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  1. #11
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    Default Re: Challenging a Search Warrant for a Blood Test

    He likely also refused the breath test. The blood test warrant was obtained because it's hard to compel a breath test but you can force a blood test.

  2. #12
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    Default Re: Challenging a Search Warrant for a Blood Test

    Quote Quoting flyingron
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    He likely also refused the breath test. The blood test warrant was obtained because it's hard to compel a breath test but you can force a blood test.
    Blood test cannot be mandated without a warrant and obviously require probable cause. I believe they do allow an exigency to allow bypassing the the requirement but that is applied as such a rule is in any other situation.


    But scotus does allow breath tests without a warrant but my understanding is refusing a breath test is not criminal under Tennessee law.


    Anyway, your post spoke to refusing a blood draw and scotus deemed it unconstitutional to criminalize refusal to submit to a blood draw without a warrant.

  3. #13
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    Default Re: Challenging a Search Warrant for a Blood Test

    Tenn Code 55-10-406 as it is currently written is indeed limited to breath tests (consistant with the Birchfield decision). It is still a class A misdemeanor. It still comes with a mandatory 1 year suspension for a first offense.

    I didn't say anything about refusing a blood draw. He clearly didn't do so, so that is irrelevant. I was talking about whether it was worth challenging the possibly illegal obtained blood draw in light of the possible charge of refusing the legally authorized (breath) test.

  4. #14
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    Default Re: Challenging a Search Warrant for a Blood Test

    Quote Quoting flyingron
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    Tenn Code 55-10-406 as it is currently written is indeed limited to breath tests (consistant with the Birchfield decision). It is still a class A misdemeanor. It still comes with a mandatory 1 year suspension for a first offense.

    I didn't say anything about refusing a blood draw. He clearly didn't do so, so that is irrelevant. I was talking about whether it was worth challenging the possibly illegal obtained blood draw in light of the possible charge of refusing the legally authorized (breath) test.
    this is from your post Ron:

    Who did a blood test? If the hospital did one with your consent earlier then the subsequent warrant can indeed obtain that sample.
    If you are saying that blood was involuntarily drawn on the order of the police prior to obtaining the warrant, then your ATTORNEY can make a good argument for excluding it.



    By the way, a refusal is as bad as the DUI itself in Tennessee. It's a class A misdemeanor as well. It has a mandatory one year suspension. About the only thing that probably makes this worth fighting is if you had a BAC over 0.20%.
    there is no mention of a breath test


    And you may want to refer to a current set of laws. The laws involved changed in 2017



    https://advance.lexis.com/documentpa...5-babf30b4b991

    1)
    The operator of a motor vehicle in this state is deemed to have given implied consent to a breath test for the purpose of determining the alcohol content of that operator's blood, a breath test for the purpose of determining the drug content of the operator's blood, or both tests. However, no such breath test may be administered pursuant to this section unless conducted at the direction of a law enforcement officer having probable cause to believe the operator was in violation of one (1) of the offenses set out in subsection (a).
    (2) Any law enforcement officer who requests that the operator of a motor vehicle submit to a breath test authorized pursuant to subdivision (a)(1), shall, prior to conducting the test, advise the operator that refusal to submit to the breath test:(A) Will result in the suspension by the court of the operator's driver license; and
    (B) May result, depending on the operator's prior criminal history, in the operator being required to operate only a motor vehicle equipped with a functioning ignition interlock device, if the operator is convicted of a violation of 55-10-401.


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