# FILED April 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9801- CR-00015 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRA NK G. CLEMENT,JR. ROY A. J ORDAN, ) JUDGE ) Appe llant. ) (Vehicular Homicide)
ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : JAMES ROBI N MCKINNY, JR. JOHN KNOX WALKUP One Washington Square Attorney Generaland Reporter Suite 103 214 Se cond A venue N orth ELIZABETH B. MARNEY Nashvill e, TN 37201 Assistant Attorney General 425 Fifth Avenu e North TOMMY TRAV IS OVE RTON Nashvill e, TN 37243 213 T hird Aven ue No rth Nashvill e, TN 37201 VICTOR S . JOHN SON Distri ct Attor ney General BERNARD MCE VOY Assistant Distri ct Attor ney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defenda nt, Roy A. Jordan, was found guilt y ofvehicular

homicide and sentenced to ten yea rs. He no w appe als his con viction, purs uant to Rule 3 ofthe Tennessee Rules of Appell ate Procedure. The Defendant presents two issues
on appeal: (1)whetherthe evid ence was s ufficien t to sup port the jury’s findingof guilt beyond a reasonabl e doubt; and (2)whether thetrial cou rt prop erly denied his mo tion to sup press the results of h is blood a lcohol tes t.

On O ctober 2 5, 1996 at appro ximately te n o’clock p.m., Mr. an d Mrs . Bill Ston e exited the Dark horse Th eatre on Ch arlotte Avenue after viewing a play. Mr. Bong Im, who was traveling westward on Charlotte in an Oldsmobile Cutlass, stopped his vehic le in f ront of t he theatre to allow th eatregoers to cross Charlot te. He signaled a group, whic h included t he Stone s, to cro ss the street in front of h is vehicle w h ere there was no c rosswalk. The first two indiv iduals i n the group crossed Charlott e safely. However, as t wo more indivi du als , the Stones, attempted to make their way across the street , the Defendant ’s Chevrol et Blazer, which was also tr

aveling west

ward on Charlotte, rear-e nded M r . Im’s car. Mr. Im’s vehicle l urched forwar d, stri king Mr. Stone and throwing his b ody over the hood of the car into the n ext intersection. Stone died at the scene. After hi tting Mr. Im’s c ar, the Bla zer veere d to the left an d struck a n onco ming c ar.

One eyewitne ss, Steve n Carl S calet, testified that he w as alerte d t o the impending accident by the “sound of a car

or truck coming too fast, j ust revvi ng up his engine.” He reported t hat the Blazer was travel ing at a speed in excess-3-

of forty-five or

fift y miles per ho ur. Scalet stated th at between theti me he looked up and first s aw the D efenda nt’s Blaze r approa ching, he had en ough tim e to think, “If he st

arts to st

op right now, he will avoid an ac cident. And even—you know, like hal f a second to a second later, . . . y ou stil l have another

chance; stop right now and you willnot hit this parked car.” He al so testi fied thatthe Bla zer did not “break up until t he very last milli second or a second and a hal f” befor e hitti ng Im’s car. Scalet stated that af ter theaccident, he watched the Defendan t exit the Blazer a nd notice d that the D efenda nt “looked like he ha d been drinking.”

Anothereyewitness t o t he acc ident, Mal ika Jackson, testif ied that t he Defe ndan t’s Bla zer

was trave li ng at

appr oxi ma tely sixty miles per hour . She estimated that fi ve seconds passed between the time th at she fi rst noti ced the Blazerspeed ing dow n the stree t and the ti me of co llision. She stated that M r. Im’s car was completely stopped at the time of

the crash.

A third eyew itness to the coll ision and a close friend o f the victim , Orville D. Hinkle , testifie d t hat he attende d the play wi th the vi ctim on the ni ght of the accidentand state d that he and hi s family c rossed Charlot te shortl y before t he Stones. Hinkle repor

