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State v. Henry

Court of Criminal Appeals of Tennessee, Jackson

September 14, 2017

STATE OF TENNESSEE
v.
CHAD E. HENRY

          Session: January 4, 2017

         Appeal from the Circuit Court for Chester County No. 16-CR-14 Kyle Atkins, Judge.

         We granted this interlocutory appeal to review the trial court's suppression of the results of a mandatory blood draw from the Defendant, Chad E. Henry, conducted pursuant to Tennessee Code Annotated section 55-10-406(d)(5) (Supp. 2014) (also referred to herein as the mandatory blood draw provision for individuals with a prior conviction for driving under the influence) of the implied consent statute. Henry was arrested and a mandatory blood draw was conducted without a warrant after his car struck the rear of another car. Henry was subsequently indicted by the Chester County Circuit Court for one count of driving under the influence (DUI), one count of third offense DUI, one count of violating the financial responsibility law, and one count of aggravated assault. Following his indictment, Henry moved to suppress the results from the mandatory blood draw, asserting that the warrantless blood test violated his constitutional rights to be free from unreasonable searches and seizures. After a hearing, the trial court granted the motion to suppress, holding that the blood draw was illegal because the officers failed to advise Henry, pursuant to Code section 55-10-406(c) (Supp. 2014), that his refusal to submit to the test would result in the suspension of his driver's license. The State filed a motion for an interlocutory appeal challenging the suppression of the evidence, which the trial court granted, and this court granted the State's application for a Rule 9 appeal. In this appeal, the State argues (1) Henry's implied consent to blood testing, by virtue of Tennessee's implied consent statute, operates as an exception to the warrant requirement, (2) the good-faith exception to the exclusionary rule, as outlined in State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016), applies in this case because the officers acted pursuant to the binding authority of State v. Humphreys, 70 S.W.3d 752 (Tenn. 2001), and the implied consent statute when they required Henry to submit to a warrantless blood test, and (3) motorists with prior DUI convictions, like Henry, have a reduced expectation of privacy under the Fourth Amendment when arrested for a subsequent DUI.[1] Because no exception to the warrant requirement justifies the warrantless blood draw in this case and because the good-faith exception does not apply, we affirm the trial court's suppression of the evidence.

         Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Jerry Woodall, District Attorney General; and Christopher Post, Assistant District Attorney General, for the Appellant, State of Tennessee.

          Michael L. Weinman, Jackson, Tennessee, for the Defendant-Appellee, Chad E. Henry.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         On March 18, 2015, Henry was traveling west on Main Street in Henderson, Tennessee, when his car struck the rear of another car. The responding officers, after noting that Henry had signs of impairment, required him to perform several field sobriety tests. The officers also determined that Henry had prior convictions for DUI after dispatch checked his driver's license. Following Henry's unsatisfactory performance on the field sobriety tests, the officers determined that there was probable cause to believe that Henry had been driving under the influence of an intoxicant, and they arrested him. At that point, one of the officers informed Henry that his prior DUI convictions made a blood test mandatory and transported him to a nearby medical clinic for a mandatory blood draw. Later, Henry moved to suppress the results of the blood test, arguing that it violated his rights against unreasonable searches and seizures. The State responded, asserting that the officers informed Henry he was subject to a mandatory blood draw because of his prior DUI convictions, that Henry had consented, by virtue of the implied consent statute, to the mandatory blood draw by exercising the privilege of operating a motor vehicle on the roadways in Tennessee, and that Henry had never withdrawn or revoked his implied consent after being informed of the mandatory blood draw.

         At the suppression hearing, Sergeant Jason Rhodes of the Henderson Police Department testified that on March 18, 2015, he was sent to the scene of a car accident involving injuries on East Main Street. He said that he traveled in a marked patrol car to the accident and that the other two officers at the scene, Officer Kyle Carter and Officer Michael Rhodes, arrived in separate patrol car. Upon arriving at the scene, Sergeant Rhodes determined that Henry was at fault for the car accident that resulted in injuries to Audrey Kerr, the driver of the other car. Although he acknowledged stating in his police report that Kerr had not been injured in the accident, Sergeant Rhodes said Kerr told him at the scene that she had been hurt in the accident but did not wish to be transported in an ambulance to the hospital.

