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State v. Kennedy

Court of Criminal Appeals of Tennessee, Nashville

October 3, 2014

STATE OF TENNESSEE
v.
CHARLES A. KENNEDY

Session May 13, 2014

Appeal from the Circuit Court for Williamson County No. II-CR096724 James G. Martin, III, Judge

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Kim R. Helper; District Attorney General; and Carlin Hess, Assistant District Attorney General, for the appellant, State of Tennessee.

Benjamin C. Signer, Franklin, Tennessee, for the appellee, Charles A. Kennedy.

James Curwood Witt, Jr., J., delivered the opinion of the Court, in which John Everett Williams and Roger A. Page, JJ., joined.

OPINION

JAMES CURWOOD WITT, JR., JUDGE

The Williamson County grand jury charged the defendant with one count of driving under the influence ("DUI"), one count of driving while the blood alcohol concentration ("BAC") in the defendant's blood was .08 percent or more ("DUI per se"), one count of driving while his driver's license was revoked, and third offense DUI. Prior to trial, the defendant moved the trial court to suppress the results of blood alcohol testing conducted on blood drawn against his will. The defendant asserted that Code section 55-10-406(f)(2), the statute the State had used to justify the blood draw, was unconstitutional and that no exception to the warrant requirement justified the warrantless blood draw. The State claimed that exigent circumstances justified the warrantless taking of the defendant's blood.

At the August 19, 2013 hearing on the defendant's motion, Fairview City Police Department Officer Shawn Malhoit testified that at approximately 12:30 a.m. on May 8, 2012, she was "riding with Sergeant [Pat] Stockdale on patrol" when she and Sergeant Stockdale observed a red pickup truck being driven by the defendant, whose driver's license Sergeant Stockdale knew to be revoked. Sergeant Stockdale activated his emergency equipment, and the officers "ended up following [the defendant] on to his residence where he stopped in his driveway." Officer Malhoit recalled that the defendant's residence "was less than a mile, more than half a mile" from the location where Sergeant Stockdale activated his emergency equipment. After Sergeant Stockdale confirmed that the defendant's driver's license had been revoked, the defendant was placed under arrest. She said that the defendant was arrested at approximately 12:50 a.m.

Officer Malhoit observed the defendant's "eyes to be watery, " and she "could smell alcohol coming from his person, " so she asked Officer William Burgess, who had arrived at the scene in the interim, to transport the defendant to the police department "where [they] would have a level ground to conduct field sobriety testing." She explained that she asked Officer Burgess to transport the defendant because Sergeant Stockdale's "vehicle doesn't have a cage for a transport." Officer Malhoit and Sergeant Stockdale followed in Sergeant Stockdale's vehicle. She said that they arrived at the police station at approximately 1:00 a.m. and that they immediately "gave [the defendant] the opportunity to do the standardized field sobriety test." She said that in response to the request, the defendant "started on another subject and ultimately ended up with a refusal." She recalled that his refusal came "[n]ot more than five minutes" after their request. At that point, the defendant "was taken into the holding cells" so that the officers "could get [the] implied consent paperwork together and go back and do it with a witness."

Officer Malhoit testified that Officer Burgess read the implied consent form to the defendant while Officer Malhoit acted as a witness. After the form was read to him, the defendant refused to submit to the testing of his BAC at 1:17 a.m., and "[t]he next course of business was to, of course, let him know that this was going to be a mandatory blood draw." She explained, "Due to the fact that [the defendant] has had prior D.U.I.'s and a revoked license, it was required that he have blood drawn even though he did refuse." She said that the officers told the defendant that he would be transported to Williamson County Medical Center in Franklin for the purpose of having his blood drawn. In response, the defendant said "[t]hat police would have to take this blood from him by force." She described the defendant as "just agitated, upset, " and "[b]elligerent."

Officer Malhoit recalled that Officer Phil Jarosz drove her and the defendant to the Williamson County Medical Center. They left the Fairview Police Department at approximately 1:30 a.m. and arrived at the Williamson County Medical Center at "right about two o'clock." When they arrived, they placed the defendant "into a seclusion room to wait for a phlebotomist to come in to draw the blood from him." She described the defendant's demeanor as "agitated, belligerent, rude." The defendant, she said, made it clear that he did not consent to the taking of his blood. She testified that it took "[p]robably close to thirty minutes" for the phlebotomist to arrive, and the defendant's blood was drawn at 2:30 a.m.

Officer Malhoit testified that in May 2012 it was not the policy of the Fairview Police Department to obtain search warrants for the drawing of blood for blood alcohol testing. She said that at that time she never considered obtaining a search warrant before taking the defendant for the blood draw because it was her "understanding of the implied consent law, that it would be mandatory." She explained that, had she sought to obtain a search warrant, she would have had to appear in person before the magistrate at the Williamson County Jail to swear out the warrant. She said that her absence would have deprived the Fairview Police Department of the service of one of the four officers on duty that night. In addition, Officer Malhoit, who was new to the department in May 2012, was not permitted to drive a patrol car, which meant that another officer would have had to drive her to the Williamson County Jail to obtain the warrant, meaning that two of the four officers on duty and one of the three patrol cars would have been occupied by the process of obtaining the warrant. She said that it would have taken more time to secure a warrant to obtain the defendant's blood.