ted that the portion of

Charlott e where the acci dent occurred
was wel l- li t at

theti me of the crash , illuminated by both s treet lights an d lights from a church. He al so maintained t hat Mr. Im’ s car was at a compl ete stop at the ti me of the cras h. He recall ed that after the crash , he ran by the D efend ant’s vehicle and ob served th e Defe ndant s itting with his head i n his hands . He stated that he noticed the “smell of alcoho l” as he ran by.-4- Evans Donn ell, a fourth eyewitness t o the accident , testi fied that the Blazer
was trave ling at a spee d over forty-five m iles pe r hour b efore h itting Mr . Im’s stopped car. Like M r. Hinkle, he reported that Cha rlotte A venue was well- lit at the time of the acc i dent and that although i t began to rai n shortly after t he
a ccident, it w as not rain ing at thetime of t he accident. In addit ion, he te stifi ed thatthere were no other cars in the vi cin ity of t he Bl azer

befo re t he crash. He testif ied that as t he Blazer approached M r. Im’s c ar, he w onde red wh ether it would sto p in ti me and stated t hat he beli eved the Bla zer co uld ha ve stop ped in time. He further testif ied that after he watched the Blazer hit Mr. Im’s car, he heard the Blazer’ s engine “rev ving” before the Bl azer crashed i nto the oncoming
car. He recalled t hat after the accident , he heard the Defendant ask, “ What happened?” and testi fied that the Defendant, who “appeared quite dish eveled,” smelled of be er.

Officer Scott Mitc hell was c alled to the scen e shortly afte r the accid ent. He testif ied that when he appro ached the Defendant, the Defendant i nformed him thathis Blazer had been hit in the rear b y another car, ca using him to “sw erve into the oncoming tr affic an d strike another vehi cle. ” He s tated that the Defendant did not menti on anything at that ti me about strikin g Mr. Im’s car. M it chell testif ied that h e “detected a strong odor of alcohol about

[the Defen dant].” He stated that the Defendant’ s “eyes were bloodshot and re d, his speech was slurred a nd he seemed so mew hat con fused w hen an swering
. . . questions. He was unstable on his fe et also. ” According to Mitchell , the Defendant admitted to having d runk fou r beers b efore the acciden t. He testif ied thathe also checked t he insideof the Defendant ’s vehic le and found “ close to 30" beer cans , some full and s ome em pty.-5- Officer Ronald C. Swanson , a mem ber of the DUI E nforcem ent Un it, administeredfield sobriety tests to the Defendan t at th e scen e of the ac cident. When he arrived , he esco rted the D efe ndant to a level sur face “away f rom the distract ion of the noi se and lights” to admini ster the tests. Swanson obser ved thatthe Defe ndan t could not walk unai ded, that t here was an extr emely “str

ong odor of al cohol” ab out the Defendant , and that t he Defendant’s s peech was slurred and “ mumbli ng.” He conc lude d that th e De fendant “was about as intox icated as anybody [he’d]ever seen .” Swanso n testified t hat wh en h e administer

ed the horizo ntal gaze nystagmus test to the Defendant, the Defenda n t
was initially ab le to follo w his instructions but then “kind of discontinue d and sort of gazed.” The Defendant subsequently

declined to perform the nine-st ep walkand-turn and the one-leg -stand te sts.

Swanson stated that he then se ated the De fendant in the pa trol car, where the Defendant began to make i ncoherent commen ts , and recited to the Defendant his Miranda rights. He recalled that theDefendant made a couple of
comm ents about wantingto see a lawyer. Swanson next transported the Defendant to N ashv il le G ener al H ospital , wh erea sa mp le o f the D efend ant’s blood was drawn at midni ght. Jerr y Gowen, the dir

ector of the clinical laboratory at the ho spital, te stifie d that hospi tal poli cy ordinar ily r equires consent

of the patient for obtaining bl ood samples, except when the patient is under ar rest. Test results revealed t hat at midni ght, the Defendant’s bl ood contained an al cohol conten t of .20 perc ent.

Officer Joe Morton testif ied about damage done to the vehi cles duri ng the acciden t. He stated that he exa mine d the D efend ant’s ve hicle a nd wa s una ble-6-

to find any da mage to its rear or a ny oth er evidence indicat ing that it had been struckfrom behind. He also testif ied that t here were numerous beer cans inside the Blazer a nd a glass bowl containi ng two fullbeer cans, whi ch was positi oned
on the floo rboar d of the driv er’s sid e wit hin reach of the driver. He determi ned thatMr. Im’s vehicle t raveled 158feet aft er the colli sion and that the distance between the area of i mpact and the intersection of 46th Street, the approxim ate locati on where eyewit nesses fir st noticed the speeding B lazer, was 33 1 fee t. H e stated that a driverof a vehiclegoing fort y miles per ho ur, the desi gnated speed limit on Ch arlotte A venue , would have a little ov er five seco nds to re act to another car stopped approxima tely three hundre d feet ahead of his car.

