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We are often asked if it is better to consent or to refuse to take a chemical test when you are pulled over on suspicion of DUI in Tennessee. Unfortunately, there is no easy answer to this question, as it involves a complex interplay between a DUI charge and a violation of Tennessee’s Implied Consent Law.

Tennessee’s Implied Consent Law is found in Tennessee Code Section 55-10-406. It applies to every county, including a DUI in Clarksville, Montgomery County. This law states, in part:

Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person's blood, a test or tests for the purpose of determining the drug content of the person's blood, or both tests. However, no such test or tests may be administered pursuant to this section unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants…

Therefore, the Implied Consent Law is triggered if you are pulled over for suspicion of DUI. It is important to note that this is a separate charge from a DUI. Thus, if you refuse to take a breath or blood test in Montgomery County then you are looking at a possible charge for violation of the implied consent law in addition to a charge of DUI. Violation of implied consent is civil in nature, and is not a criminal charge. However, violation of the implied consent law may cause you to have your drivers’ license revoked for one year, and can be more severe for subsequent violations.

Refusing a chemical test does not mean that you will automatically be found innocent of a DUI due to lack of evidence because you could also be charged with DUI in the officer’s opinion based upon the field sobriety tests that may have been conducted at the scene. In light of the way a DUI and implied consent charge work together, it is hard to say that refusal of a blood or breath test is always the best policy because sometimes it is and sometimes it is not.

It is important to know beforehand that if you do submit to a blood test, you are entitled to request a subsequent independent test of your own, but your attorney will have to do this for you during the court process. In Tennessee, you do not have the right to speak with a DUI criminal defense attorney in Montgomery County before deciding whether or not to submit to a breath or blood test, so knowledge of your rights and the consequences of your choices before the incident occurs is very important.

There is one other important consideration that you should discuss with your DUI criminal defense attorney if you are charged with violation of implied consent. Tennessee Code requires the following:

Any law enforcement officer who requests that the driver of a motor vehicle submit to either or both tests authorized pursuant to this section, for the purpose of determining the alcohol or drug content, or both, of the driver's blood, shall, prior to conducting either test or tests, advise the driver that refusal to submit to the test or tests will result in the suspension by the court of the driver's operator's license; if the driver is driving on a license that is cancelled, suspended or revoked because of a prior conviction as defined in § 55-10-405, the refusal to submit to the test or tests will, in addition, result in a fine and mandatory jail or workhouse sentence; and if the driver is convicted of a violation of § 55-10-401, that the refusal to submit to the test or tests, depending on the person's prior criminal history, may result in the requirement that the person be required to operate only a motor vehicle equipped with a functioning ignition interlock device. The court having jurisdiction of the offense for which the driver was placed under arrest shall not have the authority to suspend the license of a driver or require the driver to operate only a motor vehicle equipped with a functioning ignition interlock device pursuant to § 55-10-417 who refused to submit to either or both tests, if the driver was not advised of the consequences of the refusal.

You must be advised by an officer of the consequences of your refusal, and you will usually be asked to sign a form verifying the officer so instructed you. If you are not so advised, your DUI criminal defense attorney can likely prevent the revocation of your license. Lastly, it is up to the officer which form of chemical testing to offer you. Please consult with a knowledgeable, experienced DUI criminal defense attorney if you find yourself facing these charges.
Marshall Taylor
1/28/2016 12:31:57 pm

Charged with dui and implied consent

Reply
Christy R. Proctor
1/28/2016 04:30:58 pm

Hi, Marshall! I'm Ryan McFarland's paralegal, Christy Proctor. We'd be happy to discuss those charges with you at any time. Feel free to contact us at (931) 516-9009 or you can send a message to our facebook page, Ryan K. McFarland Law.

Reply
Santana Senemounnarath
4/9/2016 09:20:17 am

Charged with Dui open container and impied consent. I asked for my attorney to be present at the time because I did not understand what they were reading me. They told me I did not have the right to an attorney at this time.




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