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State v. Brown

Court of Criminal Appeals of Tennessee, Jackson

April 30, 2015

STATE OF TENNESSEE
v.
MELVIN BROWN

Session October 7, 2014.

Interlocutory Appeal from the Criminal Court for Shelby County No. 13-00735 W. Mark Ward, Judge.

Claiborne H. Ferguson, Memphis, Tennessee (on appeal), and Varonica R. Cooper, Memphis, Tennessee (at trial), for the Defendant-Appellant, Melvin Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Michael McCusker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle, J., joined. Timothy L. Easter, J., concurred in results only.

OPINION

CAMILLE R. McMULLEN, JUDGE.

At the September 12, 2013 suppression hearing, Officer Christopher Draper of the Memphis Police Department ("MPD") testified that he responded to the scene of a three-car accident on December 6, 2011, around 9:00 p.m. The Defendant was suspected of DUI, and Officer Draper sat with the Defendant for approximately 30 minutes until certified DUI Officer Casey Kirby arrived on the scene. Officer Draper assisted Officer Kirby with "a little bit of the paperwork" in his DUI investigation, including filling out the "Standard Field Sobriety Form." Officer Draper noted in his report that the Defendant had "obvious" signs of alcohol impairment, including a strong odor of alcohol, watery eyes, and slurred speech. Officer Draper recalled that the accident occurred in a "[v]ery busy intersection" and required vehicles to be towed.

On cross-examination, Officer Draper testified that there were two other officers at the scene investigating the accident while he and Officer Kirby investigated the Defendant for DUI. Officer Draper agreed that the Defendant was not injured in the accident or transported to the hospital and that this DUI stop was "pretty much standard routine." He estimated that the Defendant remained at the scene for an hour and a half before being transported to the police station.

Officer Casey Kirby, a trained DUI officer with the MPD DUI Unit, testified that he was called to the scene after officers there requested a DUI officer. Upon his arrival, Officer Kirby and Officer Draper took the Defendant to a parking lot adjacent to the accident. He observed that the Defendant had a strong odor of alcohol, bloodshot and watery eyes, slurred speech, and a "slow reaction" time. He recalled that the Defendant was "swaying and staggering, " but because the Defendant complained of leg pain, Officer Kirby did not ask the Defendant to perform a turn and walk test or one leg stand test. Officer Kirby advised the Defendant of the implied consent law and requested that the Defendant submit to a breath test. The Defendant refused to submit to a test. Because a third party was injured in the accident, Officer Kirby determined that the Defendant was subject to a mandatory blood draw pursuant to Tennessee Code Annotated section 55-10-406(f)(1) (Supp. 2011). He explained, "Since [the Defendant] was involved in an accident where there were injuries to a third party . . . the State law at that time advised me that I'm able to go ahead and take . . . a mandatory blood draw if he refuses to a BAC test." Officer Kirby informed the

Defendant that the blood test was mandatory, and the Defendant continued to refuse the test. Officer Kirby transported the Defendant to the police station where a nurse met them and took a blood sample from the Defendant.

Officer Kirby testified that at the time, obtaining warrants for blood draws was not MPD's "standard operation procedure, " and he understood the law to be that warrants were not required for mandatory blood draws. He testified that he had recently started obtaining warrants for all blood draws. It typically takes about two hours to get the warrant and an additional thirty minutes for a nurse to come to the station and take a blood sample. On cross-examination, he agreed that this case was "a pretty routine DUI stop[.]" He also agreed that he could obtain a warrant at any hour of the day.

Following the hearing, the trial court found that exigent circumstances did not exist to justify an exception to the warrant requirement and questioned the constitutionality of the statute. On November 4, 2014, the trial court entered an order granting the Defendant's motion to suppress, which sets out its findings and conclusions, in relevant part, as follows:

[T]he State presented the testimony of Memphis Police Officers Christopher Draper and Casey Kirby. Officer Kirby testified that he responded to the scene of the motor vehicle accident in his capacity as a DUI Detection Officer. At the request of the arresting officer, Officer Kirby investigated the Defendant for suspicion of driving under the influence. Subsequently, Officer Kirby read the Defendant the Tennessee Implied Consent Law at which time the Defendant refused to submit to a breath test.
Thereafter, Officer Kirby testified that he made the decision to draw blood pursuant to Tennessee Code Annotated [section] 55-10-406 upon his reasonable, articulable suspicion that the Defendant was involved in a motor vehicle accident with injuries to a ...

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