Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 11, 2015.
Appeal from the Circuit Court for Williamson County No. I-CR077407 Michael W. Binkley, Judge.
Eric L. Tate Davis, Franklin, Tennessee, for the appellant, Patrick Lee Mitchell.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General (Senior Counsel); Kim R. Helper, District Attorney General; and Carlin C. Hess, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Camille R. McMullen and Roger A. Page, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE.
Originally charged with alternative counts of DUI following a traffic stop of his vehicle in Franklin after he struck a curb while executing a right turn, the defendant pleaded guilty to a single count of DUI for having a blood alcohol level of .16 percent in exchange for the dismissal of the remaining charge and a sentence of 11 months and 29 days probation. With the consent of the State and the trial court, the defendant reserved the following certified question of law pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure:
Did the trial court err in denying the defendant's Motion to Suppress thereby allowing the defendant's .16 grams % blood alcohol test result as evidence at any trial herein where after the defendant's arrest for Driving Under the Influence-1st Offense pursuant to T.C.A. § 55-10-401 and where thereafter the defendant repeatedly refused his consent for a blood draw in violation of T.C.A. § 55-10-406, but where the defendant was transported to the Williamson Medical Center for a mandatory blood draw pursuant to T.C.A. § 55-10-406(f)(2) [now (d)(5)(B)], and while awaiting the mandatory blood draw, the defendant consented to the same?
The trial court incorporated by reference in the judgment form an order specifying the question and memorializing the agreement of the court and the parties that the question was dispositive of the case against the defendant. See Tenn. R. Crim. P. 37(b)(2)(A).
Essentially, the defendant concedes that he consented to having his blood drawn but argues that his consent was not valid because it was coerced by the threat of the mandatory blood draw provision of Code section 55-10-406, which provision he claims is "inherently coercive." The State argues that the defendant gave actual and voluntary consent to the blood draw in this case.
At the hearing on the defendant's motion, Trooper Charles Achinger testified that after a fellow trooper placed the defendant under arrest for DUI shortly after 10:00 p.m. on March 17, 2013, he asked the defendant if he would consent to a blood or breath test to determine the drug or alcohol content of his blood. The defendant refused. After making arrangements for the defendant's vehicle to remain in the parking lot where the arrest took place, Trooper Achinger read the Implied Consent Form to the defendant and again asked whether he would submit to a blood or breath test. The defendant again refused. At that point, Trooper Achinger explained to the defendant that because he had a prior conviction of DUI, the defendant would be subjected to a mandatory blood draw and that his refusal to submit to testing would result in his being charged with violating the implied consent law. The defendant again refused, and the trooper transported him to the hospital for a mandatory blood draw.
At the hospital, the defendant and Trooper Achinger went into "the isolation room . . . . where the police take people . . . to get their blood drawn, " and he again "went over the consequences" of the defendant's refusal to submit to blood alcohol testing. He told the defendant that his refusal could result in the loss of his driver's license and that his blood would be drawn despite his refusal under the terms of the implied consent law. At that point, the defendant "changed his mind and said he would consent." Trooper Achinger said that he did not charge the defendant with violating the implied consent law. The defendant then signed the form consenting to have his blood drawn at the hospital at 11:18 p.m.
During cross-examination, Trooper Achinger said that he did not have the defendant sign the implied consent form memorializing his initial refusal because the defendant was handcuffed. He said it was not his practice to remove handcuffs at the scene of an arrest. He did not remove the defendant's handcuffs until he was at the hospital for the blood draw. Trooper Achinger said that he did not act out of a motivation to coerce the defendant into consenting to the test, explaining, "I had no motivation – it was a mandatory blood draw on him, so I was going to get it and that's what I told him. . . . Doesn't matter to me." He said that he did "want [the defendant] to make a good decision. He could get a whole another charge added on. . . . I think that it's just silly for somebody to do that when they know that there's a mandatory blood draw." He said that, while at the hospital, he informed the defendant that "even if he is not convicted of DUI, if he gets charged with implied consent, he will still lose his license for a year." It was following this admonition that the defendant changed his mind and consented to the blood draw. He said it was his understanding that the defendant could change his mind and consent to the test up until the mandatory blood draw occurred.
The defendant testified that he initially refused to submit to blood alcohol testing because he "was scared" and had "made up [his] mind" that he "wasn't going to do that." The defendant confirmed Trooper Achinger's testimony that the two did not talk on the way to the hospital. The defendant said that Trooper Achinger "was very courteous, very nice" but that "he just kept pushing" the defendant to consent to the blood test. He said that he did not want to have his blood drawn but that he "wasn't going to fight" or "resist that." He said that he could not remember signing the consent form but acknowledged his signature on the form. He said that he did not recall whether he had signed the form at the hospital or at the jail. He said that all of the events of the evening were "kind of a blur." The defendant ...