Refused the Breath Test in Memphis? What Happens to Your License

There are two cases against you after a DUI arrest with a refusal, not one. The criminal charge is the one everybody focuses on. The other is the implied-consent charge, a separate warrant that decides whether you keep your license. It is decided by the court, usually at your first appearance or preliminary hearing, and it is the one people lose by default. Since January 1, 2026 a refused blood test also costs more than it used to. Brooks Law Firm handles both. Call or text the criminal line at 901-412-2973.

What implied consent means

Under Tennessee’s implied-consent law, Tenn. Code Ann. § 55-10-406, driving on a Tennessee road is treated as agreement to submit to a lawful chemical test of breath or blood when an officer has reasonable grounds to believe you were driving under the influence. Declining is not a neutral choice. It carries its own revocation, imposed whether or not you are ever convicted of the DUI.

The officer is required to advise you of the consequences before the request. Whether that advice was actually given, and given properly, is one of the first things worth examining.

What changed in 2025 and 2026

SB 1400 (2025 Public Chapter 403) rewrote the parts of the implied-consent statute that matter most to someone deciding what to do at the roadside. Two of its changes took effect on May 5, 2025; the longer revocation took effect on January 1, 2026, and a further step is set for January 1, 2027.

• A refused blood test now costs 18 months, not 12. For refusals on or after January 1, 2026, a driver with no prior conviction who is suspected of misdemeanor DUI and refuses a blood test faces an 18-month revocation. A first refusal of a breath test is still one year. From January 1, 2027, every first refusal, breath or blood, carries 18 months (2026 Public Chapter 1046).
• Refusal counts even if the State gets the sample anyway. This is the larger change, in force since May 5, 2025. A refusal is chargeable even where blood is obtained by search warrant, court order, exigent circumstances, or other lawful means. Refusing used to at least deny the State a number; now it can cost the license without buying anything.
• Saliva testing is in. Since May 5, 2025, officers may take an oral fluid test with your consent, a search warrant, incident to a lawful arrest, or in exigent circumstances, and the result is admissible; refusing a saliva test is not an implied-consent violation. The rule is aimed at drugged-driving cases. Collection procedure, officer training, and the reliability of the test itself are all new ground, and all of it is contestable.

Because arrests and court dates often straddle these effective dates, which version of the statute governs your case is worth confirming rather than assuming.

Two tracks, two decisions

This is the part that surprises people:

• The criminal case — the DUI charge itself, in General Sessions or a suburban municipal court, decided by a judge on proof beyond a reasonable doubt.
• The implied-consent case — a separate charge on its own warrant, decided by the court at your first appearance or preliminary hearing or when the DUI is resolved, with its own consequences for your driving privileges.

They do not rise and fall together. You can win the DUI and still lose your license to an uncontested refusal. That happens routinely to people who hired a lawyer for the criminal charge and never mentioned the refusal, or who assumed one lawyer handling one case covered everything. With a refused blood test now carrying eighteen months, and every first refusal set to carry eighteen months from 2027, losing that track by default costs more than it used to.

The refusal can be decided as early as your first court setting. If you refused, it needs raising in the first days, not after the DUI is resolved.

Refusing is not automatically the smart move

The folk wisdom is that refusing denies the State its evidence. That was always only sometimes true. After SB 1400 it is weaker still.

Refusal carries its own revocation, now longer. It does not prevent the State from proving impairment through the officer’s observations, driving behavior, field sobriety performance, and video. And where a warrant is obtained, blood can be drawn regardless of refusal — and under the new law the refusal charge survives that draw. In a meaningful number of cases, people now take the longer revocation and the State gets the sample anyway.

What we look at in a refusal case

• Reasonable grounds for the stop. Everything downstream depends on it.
• Whether the implied-consent advice was actually given — and what the video shows about how.
• Whether what happened was a refusal at all. Confusion, a medical condition, a language barrier, or an inability to produce an adequate breath sample are not the same as refusal, though reports often record them identically.
• Which version of the statute applies, which turns on the date of the refusal.
• Whether a warrant was obtained, and if blood was drawn, the draw and chain of custody.
• How any oral fluid test was collected, if one was used, and whether the officer was trained and the protocol followed.
• The restricted-license question, which for many clients is the practical issue — see license reinstatement and court costs and reinstatement.

What to do this week

1. Find your paperwork and check whether a refusal is noted.
2. Write down what you were told before the test was requested, and what you said.
3. Note whether you were asked for breath, blood, saliva, or more than one, and whether a warrant was mentioned.
4. Do not contact the arresting officer or the prosecutor directly.
5. Raise the refusal with a lawyer immediately — before your first court date.

More: the Memphis DUI defense guide covers the implied-consent track in full, breath and blood testing covers the science, and our Tennessee legislative updates page tracks changes like this one. Also first DUI in Memphis.

Frequently Asked Questions

What happens if I refuse a breath test in Tennessee?

Refusal triggers an implied-consent revocation of your driving privileges that is separate from the DUI charge and applies even if you are never convicted. A first refusal carries a one-year revocation; since January 1, 2026 a refused blood test carries 18 months, and from January 1, 2027 every first refusal will. It is charged on its own warrant and decided by the court.

Does refusing still keep the State from testing my blood?

Not reliably, and since May 5, 2025 refusing no longer avoids the refusal charge either. Officers frequently respond to a refusal by seeking a warrant, and under SB 1400 the implied-consent violation can be charged even when blood is obtained by warrant, court order, exigent circumstances, or other lawful means.

Can I still be convicted of DUI if I refused testing?

Yes. The State can prove impairment through the officer’s observations, your driving, field sobriety performance, and video. Where a warrant is obtained, blood may be drawn despite the refusal.

Does winning my DUI case fix the license revocation?

Not automatically. The implied-consent matter is decided separately, and it is commonly lost by default while attention is on the criminal charge. Both need to be addressed.

Is every failure to complete a test treated as a refusal?

It should not be. Confusion, a medical condition, a language barrier, or an inability to produce an adequate sample are not refusals, though police reports frequently record them the same way. What the video shows matters.

Arrested for DUI with a refusal in Memphis or Shelby County? Brooks Law Firm is a member of the National College for DUI Defense. Office (901) 324-5000 · criminal line 901-412-2973.