After many years of frustrating arguments with judges across Tennessee trying to obtain an expungement order for implied consent cases that were dismissed, the Tennessee Legislature passed a law in 2023 that now specifically allows most (but not all) dismissed implied consent violations to be expunged (erased from public record). Public Chapter 137 became law on April 6, 2023 amending Tennessee Code Annotated, Section 40-32-101 and Section 55-10- 407, relative to expunction.
Drivers who are suspected of the crime of driving under the influence may be requested by law-enforcement officers to submit to a chemical test (usually a blood or breath test) in certain circumstances. Typically this occurs once the officer has established that there is probable cause to believe the driver is under the influence of an intoxicant.
Refusal to consent to the taking of one’s bodily fluid is a violation of the Tennessee implied consent law. The penalty for this violation is the loss of one’s driver’s license for a minimum of 1 year. Of course, certain procedures must be followed to finalize the violation. If finalized, one may expect a large increase in one’s auto insurance premium. In the past, a problem arose when the implied consent charge was dismissed–people could then see that the driver was previously arrested for a DUI offense, even if the DUI itself was dismissed and expunged.
The previous concern of the courts was that since only criminal offenses could be expunged and since implied consent violations were not technically a criminal offense in nature, the expungement laws did not apply to implied consent violations. Implied consent violations were considered more “quasi-criminal.” That concern has now been nullified by this new law. Tennessee law now provides that implied consent violations that were dismissed without [court] costs taxed to the driver, may now be expunged–except in limited circumstances relating to those who held commercial drivers’ licenses at the time of their violation. Let’s hope that more favorable changes in the law will be enacted in the near future.
About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants. Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the National College for DUI Defense, Inc. (NCDD). Among the many honors bestowed upon him, Steve has served as Dean of the NCDD and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.
He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 9th edition (Wolters Kluwer/Aspen). Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions. He is a popular international speaker, having spoken at legal seminars in 30 states, the District of Columbia and seven foreign countries. After being named a Fulbright Scholar, Steve was honored to teach as a Visiting Professor at the University of Latvia Law School in the capital city of Riga, Latvia during the Spring Semester of 2019. During the Spring Semester of 2023, Steve taught as a Visiting Professor at Eötvös Loránd University Faculty of Law in Budapest, Hungary. If you would like to contact the author, please visit his website at www.tndui.com.