During cross-examination, Officer Malhoit testified that there was "not very much" procedural difference between obtaining a search warrant for a blood draw and obtaining an arrest warrant or any other type of search warrant. Officer Malhoit conceded that the Fairview Police Department had recently changed its department policy to require officers to obtain search warrants for blood draws in DUI cases. She acknowledged that although she had not had occasion to obtain such a warrant, other officers in the department had, and they had had no trouble doing so. She said that the process required two patrol cars, explaining, "We have to get one in route to get ready at the hospital and one in route to the magistrate's office at the same time." She said that, as a result, the streets of Fairview were less safe.

During redirect-examination, Officer Malhoit clarified that at the time of the defendant's arrest, she was not permitted to drive a patrol car because she was new to the department.

Fairview Police Department Sergeant Pat Stockdale testified that on May 8, 2012, he and Officer Malhoit rode together in his vehicle so that he "could observe her" in conjunction with his duties as her supervising officer. He explained that at that time, Officer Malhoit "was a functioning officer" who was participating "in the field training officer program." Sergeant Stockdale testified that after Officer Malhoit arrested the defendant, he "remained in Fairview on patrol" while "Officer Malhoit proceeded on with whatever she did."

During cross-examination, Sergeant Stockdale said that the Fairview Police Department had changed its policy to require officers to obtain search warrants before obtaining blood samples from DUI suspects.

The defendant presented the testimony of Williamson County General Sessions Court Magistrate Marcia Hynes. Ms. Hynes testified that she had issued "probably a dozen" search warrants during her career. She said that officers could either come to the magistrate's office and complete the warrant paperwork or generate the paperwork on their cruiser's computer, if the cruiser is so equipped. Ms. Hynes said that when an officer comes in for a search warrant, she or any other magistrate "would automatically drop what we were doing so that we could give attention to" the warrant. She said that the entire process would take "[p]robably, twenty minutes to an hour." She said that the magistrates "try to get them in and out by giving direct attention to whatever information's been provided to us on that search warrant" but that they did "have to make copies." She said that the overnight shift could be very busy. Ms. Hynes testified that "blood draw search warrants" take precedence over other warrants.

During cross-examination by the State, Ms. Hynes testified that before April 26, 2013, no one in her office had issued a search warrant for a blood draw in a DUI case. On that date, she and others in her office underwent training "[t]o properly know what we were doing filling out a search warrant." She said that the officer is responsible for preparing the warrant and that the magistrates provide only the signature and the time. Ms. Hynes testified that her office does not accept electronic or telephonic search warrants. When asked how she might have proceeded had she been asked to issue a search warrant for a blood draw in May 2012, she said, "I don't know because we wouldn't have - we had no idea that was a procedure. . . . But I mean blood draws were all new to us." She said that it was "pretty much" the case that only one magistrate works the overnight shift.

During redirect-examination, Ms. Hynes said that no procedural difference existed between issuing a warrant to search real property and a warrant to obtain a blood sample. She said that the form was "a little bit different."

At the conclusion of this testimony, the State argued that time was "a consideration combined with the natural dissipation of alcohol in the blood stream." The prosecutor added that Officer Malhoit had no "knowledge about obtaining a search warrant." The State averred that these factors combined to create exigent circumstances that justified the warrantless search in this case. The prosecutor also argued that obtaining a search warrant was not only impractical "but nearly impossible . . . without effectively undermining the quality of the [S]tate's evidence." The defendant argued that no exigency existed.

The trial court took the motion under advisement, and, via a written order, granted the defendant's motion to suppress the evidence on grounds that the warrantless search was not justified by any exception to the warrant requirement. Specifically, the trial court concluded that the defendant did not consent to the search in this case. Addressing that version of the implied consent law in effect at the time of the defendant's arrest, the trial court noted that the statute made the taking of the defendant's blood mandatory as a consequence of his having been previously convicted of DUI. The court ruled that because the statute created a per se exception to the warrant requirement, it violated the state and federal constitutions.

In this interlocutory appeal, the State asks us to reverse the ruling of the trial court declaring Code section 55-10-406(f)(2) unconstitutional and suppressing the results of testing on the defendant's blood. At the time of the defendant's arrest, Tennessee Code Annotated section 55-10-406 provided, in pertinent part, as follows:

(a)(1) Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person's blood, a test or tests for the purpose of determining the drug content of the person's blood, or both tests. However, no such test or tests may be administered pursuant to this section, unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of ...

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