         When Sergeant Rhodes asked Henry what happened to cause the accident, Henry said that "he had blacked out and couldn't recall." Sergeant Rhodes then asked Henry if he had consumed any alcohol or drugs, and Henry replied that the only thing he had consumed was a prescription painkiller. After noticing that Henry was unsteady on his feet, was restless, and had slurred speech, Sergeant Rhodes had Henry perform several field sobriety tests. These tests included asking Henry to "say his alphabet, " requiring him to complete "the fingertip to the tip of the nose" test, and asking Henry "to count backwards from 68 to 52." Sergeant Rhodes said Officer Kyle Carter gave the horizontal gaze nystagmus test to Henry. When Henry performed unsatisfactorily on each of these tests, Sergeant Rhodes arrested him. A short time later, Sergeant Rhodes heard Officer Michael Rhodes[2] inform Henry that he was going to take him to get his blood drawn because it was mandatory. Although Sergeant Rhodes could not remember whether Henry made a statement in response, he stated that Henry was "calm" and "matter of fact" about the blood draw and was "okay with it." He added, "[Henry] never said no, yes [to the blood draw], that I can recall." Sergeant Rhodes said Henry never told him or Officer Rhodes that he would not give his blood or that they were not going to take his blood. He also said Henry never expressly withdrew or revoked any implied consent to take his blood.

         Sergeant Rhodes said it was his opinion that this was a mandatory blood draw situation because: (1) Henry appeared to be under the influence of an intoxicant and had previously been convicted of a DUI, and (2) Henry appeared to be under the influence of an intoxicant and had just been involved in an accident resulting in injuries to another party. Sergeant Rhodes said he determined that the instant offense was a multiple offense DUI after he had dispatch check Henry's driver's license. He recalled that at the time of the accident, Henry had been convicted of at least one DUI in Pennsylvania in 2012.

         Sergeant Rhodes did not tell Henry that he had the right to refuse the blood draw, and he did not hear any other officer tell Henry that he had a right to refuse the blood draw. He also said that neither he nor any other officer advised Henry that his refusal to submit to the test would result in the suspension of his driver's license. Sergeant Rhodes said that his police department regularly used an Implied Consent Form, which is read to the suspect and gives the suspect the opportunity "to decline or affirm with a blood draw or a breathalyzer test." He stated that the Implied Consent Form was not used in Henry's case because of a "miscommunication." Sergeant Rhodes said he believed Officer Rhodes had read and completed the form with Henry while Officer Rhodes believed that Sergeant Rhodes had read and completed the form with Henry, but neither officer actually did so. Sergeant Rhodes also stated that neither he nor the other officers obtained a search warrant to take Henry's blood. When asked when a search warrant is required in this situation, Sergeant Rhodes replied,

Mr. Henry would be read the implied consent [form]. If Mr. Henry had consented to the-consented to the blood draw, his blood would have been drawn.
If he had declined [the blood draw, ] I would have drawn an affidavit . . . and a warrant for his blood and . . . continued to a judge . . . to ask for that to be signed.

         Sergeant Rhodes admitted that this procedure was not followed in Henry's case. Nevertheless, he said that if Henry had refused the blood draw, he would have sought a warrant to obtain Henry's blood. Sergeant Rhodes said he understood the law to be that even in the case of a mandatory blood draw pursuant to the statute, Henry had the right to be asked if he was consenting to the blood test. He also said Henry had the right to refuse the blood test, and if he refused it, then the officer was supposed to get a warrant for the blood draw.

