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McKenzie v. McKenzie

Court of Appeals of Tennessee, Nashville

February 27, 2015


Session October 21, 2014

Appeal from the Circuit Court for Davidson County No. 12D354212D Philip E. Smith, Judge.

Richard L. Tennent, Nashville, Tennessee, for the appellant, Cynthia S. McKenzie.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Acting Solicitor General, and Warren Jasper, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.

Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Brandon O. Gibson, JJ., joined.



Cynthia McKenzie ("Plaintiff) is a licensed attorney who represented herself during an unusually contentious and protracted divorce for a couple married only two years with no children. The events giving rise to this appeal occurred on the morning of May 16, 2013, during a hearing on a motion filed by Plaintiff (the "morning hearing"). [1] At the conclusion of the morning hearing, the trial judge dismissed Plaintiffs motion; however, pursuant to a sua sponte order, Plaintiff and her husband were required to undergo a urine drug test ("urinalysis") administered by the State Trial Court's Special Services Unit (the "Special Services Unit ") and to return to the courtroom after the results were provided to the court. The trial court did not inform the parties of the reason for the urinalysis or why they were being required to return to court that afternoon.

The urinalysis results were provided to the court early that afternoon. Plaintiff's results were positive for amphetamines and indicated an alcohol level of .084 g/dL.[2] After allowing the parties "a few minutes" to review the results, they returned to the courtroom at which time the judge informed Plaintiff that the urinalysis results indicated that she "showed up [to the] morning [hearing] legally intoxicated, " and "also under the influence of an amphetamine which, . . . is Adderall for which you have no prescription."[3] The judge then stated that he wanted "to hear from Plaintiff." Plaintiff was represented by attorney Mark J. Downtown during this hearing (the "afternoon hearing") and the sentencing hearing that was held on May 30, 2014.

During the afternoon hearing, Plaintiff testified that she had a valid prescription for Adderall, but that she did not have the prescription with her. The trial court then asked Plaintiff to explain what he described as the high alcohol level in her system.

THE COURT: Okay. Why would this show that you're under the -- under --legally intoxicated in this court? Have you consumed alcohol in the last 12 hours -- or excuse me -- 12 hour -- let me say 14 hours prior to -
[Plaintiff]: Prior to when I came to court?
[Plaintiff]: I -- last night, I did drink some beer, but I don't know what time I went to sleep, but -
[Plaintiff]: -- I would have to -
THE COURT: All right. The Court -
[Plaintiff]: -- 14 -
THE COURT: All right. . . .

The court then called as its own witness John Holley, an employee of the Special Services Unit that administered the test, to verify the accuracy of the results. Mr. Holley testified that Plaintiff was escorted to the Special Services Unit where she provided a urine sample to Altavease McCluskey, a female employee of the Special Services Unit, and that he performed the urinalysis after receiving the sample from Ms. McCluskey. Although Mr. Holley's competence to opine on the reliability of such tests was not established, he testified that he was "very confident " in the accuracy of the urinalysis results.

During its direct examination of Mr. Holley, the court informed him that Plaintiff "indicated to the Court that she did not have her prescription [for Adderall] with her, " and the court asked Mr. Holley if "No Prescription" would be marked in that situation. Mr. Holley testified that it was his understanding that Plaintiff told Ms. McCluskey that she did not have a prescription. Plaintiff objected to Mr. Holley's testimony on the ground of hearsay, and the court responded by stating, "All right. Let's get . . . Ms. McCluskey over here." While waiting on Ms. McCluskey to arrive, Plaintiff offered to late-file a copy of her prescription with the court; nevertheless, the court was adamant that it wanted to hear from Ms. McCluskey.

Ms. McCluskey testified that she completed Plaintiffs information sheet and obtained the urine sample from Plaintiff Subsequently, the trial court asked Ms. McCluskey whether Plaintiff told her that she did not have her Adderall prescription with her, or whether Plaintiff told her that she did not have a prescription for Adderall. Ms. McCluskey testified that Plaintiff did not have the prescription with her at the time of testing. The court then stated, "based on that, then, we don't have any further questions."

At the conclusion of the afternoon hearing, the trial court found that Plaintiff was "intoxicated" during the morning hearing, that Plaintiff engaged in willful misbehavior in her official transactions by appearing in court intoxicated, and the court found her in direct contempt of court. The bench ruling reads in pertinent part:

Ma'am, I do find that -- that this -- this screen is -- establishes that you showed up earlier under the influence, .084. I do find, by a preponderance of the evidence, that this -- the testimony reflects the accuracy of this screen. You have no explanation for it, even given the opportunity to explain it. And pursuant, ma'am, to [Tenn. Code Ann.] § 29-9-102, I find that you are an officer of the court, and that you have engaged in willful misbehavior by showing up under the influence of alcohol. And, ma'am, I am going to find you in direct Contempt of Court pursuant to [Tenn. Code Ann. §] 29-9-100 and -- 102. I am going to reserve sentencing until May 30th, 2013.

The order of contempt entered on May 21, 2013, reads as follows:

[T]he Court noticed the demeanor of [Plaintiff] was markedly different than what the Court had seen of [Plaintiff] in past hearings. [Plaintiff] was at one point argumentative with the Court. [Plaintiff] asked condescending and somewhat rhetorical questions of the Court. [Plaintiff] cast inappropriate allegations towards opposing counsel. [Plaintiff's] behavior forced the court to lecture her about proper behavior in Fourth Circuit Court.
At the conclusion of the hearing of the preliminary matter, the Court, mainly out of concern for [Plaintiff's] behavior, ordered the parties to submit to a drug and alcohol screen . . . [Plaintiff] did state that she had a prescription for Adderall. The proof established that she told the person taking the sample that she had a prescription for Adderall. The Court believes [Plaintiff] regarding her Adderall prescription, which could explain the high level of amphetamines in her system.
The Court recognizes that different people have different tolerances to alcohol. The Court also recognizes that there are no hard and fast rules to determining when a person is intoxicated. The Tennessee General Assembly has determined that a blood or breath alcohol level of .08 percent or more impairs a person to the extent that it is unlawful to operate a motor vehicle. See [Tenn. Code Ann.] § 55-10-401. The Court further recognizes that [Tenn. Code Ann.] § 55-10-401(2) limits the alcohol level to blood or breath levels. The test performed on [Plaintiff] was a urine test. Nonetheless, the Court has confidence in the screen results and has already found them accurate based on the testimony of Mr. Holley.
Therefore, the Court finds, pursuant to [Tenn. Code Ann.] § 29-9-102(2), that [Plaintiff] was intoxicated in Court on May 16, 2013. Further, the Court finds that [Plaintiff], as an officer of the Court, engaged in willful misbehavior in her official transactions by appearing in Court intoxicated and as such is in direct contempt of court.

The trial court set the sentencing hearing on May 30, 2013. At the sentencing hearing, Mr. Downton, Plaintiff's counsel, submitted a letter from Dr. Stephen A. Montgomery, Director of Forensic Psychiatry at Vanderbilt University, to establish that the urinalysis results for alcohol, that of .084 g/dL of alcohol, which the trial court relied upon to find that Plaintiff was intoxicated in court, was not equivalent to blood or breath tests utilized to determine whether one is "under the influence of alcohol." As Dr. Montgomery's letter explained, the urinalysis results provided to the court did not establish intoxication; it merely established that Plaintiff had ingested alcohol "within the preceding 24 hours." (Emphasis added). The pertinent portion of the transcript from this hearing reads:

[Mr. Downtown]: [The] finding of intoxication was based on a urinalysis, which everybody in the scientific community and the courts in this state have found is insufficient basis to find somebody impaired. The test is designed only for abstinence programs.
COURT: So it's not good enough for probation violations?
[Mr. Downtown]: That's right, Your Honor. It's not good enough to prove impairment.
[Mr. Downtown]: For a probation violation, individuals are ordered to consume no alcohol. That's an abstinence program.
COURT: Let me tell you. This is not an opportunity for you to argue. There's a reviewing court that can address this issue. I'm going to stand by my order. I had an adequate explanation by Mr. Holly. That's why I called him up here, just to ensure that was an appropriate test. I'm allowing you to argue in regard to the punishment phase at this point. Otherwise, you know, you need to take it to my safety net, the three judges up in the Court of Appeals.

The trial court's order following the sentencing hearing stated that "the Court stands by its decision of May 16, 2013 that [Plaintiff] was in direct contempt of court because she was intoxicated in court on that date based on her behavior in court, the urine screen and the ...

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