TCA 55-10-406 Tests for alcoholic or drug content of blood - Implied consent - Administration - Liability - Refusal to submit to test - Suspension of license - Fine - Mandatory jail or workhouse sentence - Notice - Hearing - Use of analysis as later evidence.

Amendment to TCA 55-10-406- Deletes present law requirment about blood alcohol test timing - effective January 1, 2009

(a)  (1)  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 such person's blood, or both such 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 such person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, or was violating the provisions of §§ 39-13-106, 39-13-213(a)(2) or 39-13-218. For the results of such test or tests to be admissible as evidence, it must first be established that all tests administered were administered to the person within two (2) hours following such person's arrest or initial detention.

(2)  Any physician, registered nurse, licensed practical nurse, clinical laboratory technician, licensed paramedic, licensed emergency medical technician approved to establish intravenous catheters, or technologist, or certified or nationally registered phlebotomist who, acting at the written request of a law enforcement officer, withdraws blood from a person for the purpose of conducting either or both such tests, shall not incur any civil or criminal liability as a result of the withdrawing of such blood, except for any damages that may result from the negligence of the person so withdrawing. Neither shall the hospital nor other employer of the health care professionals listed in this subdivision (a)(2) incur any civil or criminal liability as a result of the act of withdrawing blood from any person, except for negligence.

(3)  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, and, if such driver is driving on a license that is cancelled, suspended or revoked because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the influence of an intoxicant under § 55-10-401, that the refusal to submit to such test or tests will, in addition, result in a fine and mandatory jail or workhouse sentence. The court having jurisdiction of the offense for which such driver was placed under arrest shall not have the authority to suspend the license of a driver who refused to submit to either or both tests, if the driver was not advised of the consequences of such refusal.

(4)  (A) If such person, having been placed under arrest and then having been requested by a law enforcement officer to submit to either or both such tests, and having been advised of the consequences for refusing to do so, refuses to submit, the test or tests to which the person refused shall not be given, and such person shall be charged with violating this subsection (a). The determination as to whether a driver violated the provisions of this subsection (a) shall be made at the same time and by the same court as the court disposing of the offense for which such driver was placed under arrest. If the court finds that the driver violated the provisions of this subsection (a), except as otherwise provided in this subdivision (a)(4), the driver shall not be considered as having committed a criminal offense; however, the court shall revoke the license of such driver for a period of:

(i)  One (1) year, if the person does not have a prior conviction for a violation of §§ 55-10-401, 39-13-213(a)(2), 39-13-218, 39-13-106, or 55-10-418, in this state, or a similar offense in any other jurisdiction;

(ii)  Two (2) years, if the person does have a prior conviction for an offense set out in subdivision (a)(4)(A)(i);

(iii)  Two (2) years, if the court finds that the driver of a motor vehicle involved in an accident, in which one (1) or more persons suffered serious bodily injury, violated this subsection (a) by refusing to submit to such a test or tests; and

(iv)  Five (5) years, if the court finds that the driver of a motor vehicle involved in an accident in which one (1) or more persons are killed, violated this subsection (a) by refusing to submit to such a test or tests.

(B)  For the purposes of this subdivision (a)(4), “prior conviction” means a conviction for one (1) of the designated offenses, the commission of which occurred prior to the DUI arrest giving rise to the instant implied consent violation.

(5)  In addition to the consequences set forth in this section, if the court or jury finds that the driver violated the provisions of this subsection (a) while driving on a license that was revoked, suspended or cancelled because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the influence of an intoxicant under § 55-10-401, such driver commits a Class A misdemeanor and shall be fined not more than one thousand dollars ($1,000), and shall be sentenced to a minimum mandatory jail or workhouse sentence of five (5) days, which shall be served consecutively, day for day, and which sentence cannot be suspended.

(6)  Any person who violates the provisions of this section by refusing to submit to either test or both such tests, pursuant to subdivision (a)(4), shall be charged by a separate warrant or citation that does not include any charge of violating § 55-10-401 that may arise from the same occurrence.

(b)  Any person who is unconscious as a result of an accident or is unconscious at the time of arrest or apprehension or otherwise in a condition rendering that person incapable of refusal, shall be subjected to the test or tests as provided for by §§ 55-10-405 -- 55-10-412, but the results thereof shall not be used in evidence against that person in any court or before any regulatory body without the consent of the person so tested. Refusal of release of the evidence so obtained will result in the suspension of that person's driver license, thus such refusal of consent shall give such person the same rights of hearing and determinations as provided for conscious and capable persons in this section.

(c)  A person whose license has been suspended by the court under this section may apply to the court in the county where the person resides or to the court in the county suspending such license for a restricted license. The judge of the court may order the issuance of a restricted license allowing the person to operate a motor vehicle for the purpose of:

(1)  Going to and from and working at the person's regular place of employment;

(2)  Going to and from a court-ordered alcohol safety program;

(3)  Going to and from a college or university in the case of a student enrolled full time in such college or university; and

(4)  Going to and from a scheduled interlock monitoring appointment.

Such order shall state with all practicable specificity the necessary time and places of permissible operation of a motor vehicle. The person may obtain a certified copy of the order, and within ten (10) days after it is issued, present it, along with an application fee of twenty dollars ($20.00), to the department of safety, which shall forthwith issue a restricted license embodying the limitations imposed in the order. After proper application and until such time as the restricted license is issued, a certified copy of the order may serve in lieu of a motor vehicle operator's license. Any restricted license issued under the provisions of this section shall be subject to renewal in the same manner as other motor vehicle operator's licenses.

(d)  Nothing in this section shall affect the admissibility in evidence, in criminal prosecutions for aggravated assault or homicide by the use of a motor vehicle only, of any chemical analysis of the alcoholic or drug content of the defendant's blood which has been obtained by any means lawful without regard to the provisions of this section.

(e)  Provided probable cause exists for criminal prosecution for the offense of driving under the influence of an intoxicant under § 55-10-401, nothing in this section shall affect the admissibility into evidence in a criminal prosecution of any chemical analysis of the alcohol or drug content of the defendant's blood that has been obtained while the defendant was hospitalized or otherwise receiving medical care in the ordinary course of medical treatment.

[Acts 1969, ch. 292, § 2; 1970, ch. 427, § 3; 1973, ch. 400, § 1; 1977, ch. 71, § 1; T.C.A., § 59-1045; Acts 1980, ch. 817, § 5; 1981, ch. 353, § 1; 1982, ch. 579, § 1; 1983, ch. 112, § 1; 1984, ch. 695, § 1; 1985, ch. 141, §§ 1, 3; 1987, ch. 318, §§ 1-4; 1988, ch. 840, § 1; 1993, ch. 390, § 1; 1995, ch. 355, § 1; 1996, ch. 911, § 1; 1998, ch. 986, § 2; 1998, ch. 1046, § 8; 2000, ch. 602, § 1; 2000, ch. 842, § 1; 2000, ch. 952, §§ 1, 2; 2001, ch. 110, § 1; 2002, ch. 855, § 8; 2004, ch. 626, § 1; 2005, ch. 483, §§ 1, 2.]