Can Tennessee police get a blood sample from a DUI suspect who refuses, after the 2009 implied consent amendment?

Plain-English summary

The Tennessee District Attorneys General Conference asked the AG whether the 2009 amendment to the Implied Consent Statute (Public Chapter 324) opened a back door for officers to use search warrants to draw blood from DUI suspects who refused testing.

AG Robert Cooper said no, with one important exception. Public Chapter 324 carved out a narrow class of cases where blood testing is now mandatory regardless of consent: when an officer has probable cause to believe a driver involved in a crash with injury or death committed DUI, vehicular homicide by intoxication, or aggravated vehicular homicide. In those cases the officer must take the blood, and the result is admissible. In every other DUI case, the Implied Consent Statute still controls. A driver can refuse, the test cannot be administered over the refusal, and search warrants are not a workaround.

The opinion preserves a long line of Tennessee authority (Humphreys, Flittner, prior AG opinions from 1998 and 1999) holding that the statute makes officer-administered tests against a motorist's will a matter of policy choice, not just constitutional limit. The 2009 amendment narrowed the no-force rule for serious-injury crashes; it did not eliminate it for ordinary DUI arrests.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, the U.S. Supreme Court's 2013 decision in Missouri v. McNeely and 2016 decision in Birchfield v. North Dakota significantly reshaped the constitutional law of forced blood draws after this opinion was issued. Tennessee statutes have also been amended in the interim. Anyone facing a current DUI question should not rely on this opinion's framing without checking the current statute and case law.

Common questions

Q: What did Public Chapter 324 actually change in 2010?
A: It added a new subsection to Tenn. Code Ann. § 55-10-406 requiring law enforcement to test the driver's blood, with or without consent, when the officer has probable cause to believe the driver was involved in an accident causing injury or death and committed DUI, vehicular homicide by intoxication, or aggravated vehicular homicide. The result is admissible in any court or administrative hearing relating to the accident.

Q: Did the change let officers use search warrants in routine DUI stops?
A: No. Outside the injury or death context, the AG read the Implied Consent Statute as preserving the rule that "if consent is refused the test is inadmissible." The opinion treats Tennessee's no-force-without-injury policy as a deliberate legislative choice, not just a constitutional floor.

Q: What about a belligerent driver who physically resists in an injury crash?
A: The mandatory-testing subsection contains no exception for resistance. A footnote in the opinion notes that earlier Tennessee cases (Cleo Mason, 1996) upheld reasonable physical force to obtain a sample where the suspect was belligerent, and that Tenn. Code Ann. § 55-10-410 governs how the sample must be drawn (qualified personnel, sanitary conditions). The opinion does not bless any specific level of force.

Q: What if the officer fails to take the required test in an injury or death case?
A: Tenn. Code Ann. § 55-10-407 already made an officer's failure to request a test admissible in a criminal proceeding. With Public Chapter 324 making the test mandatory in injury or death cases, the AG observed that an officer's failure to do so would similarly be admissible. He flagged a potential missing-evidence instruction question under State v. Ferguson but did not resolve it.

Q: Does the Implied Consent Statute itself prevent constitutional challenges?
A: No. The opinion is statutory, not constitutional. A driver could still raise Fourth Amendment objections to a forced blood draw separately. Federal cases decided after this opinion (notably Missouri v. McNeely and Birchfield v. North Dakota) have significantly changed the constitutional landscape and should be consulted alongside the statute.

Q: Where does the duty to test fall, the officer or the medical staff?
A: The officer must "cause" the test to be performed. The actual draw must follow the procedure in Tenn. Code Ann. § 55-10-410, which contemplates qualified medical personnel. The AG observed that the new subsection (f) does not address situations where medical personnel refuse to draw a sample.

Q: Can a driver still be prosecuted for DUI without the test?
A: Yes. The test is one piece of evidence; refusal is admissible against the driver under § 55-10-407. The Implied Consent Statute does not bar the prosecution; it only bars administering the test over refusal in non-injury cases.

Background and statutory framework

Tennessee's Implied Consent Statute has long been built on a trade. Anyone driving in the state implicitly consents to a blood or breath test for alcohol or drugs upon a lawful arrest for DUI. But § 55-10-406(a)(4)(A) gave the driver a statutory escape hatch: if the driver expressly refuses the test, "the test or tests to which the person refused shall not be given." The AG's 1998 and 1999 opinions, followed by State v. Humphreys (Tenn. Crim. App. 2001) and State v. Flittner, read this as a deliberate choice to avoid violent confrontations between officers and motorists. Even with a search warrant, the test could not be administered.

