Police officers in Tennessee are allowed to order blood samples during traffic stops, but for the first time someone is questioning whether that is legal.
If you've been convicted of driving under the influence and you are suspected of doing it again, police are required to take your blood. They don't need your consent or a warrant.
In a recent case in Murfreesboro, a Tennessee Highway Patrol trooper stopped a driver, executed a field sobriety test and eventually took the driver to jail to get a blood sample.
"The officer said, 'You're not consenting. The statute says I can take your blood without your consent, and we're taking it,'" said attorney Raymond Fraley.
That's legal in Tennessee but unconstitutional, according to Fraley.
"Fourth Amendment: every one citizen has the right to be secure in his person, home," Fraley said.
The attorney is fighting the state law and says he's determined to change it.
"No different than I'm in my home. I don't want a police officer coming into my home. And that's where a magistrate stands in between a citizen accused and the police officer who may have an agenda," Fraley said.
The Tennessee Association of District Attorneys says it "worked hard to have this legislation enacted. We are totally confident that the forced blood withdrawal violates no constitutional safeguards."
As for Fraley, he plans to fight it and he says he won't stop until the law changes.
"I think we've got to be mindful of it and don't let such a conservative view take away the rights of the citizen," he said.
Last April, the U.S. Supreme Court heard a similar case, Missouri v. McNeely. The court ruled that in order to take a blood sample, you either have to have consent, exigent circumstances or a search warrant.
This case in Tennessee goes to court in May.
A spokesperson for the group Mothers Against Drunk Driving said driving is a privilege, not a right, and drivers who refuse to submit a blood sample present a big challenge to law enforcement and the courts.
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