affect the admissibility in evidence, in criminal
prosecutions for aggravated assault or homicide by the use of 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. Tenn. Code Ann. § 55-10-406(d).
In Op. Tenn. Att'y Gen. 98-154 (Aug. 17, 1998), this Office opined that, save for
prosecutions for aggravated assault or homicide by the use of a motor vehicle, Tennessee Code
Annotated section 55-10-406 prohibits an arresting officer from obtaining and then executing a
search warrant to draw a sample of blood from a person arrested for DUI after the person arrested for
DUI refuses to submit to a test to determine the alcohol or drug content of that person's blood. The
following year, this Office reiterated that, notwithstanding the absence of an exclusionary rule
barring admission of legally administered tests, [t]he only circumstances under which law
enforcement may use search warrants or other legal means to obtain a test from a nonconsenting
driver are those where a driver may be charged with aggravated assault or homicide. Op. Tenn.](ViewImageLocal?handle=hein.sag/sagtn0160&div=1&collection=&method=preview&ext=.png&size=3)