Subsection (d), however, kept open a window for the worst cases. It said nothing in the section affected admissibility, in aggravated assault or vehicular homicide prosecutions, of "any chemical analysis . . . obtained by any means lawful." Courts read that as letting officers obtain blood by any legal means (including a warrant) and use the result in those serious cases. State v. Huskins (Tenn. Crim. App. 1998) called this the "net effect" of subsection (d).

Public Chapter 324, effective July 1, 2009, added a new subsection (f) that did three things: (1) it made testing mandatory (not just allowed) in DUI accidents causing injury or death; (2) it tied the trigger to officer probable cause about DUI, vehicular homicide by intoxication, or aggravated vehicular homicide, rather than to the eventual charging decision; and (3) it expanded admissibility to any hearing related to the accident, not just aggravated assault or homicide prosecutions.

The AG's analysis: Public Chapter 324 expanded the mandatory-test zone, but did nothing to subsection (a)(4)(A)'s "test shall not be given" rule for ordinary DUI refusals. The legislature could have expanded force-of-test authority across the board and chose not to. The Implied Consent Statute therefore continues to bar warrant-based blood draws in ordinary DUI stops, even though the Fourth Amendment might independently allow them.

Citations and references

Statutes:

• Tenn. Code Ann. § 55-10-401 (DUI offense)
• Tenn. Code Ann. § 55-10-406 (Implied Consent Statute, including new subsection (f) added by 2009 Pub. Acts ch. 324)
• Tenn. Code Ann. § 55-10-407 (admissibility of failure to test)
• Tenn. Code Ann. § 55-10-410 (procedure for drawing blood samples)
• Tenn. Code Ann. § 39-13-213(a)(2) (vehicular homicide by intoxication)
• Tenn. Code Ann. § 39-13-218 (aggravated vehicular homicide)
• 2009 Tenn. Pub. Acts ch. 324

Cases:

• State v. Humphreys, 70 S.W.3d 752 (Tenn. Crim. App. 2001), Tennessee Court of Criminal Appeals
• State v. Flittner, 2001 WL 1597739 (Tenn. Crim. App. Dec. 14, 2001), Tennessee Court of Criminal Appeals
• State v. Huskins, 989 S.W.2d 735 (Tenn. Crim. App. 1998), Tennessee Court of Criminal Appeals
• State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), Tennessee Supreme Court (missing-evidence instruction)
• State v. Stowers, 649 S.W.3d 607 (Tenn. Crim. App. 1983), Tennessee Court of Criminal Appeals
• State v. Gilbert, 751 S.W.2d 454 (Tenn. Crim. App. 1988), Tennessee Court of Criminal Appeals
• State v. Cleo Mason, 1996 WL 111200 (Tenn. Crim. App. Mar. 13, 1996), Tennessee Court of Criminal Appeals

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-001.pdf

Original opinion text

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. Att'y Gen. 99-179 (Sept. 17, 1999).

Cases decided after those opinions supported this interpretation. In State v. Humphreys, the Tennessee Court of Criminal Appeals explained that "the State of Tennessee, through its enactment of Tenn. Code Ann. § 55-10-406(a)(2) and (a)(3), has adopted a policy position prohibiting law enforcement officers from administering a breath or blood alcohol test against the motorist's will. Instead, in an effort to avoid potentially violent confrontations between private citizens and law enforcement officers, the state has elected to permit the motorist to refuse the test." Humphreys, 70 S.W.3d 752, 761 (Tenn. Crim. App. 2001). Thus, in all cases other than prosecutions for aggravated assault or homicide by the use of a motor vehicle, "if consent is refused the test is inadmissible." State v. Flittner, No. M2000-02367-CCA-R3-CD, 2001 WL 1597739, at *3 (Tenn. Crim. App. Dec. 14, 2001).

Effective July 1, 2009, Public Chapter 324 amended Tenn. Code Ann. § 55-10-406 by adding the following new subsection:

(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 §§ 55-10-401, 39-13-213(a)(2) or 39-13-218, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of such driver's blood. Such 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 such test.
(2) The results of a test performed in accordance with this subsection may be offered as evidence by either the state or the driver of the vehicle in any court or administrative hearing relating to such accident or offense subject to the Tennessee rules of evidence.

2009 Tenn. Pub. Acts ch. 324. We have been asked to consider whether the enactment of this provision alters the conclusion that, when there will be no prosecution for aggravated assault or homicide, law enforcement must honor the refusal of a driver to undergo testing.

The new subsection (f) in large part makes explicit what was previously a matter of statutory construction. Subsection (a)(4)(A) provides, as a matter of legislative largesse, that a motorist may expressly refuse to submit to a blood test, notwithstanding the fact that the statutorily created implied consent of the motorist otherwise permits the warrantless search of his breath or blood. Flittner, 2001 WL 1597739, at *3; Humphreys, 70 S.W.3d at 761. The "net effect" of subsection (d) has been read to strip defendants in cases of aggravated assault and homicide by use of a motor vehicle of this protection, leaving them with only lesser constitutional protections. State v. Huskins, 989 S.W.2d 735, 739 n.4 (Tenn. Crim. App. 1998). Public Chapter 324 limits a suspect's statutory right to refuse in cases of a DUI injury accident and now makes clear that blood test evidence is indeed admissible in such circumstances. Additionally, the admissibility of blood test evidence no longer hinges on the motorist's status as a party defendant to a prosecution for aggravated assault or vehicular homicide; it turns, rather, on law enforcement's possessing probable cause to believe that the motorist has been driving under the influence and has injured or killed another. 2009 Tenn. Pub. Acts ch. 324, § 1. The evidence, moreover, may be offered not only in prosecutions for aggravated assault and vehicular homicide but in any hearing relating to the accident. Id. Finally, administration of a blood test is now mandatory rather than merely permissible under the enumerated circumstances.

While Public Chapter 324 somewhat broadens the admissibility of blood test evidence with respect to DUI incidents that involve injury or death of another, the key feature of the Implied Consent Statute that previously compelled the conclusion that law enforcement must otherwise honor the refusal of a motorist to undergo testing, however, remains intact. Subsection (a)(4)(A) retains the "policy position prohibiting law enforcement officers from administering a breath or blood alcohol test against the motorist's will." Humphreys, 70 S.W.3d at 761. Outside the context of accidents resulting in the injury or death of another, then, testing conducted over the motorist's express refusal of consent, even by warrant, is not legal for purposes of the statute.

We observe that Tenn. Code Ann. § 55-10-407 provides that the failure of a law enforcement officer to request the administering of a test is admissible in a criminal proceeding. Tenn. Code Ann. § 55-10-407(a). Because the new subsection (f) added to Tenn. Code Ann. § 55-10-406 mandates testing in DUI accidents resulting in injury or death of another, a law enforcement officer's failure to abide by that directive also would likely be admissible in evidence. But cf. State v. Ferguson, 2 S.W.3d 912, 917 n.11 (Tenn. 1999) (providing for missing evidence instruction where "the defendant would be unable to obtain comparable evidence through reasonably available means" and "the production of which would more probably than not be of benefit to the defendant"). In our view, that prospect does not detract from the conclusion that, in cases outside of those specified in Public Chapter 324, if consent is refused the test is inadmissible.

The new subsection (f) carves out no exceptions to the mandatory testing for law enforcement officers confronted with a belligerent suspect who physically refuses to allow blood to be withdrawn, or with medical personnel who refuse to withdraw the sample from the suspect. Tennessee Code Annotated § 55-10-410 prescribes the method for the taking of blood samples for testing. The purpose of the statute is to "protect the donor [defendant] from being subjected to unhealthful conditions in the procurement of a blood sample and to prohibit the donor [defendant] from being subjected to unqualified people taking samples." State v. Stowers, 649 S.W.3d 607, 608 (Tenn. Crim. App. 1983). Our courts have held, however, that the State is not required to prove compliance with this statute as a prerequisite to admitting the results of the blood alcohol test. See, e.g., State v. Gilbert, 751 S.W.2d 454, 461 (Tenn. Crim. App. 1988). Additionally, the use of reasonable physical force by law enforcement officers to obtain a blood specimen has been upheld in a situation where a suspect was belligerent. See State v. Cleo Mason, No. 02-C-01-9310-CC-00233, 1996 WL 111200, at *7-8, 12 (Tenn. Crim. App. Mar. 13, 1996).

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

DESHEA DULANY FAUGHN
Assistant Attorney General

Requested by:
Honorable James W. Kirby
Executive Director
Tennessee District Attorneys General Conference
226 Capitol Boulevard, Suite 800
Nashville, TN 37243-0890