Archive for June, 2009

Your Right to Refuse a Breath Test or Blood Test Has Changed!

It is fairly common knowledge that Tennessee citizens have long had the statutory right to refuse an officer’s request to submit to a chemical test of the officer’s choice if the officer had “reasonable grounds” (probable cause) to believe the driver had committed the offense of Driving Under the Influence (DUI or DWI) in most DUI cases.  As of July 1, 2009, however, this law has changed. Tennessee Public Chapter 324 has amended Tennessee Code Annotated Section 55-10-406 to eliminate the right of the driver to refuse a breath test, blood test, or urine test if the law enforcement officer has probable cause to believe that the driver has committed the crime of DUI, vehicular assault or vehicular homicide and was involved in an accident resulting in the injury or death of another.


If the officer has probable cause to believe the driver has committed one of aforementioned violations AND an accident with injury or death occurs, the officer is required to test the driver to determine the alcohol or drug content in the driver’s blood.  The driver does not have the right to refuse the requested test.

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Does a “designated driver” owe a legal duty to aid or protect intoxicated passengers?

This question came before the Tennessee Supreme Court in 2008.  In this case, Downs ex rel. Downs v. Bush, 263 S.W.3d 812 (Tenn. 2008), the mother of a Ryan Downs, a passenger in the bed of his friend’s pick up truck, filed a wrongful death complaint against several of her son’s friends when Ryan, after becoming intoxicated, exited the bed of the truck, ran onto the highway, and was struck by two vehicles, causing Ryan’s death.

The Tennessee Supreme Court considered whether Mr. Downs’ friends had a special duty to aid or protect Mr. Downs because of their close relationship as best friends and roommates.  The Court held that the law did not impose any special relationship upon the friends of the deceased by virtue of this relationship.

Furthermore, the Court ruled, in the first case of this kind to be brought before the Court, that the “designated driver” did not owe Mr. Downs any special legal duty more than the customary duty to exercise reasonable care when driving the vehicle.  The Court ruled against Mrs. Downs’ argument that a designated driver was required to take affirmative action to keep intoxicated passengers inside the passenger compartment of the vehicle and to ensure that the intoxicated passenger is not abandoned in a position of peril along the journey.  Instead, the Tennessee Supreme Court ruled that the public was better served by encouraging individuals to serve as designated drivers rather than adopting a policy that could potentially discourage the practice.

To rule otherwise, the Tennessee Supreme Court would have impliedly discouraged designated drivers and left persons who were intoxicated or otherwise under the influence of drugs and/or alcohol to drive under the influence, thus committing the criminal offense of Driving Under the Influence (DUI) in violation Of Tennessee Code Annotated section 55-10-401.  While the facts of this case cause one to be very sympathetic toward the family of the deceased, it is Mr. Oberman’s opinion that the Tennessee Supreme Court made the correct decision.






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