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Should I consent to a DUI blood or breath test?

by | Jan 6, 2022 | Criminal Defense |

Tennessee DUI laws are strict. Anyone convicted of a first offense DUI must spend a minimum of 48 hours jail, up to maximum of 11 months 29 days. Clients are usually worried when they hear “mandatory minimum sentence” and are looking at jail time, even if they’ve never had anything on their record. The likelihood of DUI conviction comes down to the evidence that the State has, and blood or breath test evidence is a huge part of that equation.

If the defendant’s blood was never taken for BAC (blood alcohol content) analysis, and he or she never did a Breathalyzer test, then prosecutors are in a worse position when needing to prove intoxication. So the question I often receive is whether or not to submit to one of these tests when under investigation for DUI?


First, there is no clear line rule for this, and oftentimes the courtroom is the place to make your legal argument, not on the side of the road. An attorney in court can convince the Judge that the police did not have probable cause to pull you over. You’re not going to convince the officer standing in front of you. So if you find yourself in this situation, here are the ways to evaluate this question.

  1. Police officers have the authority to ask you to provide a blood or breath sample if they have probable cause you were driving under the influence.
  2. You do not ever have to consent to the blood or breath test request, and can flatly refuse.
  3. If you refuse the test, you will be subject to the civil penalty of violating the Implied Consent laws in Tennessee. The result of this will be the suspension of your driver license for 11 months and 29 days. There is no other way for the State to obtain your blood, unless they have a warrant signed by a Judge.
  4. If the officer obtains a warrant for your blood signed by a Judge, you should comply.
  5. If you voluntarily consent to the test, the results can be used against you in your DUI court proceedings.
  6. If the BAC level on your test is .08 or higher, you are legally intoxicated.

If you are convicted of a DUI first offense, part of the penalty is the suspension of your driver license for 11 months and 29 days, which is the same time period as violation of the Implied Consent law. So you obviously have to weigh the pros and cons here of this situation.

I will also note that for CDL drivers the limit is .04 and there are other considerations here that could affect loss or suspension of the CDL. Also important to note here, is that if you are an undocumented immigrant who does not have a driver license, violating the Implied Consent law, practically speaking, would not have a major impact on your ability to drive a car, as you are already prohibited from driving.

Without definitive blood or breath test evidence, the State will need to use the perceptions and statements of the officer, as well as any video footage. There could be room here for argument as to the accuracy of these perceptions, and video footage may even corroborate the defendant’s version of the events. This could result in your attorney convincing the prosecutor to reduce the charge, or convincing the court to dismiss it. A lab test is much harder, and more expensive, to challenge.

If you find yourself with DUI charges, call attorney Matt Maniatis at (615) 366-1211. Maniatis Law is located at 211 Donelson Pike, Ste 204, Nashville, TN 37214.