State v. Jerry Huskins ( 1998 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 29, 1998
JUNE 1998 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellant, ) C.C.A. No. 01C01-9707-CR-00253
)
vs. ) Putnam County
)
JERRY HUSKINS, ) Hon. John Turnbull, Judge
)
Appellee. ) (DUI - Interlocutory State Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP DON DICKERSON
Attorney General & Reporter Attorney at Law
310-D E. Broad St.
ELIZABETH B. MARNEY Cookeville, TN 38501
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
WILLIAM EDWARD GIBSON
District Attorney General
TONEY CRAIGHEAD
Asst. District Attorney General
145 S. Jefferson Ave.
Cookeville, TN 38501
OPINION FILED:________________
REVERSED AND REMANDED
CURWOOD WITT, JUDGE
OPINION
We granted the state's petition for an interlocutory appeal1 in this
prosecution for driving under the influence to review the Putnam County Criminal
Court's order suppressing the results of the defendant's blood alcohol test. The trial
court suppressed the evidence because the law enforcement officer who ordered
the test failed to warn the defendant as required by Tennessee Code Annotated
section 55-10-406(a)(2) that failure to give a sample would result in suspension of
the defendant's driver's license. For the reasons that follow, we find the trial court's
ruling in error. Accordingly, we reverse the order suppressing the evidence and
remand this matter to the trial court for further proceedings consistent with this
opinion.
Law enforcement officers discovered the defendant at the scene of a
one-car wreck. The defendant was transported by emergency medical personnel
to a local hospital for treatment of his injuries. While the defendant was at the
hospital, a law enforcement officer asked the defendant to give a sample for blood
alcohol testing. The defendant agreed to give the sample. The officer did not tell
the defendant the consequence of refusing the procedure. After the sample was
drawn, the defendant was arrested for the crime of driving under the influence.
I
The primary issue for the court is whether the trial court correctly
suppressed the blood alcohol test results based upon the officer's failure to give the
license suspension admonition.
As pertinent to this appeal, Tennessee's implied consent law provides
1
Tenn. R. App. P. 9.
2
(a)(1) Any person who drives any motor vehicle in this state is
deemed to have given consent to a test for the purpose of
determining the alcoholic or drug content of that person's blood;
provided that, such test is administered at the direction of a law
enforcement officer having reasonable grounds to believe such
person was driving while under the influence of an intoxicant or drug,
as defined in § 55-10-405. Any physician, registered nurse, licensed
practical nurse, clinical laboratory technician, licensed paramedic or,
notwithstanding any other provision of law to the contrary, licensed
emergency medical technician approved to establish intravenous
catheters, or technologist, or certified and/or nationally registered
phlebotomist who, acting at the written request of a law enforcement
officer, withdraws blood from a person for the purpose of making such
a test, shall not incur any civil or criminal liability as a result of the
withdrawing of such blood, except for any damages that may result
from the negligence of the person so withdrawing. Neither shall the
hospital nor other employer of the previously listed health care
professionals incur, except for negligence, any civil or criminal liability
as a result of the act of withdrawing blood from the person.
(2) Any law enforcement officer who requests that the driver of a
motor vehicle submit to a test pursuant to this section for the purpose
of determining the alcoholic or drug content of the driver's blood, shall,
prior to conducting such test, advise that refusal to submit to such test
will result in the suspension of the driver's operator's license by the
court. The court having jurisdiction of the offense for which such
driver was placed under arrest shall not have the authority to suspend
the license of a driver who refused to submit to the test if such driver
was not advised of the consequences of such a refusal.
(3) If such person having been placed under arrest and thereafter
having been requested by a law enforcement officer to submit to such
test and advised of the consequences for refusing to do so, refuses
to submit, the test shall not be given and such person shall be
charged with violating this subsection. The determination as to
whether a driver violated the provisions of this subsection shall be
made at the same time and by the same court as the one disposing
of the offense for which such driver was placed under arrest. If the
court finds that the driver violated the provisions of this subsection,
the driver shall not be considered as having committed a criminal
offense; however, the court shall suspend the license of such driver
for a period of six (6) months. 2
(b) Any person who is unconscious as a result of an accident or is
unconscious at the time of arrest or apprehension or otherwise in a
condition rendering that person incapable of refusal, shall be
subjected to the test as provided for by §§ 55-10-405 - 55-10-412, but
the results thereof shall not be used in evidence against that person
in any court or before any regulatory body without the consent of the
person so tested. Refusal of release of the evidence so obtained will
result in the suspension of that person's driver['s] license, thus such
2
This subsection was amended in 1996 to provide for a twelve-month
suspension.
3
refusal of consent shall give such person the same rights of hearing
and determinations as provided for conscious and capable persons
in this section.
...
(e) Nothing in this section shall affect the admissibility in evidence, in
criminal prosecutions for aggravated assault or homicide by the use
of a motor vehicle only, of any chemical analysis of the alcoholic or
drug content of the defendant's blood which has been obtained by
any means lawful without regard to the provisions of this section.
Tenn. Code Ann. § 55-10-406(a)(1), (a)(2), (a)(3), (b), (e) (Supp. 1995) (amended
1996).
The state argues that the statutory scheme does not contemplate
suppression of lawfully obtained evidence if a driver consents to the blood alcohol
test, even absent the license suspension admonition. Further, the state claims,
logic dictates that the statute be interpreted to allow consensual submission to blood
alcohol testing without recitation of the consequences of failing to submit. On the
other hand, the defendant argues that the proper remedy is suppression because
the statute speaks in clear, unequivocal terms that the officer "shall" give the license
suspension warning "prior to" the test. Further, according to the defendant,
subsection 55-10-406(e) carves out a limited exception for admissibility of evidence
obtained without the admonition only if the defendant faces charges for aggravated
assault or homicide by use of a motor vehicle. The defendant finds the omission
of the crime of DUI from subsection 55-10-406(e) to be telling of the legislature's
intent that test results obtained without the admonition be suppressed in DUI cases.
Our review of the statute and relevant caselaw leads us to agree with
the state. The clear purpose of the admonition requirement is to warn drivers of the
consequences of failing to comply with the implied consent law. If a driver has been
so warned yet refuses a blood alcohol test, his driver's license is subject to
4
suspension. The warning puts him on notice of that consequence. After
mandating the admonition regarding a refusal to be tested, the statute in the next
sentence states the result of the refusal: “The court . . . shall not have the authority
to suspend the license of a driver who refused to submit to the test if such
driver was not advised of the consequences of such refusal.” Tenn. Code Ann. §
55-10-406(a)(2) (emphasis added).
The language used in the statute makes it clear that the warning is not
a Miranda-type warning that the driver is not compelled to give evidence against
himself. As we have previously observed, an officer's request that a driver submit
to a blood alcohol test "is not governed by the Miranda rule." State v. Snapp, 696
S.W.2d 370, 371 (Tenn. Crim. App. 1985); see also State v. Frasier, 914 S.W.2d
467, 471 n.4 (Tenn. 1996) (Miranda warnings not required in conjunction with
request that driver take a blood alcohol test because test is not considered to be an
interrogation) (Reid, J., dissenting); State v. Blackwood, 713 S.W.2d 677, 680
(Tenn. Crim. App. 1986). In other words, test results obtained from a consensual
blood alcohol test are not subject to suppression simply because Miranda warnings
were not given. The license revocation admonition in the case at bar did not even
rise to the level of a Miranda-type warning; a fortiori, the defendant's test results are
not subject to suppression simply because the admonition was not given. See
Snapp, 696 S.W.2d at 371.
This result is indirectly supported by our reasoning in State v. Dennie
Ray Loden, No. 03C01-9311-CR-00380 (Tenn. Crim. App., Knoxville, Jan. 19,
1995), perm. app. denied (Tenn. 1995). In that case, the defendant argued that
evidence of his refusal to take a blood alcohol test was subject to suppression
because the officer had not fully complied with the requirement that the license
suspension admonition be given. Dennie Ray Loden, slip op. at 5. We declined to
5
hold that the admissibility of the defendant's refusal to take the test hinged on the
officer's compliance with the warning requirement of subsection 55-10-406(a)(2).
We see no reason why a different rule should apply when the evidence in question
consists of test results, rather than a refusal to take the test.
Further, this holding is supported by analogy to State v. Gilbert, 751
S.W.2d 454 (Tenn. Crim. App. 1988). In Gilbert, the defendant argued that the trial
court erroneously admitted evidence of his blood alcohol content because the state
failed to prove that his blood sample was drawn in accord with subsection 55-10-
406(a)(1). Gilbert, 751 S.W.2d at 461. In rejecting this argument, a panel of this
court observed that the purpose of subsection 55-10-406(a)(1) is to "protect the
donor [defendant] from being subjected to unhealthful conditions in the procurement
of a blood sample and to prohibit the donor [defendant] from being subjected to
unqualified people taking samples." State v. Gilbert, 751 S.W.2d 454, 461 (Tenn.
Crim. App. 1988) (quoting State v. Stowers, 649 S.W.2d 607, 608-09 (Tenn. Crim.
App. 1983)).3 In other words, the purpose of the statute is to protect the defendant
from a concern ancillary to the admission of his blood alcohol test results in a
prosecution involving alleged drinking and driving. The Gilbert panel held that the
state was not required to prove compliance with the statute as a prerequisite to
admissibility. Gilbert, 751 S.W.2d at 461; cf. State v. Melvin L. Gipson, No. 86-66-III
(Tenn. Crim. App., Nashville, August 19, 1986).
3
Stowers actually addressed the purpose of section 55-10-410, although
Gilbert cites it as authority for the purpose of subsection 55-10-406(a)(1). See
Stowers, 649 S.W.2d at 608. We note, however, that both subsection 55-10-
410(a) and subsection 55-10-406(a)(1) contain virtually identical lists of medical
personnel from which the person taking the sample is to be chosen. Compare
Tenn. Code Ann. § 55-10-406(a)(1) with Tenn. Code Ann. § 55-10-410(a).
Subsection 55-10-406(a)(1) immunizes these individuals from non-negligent civil
and criminal liability in the performance of their duties attendant to taking the
sample, while subsection 55-10-410(a) mandates that the sample "shall" be
drawn by an individual in one of the enumerated categories. Given the similarity
of the two statutes, we believe Gilbert is compelling authority for the purpose of
subsection 55-10-406(a)(1), notwithstanding its reliance upon Stowers.
6
The situation at bar is analogous to Gilbert. As we observed above,
the clear import of subsection 55-10-406(a)(2) is to protect a driver from license
suspension if he was not admonished about license suspension. Just as Gilbert
found that subsection 55-10-406(a)(1) protects the defendant from ancillary harm,
so does subsection 55-10-406(a)(2). The latter section is designed to advise the
defendant of the detriment that results from refusing a blood test in connection with
DUI or other drinking-and-driving crimes. Thus, the statute's purpose is not to carve
out a rule of exclusion when the provisions of subsection (a)(2) have not been
followed. As applied to the facts of the case at bar, the officer's non-compliance with
the license suspension warning requirement does not warrant suppression of the
defendant's blood alcohol test results at trial.
In reaching this result, we have rejected the defendant's argument that
subsection 55-10-406(e) silently mandates suppression of test results in a case
such as the one at bar. We interpret subsection 55-10-406(e) as addressing the
admissibility of otherwise lawfully obtained test results where the sample was not
voluntarily taken, i.e. when the defendant refuses to submit voluntarily to testing or
when the defendant is unconscious or otherwise incapable of rendering consent at
the time the sample is drawn.4 See, e.g., State v. Cleo Mason, No. 02C01-9310-
CC-00233, slip op. at 11-22 (Tenn. Crim. App., Jackson, Mar. 13, 1996) (Wade, J.,
concurring in results only); State v. Terry E. Colorigh, No. 01C01-9112-CR-00380,
slip op. at 4-5 (Tenn. Crim. App., Nashville, Oct. 22, 1992). Nothing in the statute,
the developed caselaw of this state, or the defendant's brief causes us to believe
4
Section 55-10-406 provides greater individual protection than the United
States and Tennessee Constitutions with respect to the voluntariness of blood
alcohol sampling. Cleo Mason, slip op. at 12 (citations omitted). The net effect
of subsection (e) is to strip defendants in cases of aggravated assault and
homicide by use of a motor vehicle of the statute's greater protections, leaving
them with only the lesser constitutional protections. See generally Cleo Mason,
slip op. at 10-22.
7
that the legislature intended for subsection (e) to operate as a bar to admissibility
if the admonition contemplated by subsection (a)(2) is not given.
Accordingly, the trial court erred in suppressing the defendant's blood
alcohol test results.
II
The defendant has raised a secondary issue, namely, whether the
state waived its right to appeal by failing to comply with an allegedly agreed upon
abbreviated time for filing an application for interlocutory appeal. Apparently, the
assistant district attorney announced at the conclusion of the suppression hearing
that he would decide whether to pursue an appeal within ten days.5 The trial court
entered an order suppressing the evidence and giving the state ten days from the
date of the hearing in which to decide whether to pursue appellate relief. The state
initiated its application within the 30 days provided by Rule of Appellate Procedure
9(b), but not within the ten days allowed in the trial court's order.
The defendant is not entitled to the relief he seeks because the trial
court was without the authority to shorten the time period for the state's Rule 9
application. "The supreme court has the power to prescribe by general rules the
forms of process, writs, pleadings and motions, and the practice and procedure in
all of the courts of this state in all civil and criminal suits, actions and proceedings."
Tenn. Code Ann. § 16-3-402 (1994). "Each of the other courts of this state [courts
other than the supreme court] may adopt additional or supplementary rules of
practice and procedure not inconsistent with or in conflict with the rules prescribed
by the supreme court." Tenn. Code Ann. § 16-3-407 (1994). The trial court's
5
This statement does not appear in the transcript of that hearing that has
been provided to this court in the record.
8
inclusion of a ten-day period for seeking a Rule 9 appeal is in direct conflict with the
supreme court's edict of a 30-day limitation period in Rule 9(b). Accordingly, the
trial court was without authority to alter the time period, and the state cannot be
bound by a ruling the trial court was without authority to issue. Cf. State v. Best,
614 S.W.2d 791, 793 (Tenn. 1981) (court of criminal appeals was without authority
to impose time limitation on Rule 10 application where rule does not impose a time
limitation); Ford Motor Co. v. Moulton, 511 S.W.2d 690, 695 (Tenn. 1974) (court of
appeals may modify its rules so long as there is no conflict with rules of the supreme
court). The defendant is not entitled to relief based upon the state's failure to
comply with an invalid time limitation.
The trial court's order suppressing the defendant's blood alcohol test
results is reversed. This case is remanded to the trial court for further proceedings.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
JOE G. RILEY, JUDGE
_____________________________
R. LEE MOORE, JR., SPECIAL JUDGE
9