THE BARNES & Fersten Implied Consent Law Attorneys in TN

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Attorney John Barnes, Attorney Brandon D. Fersten, and Attorney Oscar Butler standing outside

Knoxville Implied Consent Attorneys


By driving a motor vehicle in the state of Tennessee you impliedly give consent to provide a blood or breath sample to a police officer who has probable cause to believe you committed DUI, vehicular assault, aggravated vehicular assault, vehicular homicide, and aggravated vehicular homicide. A motorist’s license will be revoked for a minimum of one (1) year, depending on the motorist’s criminal history, if the motorist is found guilty of implied consent.


Consequently, it is necessary that an individual charged with DUI and implied consent retain a skilled DUI and implied consent attorney. At Barnes & Fersten, our attorneys have a longstanding and successfully history of defending clients against both implied consent and DUI charges.

Can I refuse a blood or breath test?

A common misconception regarding the implied consent law is that you automatically must provide a blood or breath sample if it is requested by law enforcement. However, the officer must have probable cause to believe you are under the influence of an intoxicant affecting the central nervous system, and therefore your ability to safely operate a motor vehicle to request a chemical test. This means that an officer cannot legally ask any motorist to provide chemical testing. Instead, the officer must specify specific facts to establish probable cause that a chemical test would likely provide additional evidence that the individual is too impaired to safely operate a vehicle.

If you refuse a blood or breath test the officer will charge you with implied consent unless the officer gets a search warrant thereafter. However, a DUI conviction carries a similar loss of license with the additional punishment of 48 hours to 11 months and 29 days in jail. Thus, providing a blood or breath sample is only giving the state more evidence to use against you to convict you of DUI. Moreover, as this page will discuss in further detail, you do not automatically lose your license if you are charged with implied consent because there are still numerous legal issues that may allow your attorney to get your implied consent charge dismissed.

Attorney John Barnes and Attorney Brandon D. Fersten standing outside

Will the judge take my license at my first court date?

No, the judge will not take your license at your first court date. You are entitled to a hearing where the court would have to find two main requirements: (1) the officer had probable cause authorizing the officer to legally request a blood or breath sample; and (2) the officer properly advised you of the consequences of failing to comply by agreeing to provide a sample. The advisement of the consequences of refusing a chemical test does not have to be specific. This means the officer does not have to specify the length of time for a license suspension but only the general advisement that the motorist’s license will be suspended for failure to provide a chemical sample.  

As such, the implied consent charge will not be addressed at your first court date. You also do not have a right to a jury trial on an implied consent charge; although you may have the implied consent charge tried by a jury under limited circumstances.

Preliminary Hearings: Instead, the implied consent charge will be addressed at a preliminary hearing if you have a preliminary hearing. Many times, the implied consent charge will be handled jointly with the DUI during plea negotiations. In fact, in most cases where the State offers to reduce a DUI to a reckless driving, reckless endangerment or another lesser charge from a DUI, the State may dismiss the implied consent charge resulting in no loss of license.

Will my driver’s license be taken on the day of my preliminary hearing if I am found in violation of the implied consent law?

Potentially, unless your lawyer understands the law regarding the implied consent charge and DUI’s, so they are properly prepared to defend your rights, and driving privileges by getting the implied consent charge dismissed at a preliminary hearing if possible, and potentially the DUI case along with it. Many lawyers are not aware that you can appeal a general sessions court judge’s finding of guilt on the implied consent charge at a preliminary hearing.

Your lawyer should have your notice of your appeal ready to submit to the court after the preliminary hearing in case the judge finds you guilty of implied consent, so your license is not taken from you after the preliminary hearing.

What is the punishment or penalty for an implied consent violation?

The punishment or penalty for an implied consent charge is contingent upon the driver’s criminal history. The number of previous convictions of DUI, vehicular homicide by intoxication, aggravated vehicular homicide, vehicular assault or aggravated vehicular assault will determine the punishment or penalty for an implied consent violation as follows:


  • One (1) year: No previous convictions (within the past ten (10) years);
  • Two (2) years: One (1) previous conviction or vehicular assault with an implied consent violation; and
  • Five (5) years: Vehicular homicide (one or more persons killed in an accident.


A prior violation may only be used against you if it occurred within ten (10) years of the current violation date.

How can a DUI and implied consent lawyer prevent me from losing my license and serving jail time?

There are countless legal issues that may cause your lawyer to get your implied consent and DUI charges dismissed or resolved favorably that prevents you from losing your license and serving jail time. There are three (3) phases of a DUI investigation: (1) vehicle in motion; (2) personal contact; and (3) pre-arrest screening. During each phase of a DUI investigation there are countless issues that a skilled DUI and implied consent lawyer will look for that may result in a lack of probable cause or an illegal stop, arrest, or seizure. If your lawyer can successfully suppress certain evidence from being admissible in court, the officer potentially would not have had enough evidence, probable cause, to request a blood or breath sample under the implied consent law.


At Barnes & Fersten, our attorneys investigate DUI investigations conducted by police officers across East Tennessee, including but not limited to Knox County, Blount County, Anderson County, Loudon County, Sevier County, Roane County, and Morgan County. For more information regarding some legal issues that may result in a dismissal of the implied consent and DUI charge please refer to


More importantly, please schedule a free consultation today at Our attorneys will listen intently to what led to your arrest for DUI and implied consent, and we will ask you specific questions based on the law to determine which legal defenses may apply in your case that way we can begin forming our strategy for your defense beginning with our initial consultation.

Out-of-state driver’s license: Can a Tennessee judge physically take possession of my out-of-state driver’s license?

Legally a Tennessee judge does not have the authority to physically take possession of your out-of-state driver’s license. Your driving privileges will be revoked in the state of Tennessee, and it will likely be revoked within a reasonable amount of time in your home state. It could take a few weeks or a few months until you are notified by your home state that your driving privileges are revoked due to an implied consent violation in Tennessee. Until you are notified by your home state your license will not be affected by a Tennessee violation, but it inevitably will be affected as soon as your home state receives notification from Tennessee.


Unfortunately, there are times where Tennessee judge take possession of an out-of-state license and generally there is nothing your lawyer can do to prevent the judge from taking it other than notifying the judge that it is an out-of-state license to which the judge does not have authority over. However, if a Tennessee judge takes your license, you should be able to go to your DMV in your home state to get a new valid license for the time being until your home state learns of your violation.

Restricted Driver’s License: Can I get a restricted driver’s license if I lose my license due to an implied consent violation?

Yes, if you are found guilty of implied consent you may obtain a restricted driver’s license with either: (1) geographic restrictions; or (2) an ignition interlock device without geographic restrictions. It is important that your lawyer discusses the two potential restricted driver’s licenses with you so you can determine what is best for you under your circumstances.  

After refusing to give a sample, I changed my mind and told the officer I would give him a breath or blood sample, but I was still charged. Is this legal?

Unfortunately, yes. Although an implied consent charge is handled in criminal court, it is technically not a criminal charge. Instead, an implied consent charge is considered a civil or administrative violation. As such, the State does not have to prove you guilty of implied consent beyond a reasonable doubt, and you also do not have several other rights that are available in a criminal case. For example, once you refuse to provide a blood or breath sample, even if you have a change of heart and inform the officer that you decided you want to provide a sample, your initial refusal would be enough to potentially find you guilty of implied consent.  

Attorney John Barnes, Attorney Brandon D. Fersten, and Attorney Oscar Butler

Can the State use my refusal to provide a blood or breath sample against me in a DUI case?

Most likely yes, the State may introduce your refusal to submit to a chemical test into evidence at trial. Moreover, the State may request the judge to instruct the jury to use your refusal to provide a chemical sample against you. Under such a jury instruction, the judge may tell the jury that it may consider the defendant’s refusal to submit to a chemical test as evidence.


More specifically, the judge will inform the jury that if the jury finds proof that the defendant was offered and refused to submit a chemical test and advised the defendant that their license may be suspended for failure to provide a sample, may be considered in deciding whether the defendant is guilty or not guilty. The jury may also consider the defendant’s decision as a consciousness of guilty.


Can the State force me to give a blood or breath sample after I refuse without my consent?


Yes, but only under limited circumstances. In most circumstances, the police officer can only force you to give a blood or breath sample after a refusal if the officer secures a search warrant signed by a magistrate judge. Otherwise, the State will not be able to get a sample of your blood without your voluntary consent.  


When it comes to fighting the legal charges brought against you, it’s important to know that you have rights. A DUI charge is no different. However, having rights might not do you any good, if you are not familiar with them. We will make you aware of what those rights are, and how they can apply to your case.

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