In additio n, Morton test ified t hat he contacted t he Defendant at t he hospital shortly after m idnigh t. He sta ted tha t at that tim e, the D efend ant still sme lle d strong ly of alcohol , his speech was slu rred and disjointed , and his eyes w ere watery. He concluded that “he was u nable to drive, he was impai red.” He stated thatthe Defend ant told him that as he chang ed lanes to pa ss a car, he sa w Mr. Im’s car stopped ahead, but was unabl e to stop hi s own vehicl e in ti me.

The Defendant testif ied at trial. He stated that at 4:00 p.m. on October 25, 1996, he pic ked u p a six-p ack o f beer a fter wo rk and drank it before 5:00 p.m ., when he went to hi s second job. He reported t hat at approx imately 9: 15 p.m., he left his second jo b to meet a fri end, Robert McCart er, who was employed as security for a church on Ch arlotte Avenue. McCarter , whom the Defendant sometimes helped out f ree of charge, was paid to si t insi de his own vehi cle in t he church parking lot during c hurch services to preve nt th eft and van dal ism
. According to the Defendant, he arr iv ed at thechu rch at a pproxi mate ly 9:3 0 p. m.1 No witness to the a ccident saw

the Defendan

t change lan es before

crashing in

to Mr. Im’s car. -7- and opened another can of beer. He stated thatbetween the time he got off wo rk at 9:15 and the t im e he le ft the ch urch, h e dran k ano ther thr ee an d one -half beers. He and Mr. Im, who was al so employed at the churc h, left the church at approxim ately the sa me tim e.

The D efenda nt testified, We were travel ing westbound on Charlott e; I was next to t he center lane on Charlotte Avenue. We got to 4 6th Av enue and th e car in frontof me, whi ch had just le ft the churc h, applied his brake s. I changed l anes be cause I did not see any brake li ghts on the back of Mr. Im’ s car at t hat time. W hen I cha nged la nes his ligh ts came on and I appli ed my brakes and that ’s when I sl id. 1 He claimed that

he was travel ing at a speed of forty m iles per hour befo re applying his brakes and also claimed that t he streetlights in front of the Darkhorse Theatre were n ot work ing. He testified that eve n if he h ad be en so ber, he would have hit Mr. Im’s car. He stated, “ I had no indi cation t hat the gentl eman wa s stopped where he was unti l after I changed lanesand I saw his brake lights being applied then.” I n additi on, he denied tellingOfficer Mitchellat the sc ene of the crime th at he ha d been rear-end ed.

The Defe ndan t main tained that he did no t cons ume any be er insid e his vehicle after leaving the chur ch. He fu rther testified that he fe lt the ef fec ts of alcohol more strongly at the ti me his blo od was drawn after t he accident t han at the time of the acciden t. Finall y, he admitted to having drunk a six- pack of beer almost every day for

six years during t he time between his first and second jobs.-8- Robert McCarter, the Defend ant’ s fr iend , te sti fie d that th e De fen dant arrived at the churc h parking l ot atapproximatel y 9:15 or 9: 20 p.m. on the night of the accident . He testi fied that the Defendant had a can of beer in his hand and thathis breath smelled s trongly o f alcohol . However, he stated that the Defen dant “se emed to have k nowled ge and his spee ch was n’t slurred.”

Donna Jordan, the Defendant’s wi fe, stated th at she saw her husband with
a beer in his h and at approxi mately 9:15 or 9:20 on the ni ght of the a ccident when he stopped by t heir home before he ading to t he church. She te stifi ed that she knew he ha d bee n drink ing be caus e of his dem eano r and th e fact th at his eyes were bloodshot . However, shealso stated, “He was talki ng all ri ght, he was walking fine . . . [and] he didn ’t stagger.”

I. S UFFICI ENCY OF THE EVI DENCE The De fendant fi rst argues t hat the evi dence presented at triali s insuffi cient to

sustain hi s convict ion for vehicular

homicide. He the orizes that if Mr. Im had testified, the jury co uld have determined that Mr. Im contr ibuted to the acciden t. He cont ends th at a “rati onal tri er of fact could have found that the essential element for t he crime was not proven beyond a reasonable doubt due to the lack of

testimony f rom Mr. Im.” He emphasi zes the fact thatthe Defendant did not submi t t o a br

eat h al coho l t est . He a lsopoi ntsout Of ficer Swan son’s notation in his report th at he wa s unab le to asce rtain the D efenda nt’s “ability to operate a m otor vehicle.”

Tennessee Rule of Appell ate Procedure 13( e) prescri bes that “[f] indings of guilt in crimi nal actions whet her by thetrialcourt or j ury shallbe set aside i f the-9-

evidence is insuf

ficien t to support

the findi ng by the t rier of fact beyond a
reaso nable doubt .” Te nn. R. App. P. 13(e). In addit ion, because a con victi on by
a trier of fact dest roys the pr esumption of i nnocence and imposes a presumptio n of guilt, a convi ct ed criminal defendant bears the burden of showing that the evidence was insufficient. McBe e v. State , 372 S.W .2d 173, 176 (Tenn. 196 3);
see also State v. Evans , 838 S.W.2d 1 85, 191 (Tenn. 1992) ( citing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State v . Brown , 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle , 639 S.W .2d 913, 914 (Tenn. 198 2); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review of th e eviden ce, an ap pellate court must af ford the State “the strongest legitim ate view of the e videnc e as w ell as all reasonable and legitimate in fere nces that may be d rawn therefrom .” Tug gle , 639 S.W.2d at 914 (ci ting State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “ reweigh or re-eval uate the evi dence” in t he record bel ow. Ev ans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court find particul ar confli cts in t he trialtestimony, the court must res olve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W.2d at 914.
Based upon our revi ew of the recor d, we co nclud e that th ere wa s clear ly suffic ientevidence i ntroduced at t rial to support thejury’s verdict. The Defendant complains that Mr. Im was not call ed as a witness at trialand contends thatMr. Im’ s testimon y would h ave con vinced juro rs that Mr. Im contribute d to th e acciden t. How ever, th e Def enda nt doe s not s pecify w hat tes timon y Mr. Im could have provided to ensur e this resu lt. We n ote that th e Defend ant could have called Mr. Im as a witness and appar ently chose not to do so. We may not now-10-

hypothesize about w hat testim ony Mr. Im may or m ay not have p rovided. See Tenn . R. App . P. 13(c).

Our vehicular

homicide stat ute, Tennessee Code Annotated § 39-13-213, d efines the crime as “ the reckl ess kill ing of anot her by the oper ation of a n a ut omobile, airplane, m otorboa t, or other m otor vehic le . . . [a]s the pro ximate result of the driver’s int oxicati on as set for

th in § 55-10 -401 . . . .” Ten n. Cod e Ann. § 39-13-21 3(a)(2). Tennessee Code Annotated § 55-10-401 speci fies that
an individual is intoxi ca ted for purposes of our DUI statute if his or her blood alcohol content is “ten-hun dredths of one percent (.10% ) or more.” Id. § 55-10- 401(a)(2 ).
Tests perfor med on a sam ple of the Def endant’ s blood whi ch was drawn appro ximate ly two hours after t he accident r eveal that

the Defendant’ s blood alcohol content was .20 percent, twice the amoun t re quired by statute t o show intoxi cation. The Defendant himse lf admitted to drinking nine an d one-half bee rs on the evening of t he accident, three and one-half of them wit hin less t han an hour before the c rash. Moreover , numerous witnesses an d officers present at t he
scene of the acci dent descri bed the Defendant as inebriated and smelling stro ngly of alcoho l. Thus, it is cle ar that the p roof dem onstrate d that th e Defen dant wa s intoxicate d at the tim e of the ac cident.
Furthermore, wit nesse s to t he acc iden t te sti fie d that th e De fenda nt was speeding; that Mr. Im ’s car stop ped su bstantially a head o f th e Defe ndan t’s
s peeding vehicle; tha t Mr. Im’s ca r was co mplete ly stopped at the ti me of th e crash; thatthere we re no oth er cars o n the roa d to impede theDefendant ’s vi ew;2 In his brief, the Defendant ini tially argues that the

“results of the breath alcohol test should have been excl uded from evidence.” (Emphasis adde d.) H owever, from a reading of his argument as a whole, it seems clear that the Defendant is re fe rring to the blood alcohol test results.
3 The relevant portion o f Article I, Section9 of the Tenne ssee Consti

tution, “the

accused . .
. shall not be compelled to giv e evidence

against himself,” parallels the Fifth Amendment to our United States Cons

titution, w

hich provides, in pertinent part, “[n]o person shall . .
. be compelled in any criminal ca se to be a witness agai nst himself.” Tenn. Const. art. I , § 9; U.S. Const. amend. V.
4 Both Artic

le I, Section VII of the Tennessee C onstitution and the Fourth Amendment to the United States Cons

titution address unreas onable searches and se izures. Ten n. Const. art. I, § 7; U.S. Const. amend. IV. -11- thatthe De fenda nt did not ap ply his brakes unti l the ver y last moment before he hit Mr. Im’s c ar; a nd t hat the Defen dant accelera ted after striking Mr. Im’s ca r, thus propelli ng his own vehi cle into an oncoming car. Cert ainly t his is suf

ficien t evidence from which a rati onal tri er of fact c ould c onclu de tha t the D efend ant’s recklessness was the caus e of the acci dent and that the accident was the proxima te result of h is intoxication . This issu e is withou t merit.

II. BLOOD ALCOHOL TEST The Defendant next

argues that the r

esults of his blood alcoh ol test s hould have been excluded f rom evidence. 2 He challenges t he constit utiona li ty of Tennessee Code Annota ted § 55 -10-406 (e) on the basis tha t it co mpels a defendantto give evi dence against hi mself, i n contravent ion of Arti cle I, Section 9 of our state constitution . T enn. C onst. art. I , § 9. 3 He also contends t hat the statute v iolates

rights pr

otected by Artic le I, Sect ion 7 of our state const ituti on, 4 arguing that “the least obtrusive measure [by] which to compe l a Defen dant to provide a blood alcohol sample is to ascertain a search warrant to ensure that the constit utional safeguards are met and satisf ied.” Tenn. Const. art . I, § 7.-12- In Tennessee, anyone who operates a motor vehicl e on the roads of our state is “deemed to have given consent to a test for the purpose of determining the alcoholic . . . content o f that perso n’s blood . . . .” Tenn. C ode An n. § 55-10- 406(a)(1). If an accuse d is charg ed with drivi ng under the i nfluence and “ refuses to sub mit” to testing, the tests “sha ll not be given.” Id. § 55-10-40 6(a )(3)

. However, when a person is char ged with vehi cular homici de, Tennessee Code Annotated § 55-10-406(e) applies. I t provides: Nothing in this s ection s hall affe ct the a dmis sibility in e videnc e, in criminal prosecuti ons for aggrav ated assault

or homicide by the use of a motor vehicl e only, of any chemical anal ysis of the alcohol ic or drug contentof the defe ndant’s bl ood which has been obtai ned by any me ans law ful without re gard to th e provision s of this sec tion. Id. § 55-10-40 6(e).
In Schm erber v. Califo rnia , 384 U.S. 757 ( 1966), the Uni ted States Supr eme Court emphasized th at the Fif th Amend ment privilege ag ainst selfincrimin ation under our United States Con stitut ion “p rotects an accused only f rom being compelled to testify aga inst himse lf, or otherwis e provide the State with evidence of a test imonial or communicative nature.” Id
. at 761. The Court determined that [t]hev alues pro tected by the F ourth A men dme nt . . . sub stantia lly overlapthose [th at] theFifth Amendmenthelps to protect. H istory and precedent

have requ ired t hat we todayreject t he claim that the Self-I ncriminat io n Clause of the Fifth Amendment requir es the human body in a ll circums tances to be held inviolate ag ainst state expediti ons see kin g ev ide nce of c ri me. B ut i f co mp uls ory administrat ion of a blood test does not implic ate the F ifth Ame ndme nt, it plainly i nvolv es the br oadly co nceived reach o f a search and se izure und er the Fo urth Am endm ent. Id. at 767 . The C ourt co nclud ed tha t blood test evid ence is admissible if the test is pe rformed in a reaso nable m anner a nd there is some indication th at th e5 In his bri ef, the Defendant states, It is clear from the record that the Appellant, Roy A. Jordan, refus ed the breath test and was s ubjected to a blood alc

ohol test.The Appellant, Roy A. Jordan, refused the field sobriety tests. On the 25th day of October, 1996 the Appellant refused t o submit to the b reath alcohol t esting. He makes no other references to the method of procuring his blood sample. -13- evidence sough t will be found

. Id. at 771; see also State v. Greene , 929 S.W.2d 376, 38 0 (Ten n. Crim. A pp. 199 5).

In State v. Cleo Mason , No. 02C01-9310-CC-00233 , 199 6 WL 111200 (Tenn. Crim. App ., Jackson, Ma rch 14, 1996 ), the late Judge Joe B. J ones w rote forthis Court and adopted the Schmerber test, which sets forth four prerequi sites to be met before t he results of a compelled blood-alcohol test are adm issible into evidenc e. The S tate mu st prove b y a prepo nderan ce of the e vidence that: a) The officer

compelling t he extra ction of blood from th e accused has probable cause to believe t hat the accused co mmitted the offense of aggravated assault or vehicular

homicide whil e underthe influences of an intoxic ant o r drug, and there is a clear i ndicati on thateviden ce of th e acc used ’s intoxic ation w ill be fou nd if the blood is taken f rom the accused’s bo dy and tested; b) Exigen t circums tances exist to foreg o the wa rrant requ iremen t; c) The test selec

ted bythe officer

is reasonabl e and competent for determining bl ood-alcohol content; and d) The test is pe rformed in a rea sonable m anner. Id. at *7-8 ( citati ons omitted) (citi ng Schmerber , 384 U.S . at 768-7 2). In Mason , this Court ruledthat on thespecific facts of the case, the use of physica l force to obtain the defe ndant’s b lood wa s objective ly reason able. Mason , 1996 W L 1112000, at *12
. We find the reasonin g and analysi s of Judge Jones to be sound.
Here, althou gh it is som ewha t uncle ar from the De fenda nt’s brief, it does not appearthat the Defendant chall enges the m ethod by whic h his b lood s amp le
was taken, nor does he argue that he refused consent for bl ood tests. 5 Rather,6 The Defendant argues that when the is sue of t he constitutionality of Tennessee Code

Annotated § 55-10-406(e) was raised in State v. Bullington , 702 S.W.2d 580, 5 83 (Tenn. Cri m. App. 1985), this Court “did not specifically add ress the constitutionality other than the general conclusory

opinion” that the statu

te pass es

co ns ti tu ti on almu ster . We

note that in Bullington , this Court relied upon two United States Supreme Court cases in concluding, “The State may compel submission to [b lood alcohol] test ing if the of ficer has reas onable grounds to believe thatthe motorist

is intoxicated.” Id. at 583. In addition, this Court found the st atute to be constitutionalin State v. Terry Fowler, Lake County No. 4, 1985 WL 3545 (Tenn. Cri m. App., Jackson, Nov. 6, 1985). -14- it appears thatthe Defe ndant ra ises a ge neral cha llenge to th e cons titutionality of Tennessee Code Annotated § 55- 10-406(e) 6 and contends that because the statute is unconsti tutional , the State shou ld have procur ed a search warrant before drawi ng a sample of his blood.

Based upon legal anal ysis of t his issue by both the Uni ted StatesSupr eme Court and this Cou rt in previ ous cases, as summarized her ein, we concl ude that Tennessee Code Annotated §55-10- 406(e) is consti tutional . Our case law requiresthatspecifi c procedures must befollowe d in ob taining a bloo d sam ple from a defendant char ged with vehi cular homici de and even all ows the forcible taking of blood i n c ertai n situat ions. We are unpersuaded to overrul e previous holdingsby this Co urt on this iss ue. Bec ause the Defendant poi nts to no evidence in the record that he r efused consent t

o the blood-al coh ol test performed on him the ni ght ofthe ac ciden t or that h is bloo d was drawn in violat ion of the standards set forth in Mason , we con clude tha t the trial c ourt properly d enied the Defen dant’s m otion to su ppress the resu lts of the test.
The jud gmen t of the trial cou rt is accord ingly affirme d.-15- ____________________________________

DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE