IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 6, 2015

STATE OF TENNESSEE v. DENNIS SPRAWLING

Appeal from the Criminal Court for Shelby County

No. 1401576 Carolyn W. Blackett, Judge

No. W2014-02511-CCA-R9-CD - Filed July 5, 2016

_____________________________

Defendant, Dennis Sprawling, was indicted by the Shelby County Grand Jury for one 

count of driving under the influence of an intoxicant (DUI), one count of driving with a 

blood alcohol content of more that 0.20% (DUI per se), and one count of reckless driving. 

A separate count alleged that Defendant had previously been convicted of DUI. In this 

interlocutory appeal, the appellant, State of Tennessee appeals the Shelby County 

Criminal Court‟s order granting a motion to suppress filed by Defendant. The State 

claims that the trial court erroneously suppressed Defendant‟s blood test results because 

the “arresting officer had both actual and implied consent” to draw a sample of 

Defendant‟s blood following Defendant‟s arrest for DUI. After a thorough review, we 

affirm the judgment of the trial court. 

Tenn. R. App. P. 9, Interlocutory Appeal; Judgment of the Criminal Court 

Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which CAMILLE R.

MCMULLEN, J., joined. ROBERT L. HOLLOWAY, JR., J., filed a concurring opinion.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Stephanie Johnson, 

Assistant District Attorney General, for the Appellant, State of Tennessee.

Cornelius Bostick, Memphis, Tennessee, for the Appellee, Dennis Sprawling.
2

OPINION

BACKGROUND

Suppression Hearing

Lieutenant A.J. Kant of the Memphis Police Department testified that at

approximately 2:00 a.m. on April 21, 2013, he was traveling westbound on Union 

Avenue in Memphis when he observed a 2001 Chevrolet Blazer being driven in an

“erratic manner.” Lieutenant Kant noted that the vehicle was “weaving between all three 

westbound lanes” of Union Avenue. Lieutenant Kant followed the vehicle for 

approximately one mile until it turned “north on Marshall and then made an immediate 

westbound left turn on Monroe and then made an immediate turn into a parking lot.” 

Lieutenant Kant stopped the driver, identified as Defendant, as he exited his 

vehicle. It appeared to Lieutenant Kant that Defendant was intoxicated because 

Defendant was unsteady on his feet, and he smelled of alcohol. Lieutenant Kant said, “It 

was obvious that [Defendant] had been drinking.” He noted that Defendant was 

cooperative. Lieutenant Kant called for a unit from the “South Main Station” to meet 

him at the scene, and when the other officer arrived, they patted Defendant down and 

placed him in the back of the other officer‟s patrol car. Lieutenant Kant testified that he 

then called for a DUI unit to respond to the scene. 

Officer Ken Fox of the Memphis Police Department‟s DUI Unit responded to 

Lieutenant Kant‟s call and received information from Lieutenant Kant concerning 

Defendant. Officer Fox testified that Defendant was transported to the “Traffic Precinct 

to do a Standardized Field Sobriety Test.” Officer Fox learned that Defendant had a prior 

DUI conviction, and he read the Implied Consent Law to Defendant, and Defendant 

consented to have his blood drawn. Officer Fox noted that Defendant was cooperative. 

He said that Defendant did not want to perform the field sobriety tests because he was 

cold; however, Officer Fox testified that Defendant never indicated that he did not want 

to have his blood drawn. Officer Fox‟s interaction with Defendant was recorded on 

video. 

On cross-examination, the following exchange took place between Officer Fox 

and defense counsel:

Q. Officer Fox.

A. Yes, sir.
3

Q. Now, you prepared - - you prepared [the] Tennessee Implied 

Consent Advisement form?

A. Yes, sir. 

Q. All right. This is what - - this is customary if one has a DUI - - for 

a DUI arrest; correct?

A. Yes, sir. That‟s our report. 

Q. All right. On your report - - and at the time that this report was 

drawn up the law was that if someone has a prior DUI conviction they 

have to submit to a blood draw; correct?

A. Yes, sir. 

Q. They don‟t have any choice in the matter; correct?

A. Yes, sir.

Q. They can‟t consent. They can‟t say I don‟t want to submit to a 

blood draw?

A. Right.

Q. How - - I want to give you an opportunity to review this and tell 

me, explain to me how it says - - let you review this document first. I‟m 

sorry. Are you familiar with that document, Officer?

A. Yes, sir. 

Q. Okay. Now, it says here that the subject - - you can go to Section 

3. It says subject will consent to a test or tests?

A. Yes, sir. 

Q. All right. How did [Defendant] consent to the test? Was it a 

written consent?

A. No. He - - he - - I explained to him that in the State of Tennessee if 

you have a prior DUI it‟s mandatory that we draw your blood and he - -

he simply said okay. 

Q. So was there any basis - - in that kind of situation they don‟t ever 

have to sign off on anything? They don‟t have to sign off on - -

A. There‟s nothing mandatory for him to sign, you know. We can get 

him to sign but there‟s nothing saying that we have to get him to sign. 

Q. Back in April 21st, 2013 when someone is pulled over and they 

have to submit to a blood draw, they don‟t sign any consent forms like 

that. They do now; correct?

A. If the officer chooses to get him to sign it. 

Q. So it‟s within the discretion of the police officer?

A. Yes, sir.

On redirect examination, Officer Fox testified that if a person refused to consent 

to a blood draw, it was his practice to obtain a search warrant signed by a judicial 

commissioner authorizing the blood draw. Officer Fox testified that if Defendant had 
4

refused to have his blood drawn, Officer Fox would have obtained a search warrant. He 

was present when two tubes of blood were drawn from Defendant by a nurse. The tubes 

were taken to the Tennessee Bureau of Investigation (TBI) Crime Lab. 

Defendant testified that he did not understand what Officer Fox told him about 

the mandatory blood draw. He testified, “I just said okay.” Defendant testified that he 

was not “consenting to get [his] blood drawn or anything.” He also felt that he did not 

have a choice in the matter. Defendant testified that his understanding was that “we [are] 

going to take your blood either way. So it doesn‟t matter what you say.” 

On cross-examination, Defendant agreed that on the videotape, he asked Officer 

Fox what the officer meant. Officer Fox then told Defendant that the law “says you have 

to give blood because you have a prior conviction.” Defendant then replied, “okay.” 

Defendant and Officer Fox walked to the front of the precinct, and a nurse drew his blood 

and gave it to Officer Fox. 

After the suppression hearing, the trial court issued a written order granting 

Defendant‟s motion to suppress. The order contained the following pertinent factual 

findings:

Here, the evidence does not weigh in favor of Defendant‟s “consent” 

being free and voluntary or free from contamination. First, Officer Fox 

explained the implied consent law to Defendant as he understood it in 

April 2013, giving the impression that Defendant had no choice but to 

submit to the testing. In the video, Defendant is clearly heard asking 

Officer Fox to explain the law once more. Officer Fox explains again 

that Defendant, because he has a prior DUI conviction, must give a 

blood sample. Defendant then states, almost rhetorically, “so I have to 

give blood.” It appears that Defendant feels he has no choice in the 

matter; he is coerced into submitting to the test. When Defendant utters 

the word “okay” to Officer Fox, it is not consent so much as resignation 

to this compelled situation. Defendant did not freely and voluntarily, 

and without duress or coercion, consent to the blood test. 

Second, the State made much of Defendant‟s cooperative attitude during 

the taking of the blood sample. However, cooperation is not evidence of 

a freely, voluntarily given consent. If anything, it is more evidence that 

Defendant, already believing he had no choice, did not wish to make a 

bad situation worse for himself with belligerence. Perhaps Defendant 

was unsure if the blood would be taken forcibly or with hostility if he 
5

fought the test. In any event, cooperation with a coerced test is not 

consent. 

Because Defendant‟s “consent” is not freely given without coercion, 

there is no valid consent within the meaning of the Fourth Amendment. 

As a result, the blood taken from Defendant was an illegal search that 

must be suppressed at trial. 

The trial court entered a subsequent supplemental order granting Defendant‟s 

motion to suppress which contained the following:

In the Court‟s prior Order, no exigent circumstances were found giving 

rise to an exemption [sic] to the warrant requirement, thus making the 

warrantless taking of Defendant‟s blood for testing unconstitutional 

under the Fourth Amendment. Consent is, almost by definition, at issue 

in any case involving the Tennessee implied consent statute. In State v. 

Janosky, No. M1999-02574-CCA-R3-CD, 2000 WL 1449367, *6 (Tenn. 

Ct. Crim. App. Sept. 29, 2000), the Court of Criminal Appeals held that 

“the voluntariness of the motorist‟s consent at the time of the testing is 

of no consequence because the motorist has impliedly consented as a 

matter of law when he or she elects to operate a motor vehicle” on 

Tennessee roads. Janosky, 2000 WL 1449367, at *6. Yet, recent case 

law from the same court has negated this rule. “While the State may 

attempt to persuade the accused to submit to a search by providing 

consequences for a failure to submit to a tested ordered upon probable 

cause . . . the privilege of driving does not alone create consent for a 

forcible blood draw. State v. Wells, No. M2013-01145-CCA-R9-CD, 

2014 WL 4977356, *13 (Tenn. Ct. Crim. App. October 6, 2014). The 

court went on to state that a mandatory blood draw “is not reasonable 

unless performed pursuant to a warrant or to an exception to the warrant 

requirement” because of the “gravity of the intrusion into privacy 

inherent in a forcible blood draw.” Id. (emphasis added)

The Court would also like to clarify that it does not believe the reading 

of the implied consent form to be a coercive act leading to consent on the 

part of a defendant. The “consent” relied upon by the State in this case 

was coerced in the sense that Defendant did not freely or voluntarily give 

consent; it was not given at all, in fact. The phrase “free and 

voluntarily” implies that the person consenting is aware of what they are 

allowing the police to do. State v. McMahan, 650 S.W.2d 383, 386 

(Tenn. Ct. Crim. App. 1983). “The sufficiency of the consent depends 
6

largely upon the facts and circumstances presented by each particular 

case.” State v. Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 

1986). The facts of this case show that Defendant felt he had no choice 

but in cooperating with the test. 

Officer Fox explained the implied consent law to 

Defendant as he understood it in April 2013, giving the 

impression that Defendant had no choice but to submit 

to the testing. In the video, Defendant is clearly heard 

asking Officer Fox to explain the law once more. 

Officer Fox explains again that Defendant, because he 

has a prior DUI conviction, must give a blood sample. 

Defendant then states, almost rhetorically, “so I have to 

give blood.” It appears that Defendant feels he has no 

choice in the matter; he is coerced into submitting to the 

test. When Defendant utters the word “okay” to Officer 

Fox, it is not consent so much as resignation to this 

compelled situation. Defendant did not freely and 

voluntarily, and without duress or coercion, consent to 

the blood test. 

Order Grant‟g Def.‟s Mot. to Suppress 7, Oct. 30, 2014. When 

Defendant submitted to the blood draw, it was not the reading of the 

implied consent form that coerced his submission to the test; it is the 

explanation of Tennessee law offered by Officer Fox. 

Further, the October 30 Order of this Court stated that “cooperation with 

a coerced test is not consent.” Id. at 8. Janosky mentions that express 

refusal is the hallmark of lack of consent, no voluntariness of 

submission. Janosky, 2000 WL 1449367, at *6. Yet, in a case with a 

clear lack of express consent, the “facts and circumstances [of] each 

particular case” are elevated in importance. Blackwood, 713 S.W.2d at 

680. In the case at bar, we have a lack of express consent but actions 

equivalent to voluntariness of submission. Janosky, 2000 WL 1449367, 

at *6; Order Grant‟g Def.‟s Mot. to Suppress 7, Oct. 30, 2014. It is 

Defendant‟s belief that he has no alternative but to submit to the test, 

based upon the explanation of the law provided by Officer Fox, that 

remains dispositive on the issue of consent. 

Because Defendant‟s “consent” is not freely given without coercion, 

there is no valid consent within the meaning of the Fourth Amendment. 
7

As a result, the blood taken from Defendant was an illegal search that 

must be suppressed at trial. 

ANALYSIS

In this interlocutory appeal, the State argues that the “totality of the 

circumstances” demonstrates that Defendant voluntarily consented to a blood draw in this 

case and that Defendant gave both actual and implied consent to have his blood drawn. 

Therefore, according to the State, the trial court erred by granting Defendant‟s motion to 

suppress. We disagree. 

In reviewing the trial court‟s decision on a motion to suppress, we review the trial 

court‟s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008). 

In doing so, we give deference to the trial judge‟s findings of fact unless the evidence 

preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State 

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “„[C]redibility of the witnesses, the weight 

and value of the evidence, and resolution of conflicts in the evidence are matters 

entrusted to the trial judge as the trier of fact.‟” Northern, 262 S.W.3d at 747-48 (quoting 

Odom, 928 S.W.2d at 23). In reviewing the findings of fact, evidence presented at trial 

may “„be considered by an appellate court in deciding the propriety of the trial court‟s 

ruling on the motion to suppress.‟” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003) 

(quoting State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the 

motion to suppress is afforded the “„strongest legitimate view of the evidence and all 

reasonable and legitimate inferences that may be drawn from that evidence.‟” Northern, 

262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); see State 

v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at 23. 

Both the federal and state constitutions provide protections from unreasonable 

searches and seizures. The general rule is that a warrantless search or seizure is 

presumed unreasonable, and any evidence discovered by virtue thereof is subject to 

suppression. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “[T]he most basic 

constitutional rule . . . is that „searches conducted outside the judicial process, without 

prior approval by judge or magistrate, are per se unreasonable under the Fourth 

Amendment – subject only to a few specifically established and well-delineated 

exceptions.‟” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L.

Ed. 2d 564 (1971) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.

Ed. 2d 576 (1967)); see also State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997) (“[A] 

warrantless search or seizure is presumed unreasonable, and evidence discovered as a 

result thereof is subject to suppression unless the State demonstrates that the search or 

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant 

requirement.”). “It is, of course, well settled that one of the exceptions to the warrant 
8

requirement is a search conducted pursuant to consent.” State v. Bartram, 925 S.W.2d 

227, 230 (Tenn. 1996). “The sufficiency of consent depends largely upon the facts and 

circumstances in a particular case.” State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. 

App. 1993). It is the burden of the prosecution to prove that the defendant freely and 

voluntarily gave consent. State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 

1983). “„The existence of consent and whether it was voluntarily given are questions of 

fact.‟” State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999)(quoting McMahan, 

650 S.W.2d at 386). Actual consent to a warrantless search “must be „unequivocal, 

specific, intelligently given, and uncontaminated by duress or coercion.‟” State v.

Ingram, 331 S.W.3d 746, 760 (Tenn. 2011)(quoting State v. Berrios, 235 S.W.3d 99, 104 

(Tenn. 2007)). 

State compelled blood draws are considered to be searches for Fourth Amendment 

purposes. State v. Jordan, 7 S.W.3d 92, 98 (Tenn. Crim. App. 1999)(quoting Schmerber

v. California, 384 U.S. 757, 767 (1966)); See also Missouri v. McNeely, 133 S.Ct. 1552, 

1558 (2013). Therefore, in this case we must determine whether the warrantless blood 

draw was justified by an exception to the warrant requirement. The State argues that

Officer Fox had both actual and implied consent to draw a sample of Defendant‟s blood. 

We find that the trial court in this case made specific factual findings, as recited 

above, concerning the issue of actual consent. The trial court found that Defendant did 

not give consent to have his blood drawn, and our review of the record does not 

preponderate against this finding. Officer Fox explained the implied consent law to 

Defendant as it was understood in April of 2013. Defendant asked Officer Fox to explain 

the law one more time. The officer explained to Defendant that because Defendant had a 

prior DUI, Defendant must give a blood sample. Defendant stated, “so I have to give 

blood.” After that, Defendant stated “okay.” As found by the trial court, this implies that 

Defendant felt that he had no choice other than to submit to the blood draw. Defendant‟s 

consent was not “„unequivocal, specific, intelligently given, and uncontaminated by 

duress or coercion.‟” Ingram, 331 S.W.3d at 760 (citing State v. Berrios, 235 S.W.3d 99, 

109 (Tenn. 2007) (quoting State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998)). 

Moreover, as also pointed out by the trial court, Defendant‟s cooperation with the blood 

draw does not imply actual consent. As noted above, well-settled case law (routinely 

relied upon by the State whenever it prevails in the trial court) mandates that the appellate 

court must recognize that the credibility of the witnesses and the resolution of conflicts in 

the evidence are matters to be determined solely by the trier of fact, in this case the trial 

judge. Northern, 262 S.W.3d at 747-48 (quoting Odom, 928 S.W.2d at 23). The trial 

court made a factual finding based upon its review of the evidence that Defendant did not 

consent to have his blood sample drawn. There was evidence presented which justified 

this conclusion by the trial court. The trial court obviously did not credit the officer‟s 

testimony that Defendant had consented to the blood test. 
9

Next, the State argues that Defendant gave implied consent to the blood draw by 

operating a motor vehicle on the roadways of Tennessee and that this implied consent 

was never revoked. At the time of Defendant‟s arrest, T.C.A. § 55-10-406 provided, in 

pertinent part, as follows:

(a)(1) Any person who drives a motor vehicle in this state is deemed to have 

given consent to a test or tests for the purpose of determining the alcoholic content 

of that person‟s blood, a test or tests for the purpose of determining the drug 

content of the person‟s blood, or both tests. However, no such test or tests may be 

administered pursuant to this section, unless conducted at the direction of a law 

enforcement officer having reasonable grounds to believe the person was driving 

while under the influence of alcohol, a drug, any other intoxicant or any 

combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, 

or was violating § 39-13-106, § 39-13-213(a)(2) or § 39-13-218. 

. . .

(4)(A) If such person, having been placed under arrest and then having 

been requested by a law enforcement officer to submit to either or both 

tests, and having been advised of the consequences for refusing to do so, 

refuses to submit, the test or tests to which the person refused shall not 

be given, and the person shall be charged with violating this subsection 

(a). 

. . .

(f)(2) If a law enforcement officer has probable cause to believe that the 

driver of a motor vehicle has committed a violation of § 39-13-213 

(a)(2), § 39-13-218 or § 55-10-401 and has been previously convicted of 

§ 39-13-213(a)(2), §39-13-218 or §55-10-4012 the officer shall cause the 

driver to be tested for the purpose of determining the alcohol or drug 

content of the driver‟s blood. The test shall be performed in accordance 

with the procedure set forth in this section and shall be performed 

regardless of whether the driver does or does not consent to the test. 

T.C.A. § 55-10-406(a)(1), (a)(4)(A), (f)(2). 

The trial court also made specific findings of fact concerning this issue, and the 

record does not preponderate against those findings. Relying on cases from this court, 

the trial court found in part that the privilege of driving does not alone create consent for 
10

a forcible blood draw. T.C.A. § 55-10-406(f)(2) mandated the taking of Defendant‟s 

blood in this case. However, this court has held that this does not eliminate the warrant 

requirement under the Fourth Amendment. As several panels of this court have pointed 

out, the statute is silent as to whether a warrant is required for the mandatory blood draw, 

and this court has concluded that the provision was not intended “to operate as a blanket 

exception to the warrant requirement.” State v. Charles Kennedy, No. M2013-02207-

CCA-R9-CD, 2014 WL 4953586, at *12 (Tenn. Crim. App. Oct. 3, 2014); State v. James 

Dean Wells, No. M2013-01145-CCA-R3-CD, 2014 WL 4977356, at *13 (Tenn. Crim. 

App. Oct. 6, 2014); But cf., State v. A.D. Smith, III, No. W2015-00133-CCA-R9-CD, 

2015 WL 9177646 (Tenn. Crim. App. Dec. 15, 2015)(dissent holding that privilege of 

driving does not alone create consent for a forcible blood draw)(majority holding that 

Defendant‟s implied consent was never withdrawn or revoked).

We also conclude that the “the privilege of driving does not alone create consent 

for a forcible blood draw,” and “such a search if not reasonable unless performed 

pursuant to a warrant or an exception to the warrant requirement.” James Dean Wells, 

No. M2013-01145-CCA-R3-CD, 2014 WL 4977356, at *13. The State, in a footnote in 

its brief, asserts that this case is an appropriate case for application of the so called “good 

faith exception” to the Fourth Amendment‟s exclusionary rule as adopted in Federal 

Courts by the United States Supreme Court in United States v. Leon, 468 U.S. 897 

(1984). We believe that Tennesseans have adjusted well for over three decades under our 

State‟s constitution without adoption of any good faith exception to the protections 

afforded to persons by the Fourth amendment over 200 years ago and in Art. I § 7 of 

Tennessee‟s Constitution. See State v. Bearden, 326 S.W.3d 184, 188 (Tenn. Crim. App. 

2010). We should not alter Tennessee Law. See State v. Christopher Wilson, No. 

W2015-00699-CCA-R9-CD, 2016 WL 1627145 (Tenn. Crim. App. April 21,

2016)(Woodall, P.J., concurring opinion). 

CONCLUSION

Because there was no warrant and no exception to the warrant requirement existed 

in this case, we affirm the judgment of the trial court suppressing the results of 

Defendant‟s blood test.

____________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE