Can You Refuse a Breathalyzer in Tennessee? The Implied Consent Law Explained

By Nathan Cate, Nashville Criminal Defense Attorney | Cate Law

The officer has you out of the car. He says he smells alcohol. He says he wants you to blow into a machine.

Your mind is racing. Refuse and the case goes away, right? Or does refusing make things worse? What are they legally allowed to make you do?

Here’s the honest answer, straight from a Nashville criminal defense attorney who handles DUIs every week: Tennessee law doesn’t let you walk away clean just by saying no. But the decision you make in that moment will shape your case — and your license — for years.

Let me break down exactly how the implied consent law works in Tennessee, what happens if you refuse, and what to think about before you decide.

What Is Tennessee’s Implied Consent Law?

Tennessee’s implied consent law is found at [Tenn. Code Ann. § 55-10-406](https://law.justia.com/codes/tennessee/). Here’s the short version:

By driving on a Tennessee road, you have already agreed that if a police officer has probable cause to believe you are driving under the influence, you will submit to a chemical test of your breath, blood, or urine.

You agreed to this when you got your driver’s license. You agreed to it again every time you turned the key. That’s what “implied consent” means — the consent is baked into the privilege of driving.

This is separate from the criminal DUI charge. Implied consent is a civil issue involving your license. The DUI is a criminal issue. Both can go on simultaneously — and the outcome in one doesn’t automatically decide the other.

The Two Different Tests — Don’t Confuse Them

This is where people get hurt most often: there are actually two different breath tests, and the rules for refusing them are not the same.

1. The Roadside Portable Breath Test (PBT)

Before you’re arrested — while you’re still at the traffic stop — the officer may ask you to blow into a small handheld device. This is called a Preliminary Breath Test or Portable Breath Test (PBT).

Is it required? No. You can politely decline.
Is the result admissible in court? Generally no. PBT results are used for probable cause to arrest, not for a DUI conviction.
Does refusing a PBT trigger implied consent penalties? No. Implied consent only applies after a lawful DUI arrest.

2. The Post-Arrest Chemical Test (Breath or Blood)

After the officer arrests you for DUI and takes you to the station (or to a nearby draw site), you’ll be asked to take a real chemical test — typically an Intoximeter breath test or a blood draw.

This is the test the implied consent law is about.

Is it required? Yes, under implied consent.
Is the result admissible? Yes. A breath or blood alcohol concentration (BAC) at or above 0.08 is per se evidence of DUI.
What if I refuse? That’s where the penalties kick in.

What Happens If You Refuse After Arrest

If you refuse the post-arrest breath or blood test in Tennessee, you face automatic license consequences — separate from whatever happens with the DUI charge itself:

First refusal: 1-year license revocation
Second refusal (or any refusal with a prior DUI): 2-year revocation
Refusal while involved in a crash with injuries: 2 years
Refusal in a fatal crash: 5 years, and the refusal itself becomes its own criminal charge

There are no restricted licenses during most of these revocation periods. That means no driving to work. No driving the kids to school. No grocery runs.

And here’s the part most people don’t know: your refusal can be used against you as evidence at the criminal DUI trial. The prosecutor gets to tell the jury, “The defendant refused to take the test — you can infer he knew he would fail.”

Refusing doesn’t make the DUI case go away. It often makes it harder to defend.

What About a Blood Draw? Can Police Take Blood Without Consent?

For a long time, officers in Tennessee would call a nurse, hold you down, and draw your blood if you refused. That practice changed.

The U.S. Supreme Court in Missouri v. McNeely (2013) held that a warrantless blood draw is generally unconstitutional, absent exigent circumstances. Tennessee’s courts have followed that holding.

What does that mean in practice?

If you refuse the breath test, the officer will usually try to get a search warrant signed by a judge to compel a blood draw.
In Nashville, judges are often on-call overnight specifically for these warrants. It takes 30-90 minutes.
Once a warrant is signed, you cannot lawfully refuse the blood draw. Physical resistance = additional charges.

So: refusing the breath test triggers license revocation and usually results in blood being drawn anyway, just with a judicial stamp on it.

Is Refusing Ever the Right Move?

Sometimes — but it’s a judgment call that depends on facts you usually can’t assess in the moment.

Reasons a refusal might help:

If you genuinely believe your BAC is over a very high threshold (like 0.15+), a high BAC triggers enhanced DUI penalties under Tenn. Code Ann. § 55-10-402.
If you’re a repeat DUI offender, a BAC number is much harder to explain away than the absence of one.

Reasons a refusal often hurts:

You still face DUI prosecution on the officer’s observations (slurred speech, odor, performance on field sobriety tests, driving pattern).
You lose your license for a year under implied consent.
The refusal gets argued as consciousness of guilt.
Police will often get a blood warrant anyway.

The most common mistake: refusing under the belief that “if there’s no test, there’s no DUI.” That’s not how Tennessee law works. People get convicted of DUI all the time with no BAC — just on the officer’s testimony and field tests.

What to Do in the Moment

If you’ve been arrested and the officer is asking you to submit to a test, here’s what to remember:

Don’t argue. Whatever you decide, decide once. Don’t negotiate. Don’t explain. Don’t flip back and forth — Tennessee courts have held that a “conditional” or “delayed” consent counts as a refusal.

Don’t try to cheat the test. Putting something in your mouth, intentionally weak blows, or arguing with the technician all get logged as refusals.

Don’t give a statement. Whether you take the test or refuse, say: “I’d like to speak to a lawyer before answering any questions.” That’s your right, and it does not count as a refusal of the chemical test itself.

Remember the clock is short. Tennessee allows a very limited window to contact an attorney before the test. Know the phone number of a criminal defense lawyer before you ever need it.

Frequently Asked Questions

Can I ask for my own independent blood test?

Yes. Tenn. Code Ann. § 55-10-410 gives you the right to have a test performed by a physician of your choice at your own expense, after the state’s test. This can become important evidence if the state’s test is challenged later.

If I refuse, can they force me to take the test?

They cannot physically force a breath test. They can obtain a search warrant for a blood draw, and a warrant permits reasonable force. Once a warrant is signed, the blood comes out one way or another.

Does a refusal automatically mean I’m guilty of DUI?

No. The criminal case still requires proof beyond a reasonable doubt. But the refusal is evidence the prosecutor can use, and you’ve already lost your license for a year under implied consent — win or lose at trial.

Can I get a restricted license during the revocation?

For a first implied-consent refusal, Tennessee law now allows a restricted license with an ignition interlock device after a waiting period, under certain conditions. The rules are technical — an attorney can walk you through whether you qualify.

Does refusing help me win the DUI case?

Sometimes, but rarely the way people hope. If the officer didn’t observe much impairment and relied on the test, a missing test can create reasonable doubt. But if the officer has good observations, dashcam footage, and witness testimony, a refusal doesn’t save you.

What if I was too drunk to understand the implied consent warning?

This is actually a defense worth exploring. Officers are required to read you the implied consent advisement. If you were too impaired to knowingly and voluntarily refuse, the civil revocation can sometimes be challenged.

One Thing I Want You to Remember

Tennessee’s implied consent law is designed to make refusing costly. The decision isn’t a trick you can beat at the roadside. It’s a real legal choice with real consequences — license, criminal charge, and strategic defense all at stake.

You don’t have to make the perfect decision in the moment. You just have to make one decision, stop talking, and call a lawyer.

Charged with a DUI in Nashville? Let’s Talk.

If you’ve been arrested for DUI — whether you took the test, refused, or aren’t sure what you did — I want to hear your story before the State builds its version.

📞 Call or text (615) 664-8083 Free consultation. Available 24/7. Cate Law — 222 2nd Ave N, Suite 220, Nashville, TN 37201

This article is general information, not legal advice. DUI cases depend on specific facts, timing, and evidence. For advice on your situation, contact Cate Law for a free consultation.

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