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The Fourth Amendment to the United States Constitution and Article I, Section VII of the Tennessee Constitution prohibit unreasonable searches and seizures. What is a reasonable search? A search or arrest without a warrant based upon probable cause is unreasonable unless . . . an exception to this rule applies. There are many types of exceptions but one recognized exception is that a warrantless arrest, search or seizure may be justified by “exigent” circumstances. Generally, the surrounding circumstances must be an emergency situation or where evidence could be destroyed if the police must take time in order to obtain a warrant. Recently, the United States Supreme Court, heard oral arguments in Missouri v. McNeely on the issue of whether a police officer may obtain a blood sample from a suspected drunk driver without a warrant. The justification for the warrantless search is that alcohol naturally dissipates in the blood and therefore there is not sufficient time to obtain a warrant before requiring the blood sample.
In Tennessee, the police may not require a suspected first time drunk driver to submit to a blood test without a warrant unless the driver is involved in an accident that causes injuries or a death or there is a child under sixteen years old in the vehicle. The police may however, require someone who has already been convicted of DUI to submit to a blood test without first obtaining a warrant. If the Supreme Court rules in McNeely that the police must obtain a warrant to require someone suspected of drunk driving to submit to a blood test, Tennessee law may have to change. The Supreme Court sets the minimum level of protection with respect to the Federal Amendments, but the states can choose to give more protection with their own constitutional provisions.
Tennessee drivers need to be aware that when they receive their license, they are giving their implied consent to submit to a blood test if they are suspected of drunk driving. If a driver refuses to give a blood sample, he or she may avoid a conviction for the DUI, but still face the loss of his or her license because of the refusal to submit to the blood test. This is called an implied consent violation and is a civil—not criminal—matter.