         Officer Michael Rhodes of the Henderson Police Department testified that on March 18, 2015, at around 4:00 p.m., he responded to a call involving a two-car accident with possible injuries in the area of East Main Street. Officer Rhodes arrived at the scene in a marked patrol car, and the other two officers at the scene, Officer Kyle Carter and Sergeant Jason Rhodes, arrived in their own cars. Officer Rhodes stated that he assisted Sergeant Rhodes with the accident, and when he made contact with Henry, he noticed that Henry "seemed unsteady on his feet" and "jittery." Officer Rhodes stated that although he was in the vicinity when Sergeant Rhodes was giving Henry the field sobriety tests, he did not closely observe these tests because he was obtaining the information from Henry's car. He acknowledged that Henry was arrested after Sergeant Rhodes gave him the field sobriety tests. Officer Rhodes said that Sergeant Rhodes asked dispatch to check Henry's driver's license, and once they realized that Henry had prior DUI convictions, they discussed the fact that this qualified as a mandatory blood draw under the statute. Officer Rhodes said he and Sergeant Rhodes also believed that Kerr, the driver of the other car, was injured, even though she was not transported to the hospital by ambulance, because Kerr told them at the scene that she had injured her neck or back in the accident. He maintained that he and Sergeant Rhodes never based the mandatory blood draw solely on Henry's prior DUI convictions.

         After Henry was arrested, Officer Rhodes informed him that he was going to transport him to a nearby clinic, just a quarter of the mile up the street from the accident, "for a mandatory blood draw" because Henry had been convicted of "prior DUI[']s." He said Henry responded, "Okay, " and had a calm demeanor. When asked if he believed Henry's "okay" response was consent to the blood draw, Officer Rhodes replied, "I don't know if he was consenting or if he was just letting me know, "Okay. I understand what you're saying." Officer Rhodes admitted that Henry never specifically consented to having his blood tested.

         Officer Rhodes acknowledged that he never read the Tennessee Implied Consent Form to Henry because he and the other officers did not have one with them at the time. When asked if he normally reads the Implied Consent Form when he arrests an individual for DUI and is going to give a test to determine if the person is under the influence of drugs or alcohol, Officer Rhodes responded:

We normally try to read the Implied Consent Form. We [were] very busy that day and I guess we assumed one of-There [were] three of us working the case and I guess we all assumed that the other one was going to do it. I-I can't answer that. I don't know. It was just overlooked.

         Officer Rhodes stated that Henry never told him that he did not want to give his blood or that the officers were not going to take his blood. He added that Henry "never tried to refuse" the blood draw and never expressly withdrew any implied consent to take his blood.

         Officer Rhodes also stated that as he was transporting Henry to the clinic and while they were at the clinic, Henry never expressly told him that he did not want to consent to give his blood. He said that as the nurse was drawing his blood, Henry remained calm and never said he did not want his blood taken.

         Officer Rhodes said he did not tell Henry he had the right to refuse the test and did not hear any other officer advise him of this right of refusal. In addition, Officer Rhodes said he did not inform Henry that his refusal to submit to the blood draw would result in the suspension of his driver's license, and he did not hear any other officer advise Henry of this consequence of refusal. Officer Rhodes agreed that no warrant was ever obtained to draw Henry's blood. He claimed that if Henry had refused the blood draw, he would have sought a warrant to draw his blood.

         At the conclusion of the proof, the State argued that the court should deny the motion to suppress on the basis that (1) Henry impliedly consented to the blood draw the moment he operated a vehicle on a Tennessee roadway, see Humphreys, 70 S.W.3d at 761; (2) Henry never expressly revoked or withdrew this implied consent to give blood, see id.; (3) the officer did not make a baseless threat when he informed Henry that the blood draw was mandatory, even if the officer had to obtain a warrant if Henry had refused, see State v. Patrick Lee Mitchell, No. M2014-01129-CCA-R3-CD, 2015 WL 2453095, at *4 (Tenn. Crim. App. May 22, 2015); and (4) it was unnecessary to have the Implied Consent Form read or signed by Henry if he never expressly revoked or withdrew his implied consent because the State was not prosecuting him for a violation of the implied consent law, see State v. Shirley Larhonda Gagne, No. E2009-02412-CCA-R3-CD, 2011 WL 2135105, at *9 (Tenn. Crim. App. May 31, 2011).

         Defense counsel responded that the real issue was whether the officers had properly advised Henry, although he also sought to preserve the issue of whether the implied consent statute is an exception to the warrant requirement. He noted that Code sections 55-10-406(d)(5)(A), (B), which govern mandatory blood draws for individuals with prior DUI convictions and for drivers involved in accidents involving injury or death of another, require that "[t]he test shall be performed in accordance with the procedure set forth in this section[.]" Moreover, he said that Code section 55-10-406(c) states that an officer, "shall, prior to conducting either test or tests, advise the driver that refusal to submit to the test or tests will result in the suspension by the court of the driver's operator's license." Defense counsel, noting the State had conceded that Henry was told only that the blood test was mandatory, then asserted, "Our position under this statute is . . . that whether or not you use the exact language of the Implied Consent Form, whether or not you have [the motorist] sign an Implied Consent Form, whatever means are used to convey that information to the Defendant, to the driver, you've got to say: 'If you refuse the test, you're going to lose your driver's license'" because this "put[s] the driver on notice that [he] can refuse the test." While defense counsel admitted that he had not presented any proof that Henry withdrew or revoked his consent, he asserted that the officers in this case had failed to comply with the statute, which rendered the blood draw invalid and required the suppression of the test results.

         After hearing arguments from the parties, the trial court said it found Sergeant Rhodes and Officer Rhodes to be "credible witnesses" who had been "very candid" about what occurred in the case. The court then granted the suppression motion, stating:

If you look at 55-10-406, it does say that a driver of a motor vehicle in this state is deemed to have given consent to test or tests for determining drug and alcohol content.
But I think you then have to go look at Section ([55-10-406(c)], which says that prior to conducting either test the law enforcement officer shall advise the driver that he has the right to refuse the test. And that, I think, is critical. And that candidly both officers indicated they didn't tell him that, that they told him that it was a mandatory test.
I think that's a distinction from the [State v. A.D.] Smith[, No. W2015-00133-CCA-R9-CD, 2015 WL 9177646 (Tenn. Crim. App. Dec. 15, 2015) perm. app. denied (Tenn. Nov. 22, 2016), ] case. In the Smith case the officer testified that he went over the Implied Consent Form with him and that he just had a clerical error in forgetting to get him to sign it and mark in the correct box.
But at the end of the day it's an invasion of a person under the Fourth Amendment without a warrant.
So because of that, I'm going to . . . grant the Motion to Suppress the testing.

         On May 2, 2016, the trial court entered an order suppressing the results of Henry's blood alcohol test, which stated in pertinent part:

1. The Court makes the following findings of fact: [Henry] was arrested by officers of the Henderson, Tennessee Police Department for DUI on March 18, 2015. At the hearing the officers testified that they believed that a mandatory blood draw was required under TCA §55-10-406(d)(5)(B). The evidence presented at the hearing established that the officers did not obtain a search warrant for the blood draw. At the hearing the arresting officers admitted that they did not have [Henry] sign the Implied Consent Form that they usually use when administering blood tests to individuals suspected of DUI, nor did they read it to him. The officers admitted that they did not advise [Henry] he could refuse to have his blood drawn or that refusal to submit to the test would result in the suspension by the court of his operator's license. The officers caused [Henry's] blood to be drawn.
2. The Court finds that TCA §55-10-406(d)(5)(B) required the officers to comply with procedures set for[th] in TCA § 55-10-406(c) and that the officers' failure to advise [Henry] that "refusal to submit to the test or test[s] will result in the suspension by the court of the driver's operator's license" as required by the statute, rendered the blood test illegal under the statute. Accordingly, this court grants [Henry's] Motion to Suppress any evidence related to the results of the blood tests performed on the Defendant.
It is therefore, Ordered, Adjudged and Decreed that any evidence related to the results of the blood tests performed on [Henry] is hereby suppressed.

         The State subsequently filed a motion for permission to file an interlocutory appeal from the trial court's order and to stay further proceedings in this case, which the trial court granted. The State then filed a timely ...


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