# FILED
September 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellant, ) C.C.A. No. 01C01-9707-CR- 0 025 3 ) vs. ) Putnam County ) JERRY HUSKINS, ) Hon. John Turnbull, Judge ) Appellee. ) (DUI - Interlocutory State Appeal)

FOR THE APPE LLANT: FOR THE APPELLEE: JOHN KNOX WALKUP DON DICKERSON Attorney General & Repor ter Attorney at Law

310-D E. Broad St. ELIZABETH B . MARNEY Cookeville, TN 38501 Assistant Attorney Gener al 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 WILLIAM EDWA

RD GIBSON District Attorney General TON EY CR AIGH EAD Asst. District Attor

ney General 145 S. Jefferson Ave. Cookeville, TN 38501

OPINION FILED:________________ REVERSED AND

REMANDED CURWOOD WITT, JUDGE1 Tenn. R. App. P. 9. 2 OPINION We granted the state's petiti on for an interlocutory appea l 1 in this prosecution for driving u nder the influence to review the Putnam County Criminal Court's order suppressing the results of the defendant's blood al cohol test. The trial court suppressed the evi dence because the law enforcement officer who ordered the test failed to warn the defenda nt as req uired 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 li cense. For the reasons that follow , we find thetrial court's ruling in error. Accordingly, we re vers e the order suppressing the evidence and
re ma nd this matter to the trial court for further proceedings consistent with this opinion.

Law

enforcement officers discovered the defendant atthe scen e of a one-car wreck. The defendant w as transported by emergency medical personnel to a local hospital for treatment of his inj uries. 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 cons equence of refusing the procedure. After the sample was drawn, the defendant was arr ested for the crime of drivi ng under the influence.

I The primary issue for the co urt is wh ether the trial court correctly suppressed the blood alcohol test resul ts based upon theofficer's failure to give the license suspension admonition.

As pertinent to this appeal, Tennessee's implied consent law pr ovides2 This subsection was amended i n 1996 to provide for a tw elve-month suspension. 3 (a)(1) Any perso n who drive s 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 administ ered at the direction of a law enforcementofficer having reasonable grounds to believe such person was driving w

hile under

the influence of an intoxicant or drug, as defined in § 55-10-405. Any physi cian, registered nurs e, licensed practical nurse, clinical laboratory technician, licensed paramedic or, notwithstandi ng any other provisi on of law to the contrary , licensed e mergencymedical technician approved to establish intraven ou s catheters, or technologist, or certified and/or nationally regi stered phlebotomist who, acting at the written request of a law enforcement officer, withdraw

s blood from a

person for the purpose of making such a test , shall not incur any c ivil or criminal

liability as a res ult o f th e withdrawing

of such blood, except for any damages that may result from the negligence of the person so withdraw ing. Neither shall the hospital nor other employer of the previously li sted health care professionals incur, except for negl igence, any civil or criminal liabili

ty as a result of the act of withd rawing blood from the pers on. (2) Any law

enfor cement of

ficer w ho requ ests tha

t the dri ver 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 wi ll resul t in the suspension of the driv er's operator's licens

e by the court. The co urt 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 tes t if such driver was not advised of the consequences of such a refusal. (3) If such person having been plac ed under arrest and thereafter having been requested by a law enforcement officer to submit to such test and advised of theconsequencesfor refusing to do so, refuses to submit, the test shall not be given and such person shall be charge d with v iolating this subsecti on. The determination as to whether a driver violat

ed the provisions of this s ubsection s hall 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 arre st. If the court finds that the driver v iolated the provision s o f this subsection, the driver shall not be co nsidere d as having committed a cr iminal 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 unconsciousat the time of arrest or apprehens ion or otherwi se in a condition renderi ng that person i ncapabl e of r efusal, 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 ag ainst that person in any court or before any regulatory body w

ithout 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 such4 refusal of consent shall giv e such person thesame rights of hearing and determinations as provi ded for conscious and c apable 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 veh icle only, of any c hemical analysis of the alc oholic or drug con tent of t he defendant's blood which has been obtained by any means lawful without regard to the provi sions of this section. Tenn. Code Ann. § 55-10-406(a)(1) , (a)(2), (a)(3), (b), (e) (Supp. 1995) (amended 1996).

The state argu es that the st atutory sc

heme does not contemplate suppression of lawfully obtained evidence if a driver consents to the blood alcohol tes t, ev en absent the license suspension admonition. Furthe r, the state claims, logicdictates that the statute be interpreted to allow consensual submission to blood alcohol testing without recitation of the consequen ces of failing to submit. On the other hand, the defendant argues that the proper remedy is suppression because the statute speaks in clear, un equivocal terms tha t the off icer "sha ll" give the license suspension warning "p rior to" t he test. Further, accordi ng 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 aggrav

ated
ass ault or h omicide by use of a motor veh icle. The defendant finds the omission of the crime of DUI from subsection 55-10-406(e) to be telling of the l egislature's intentthat test results

obtained without the admoniti on be suppressed in DUI cases.

Our review of

the statute and relevant cas elaw leads us

to agree with the state. The clear purpose of the admonition requirement is to warn drivers of the consequencesof 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 to5

suspension. The warning puts him on notice of that consequence. After mandating the admonition regar ding a refusal to be test ed, the s tatute in the next sentence states the result of the refusal:“The court . . . shall not have the authority to susp end the license of a driver who refused to submit to the test if

suc h 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 com pelled to give evidence against himself.As we have previously observed, an officer's req uest 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 Sta te v. Frasier , 914 S.W.2d 467, 471 n.4 (Tenn. 1996) ( Miranda warnings not req uired in conjunction with request that driver take a bloo d alcohol test because test i s not considered to be an interrogation)(Reid, J., dissent ing) ; Sta te 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 di d not even rise to the l evel of a Miranda -type warning; a fortiori, the defendant's test results are not subject t o suppre ssion sim ply b ecau se the admonition was not g iven. See Snapp , 696 S.W.2d at 371.

This result is indirectly supp orted by our reasoning

in State v. Dennie Ray Loden , No. 03C01-9311-CR-00380 (Tenn. Cri m. App. , Knoxville, Jan. 19, 1995), perm. app. denied (Tenn. 1995). In that case, the defenda nt argued that evidence of his refusal to take a blood alc ohol tes t was subject to suppres sion because the officer h a d not fully complied with the requirement that the license suspension admonition be given. Dennie Ray Loden , slip op. at 5. We declined to3 Stowers actually addresse d the purpose o f section 55-1 0-410, althou gh

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 55-10-40 6(a)(1) contain vir

tually identical li sts of medical personnel from which the per son 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-n egligent civil and criminal liability

in the performance of their duties attendant to taking the sample, while subsectio n 55-10-410(a) mandates that the s ample "shall" be drawn by an indiv

idual in one of the enumerated categor ies. Given the simil arity of the two statutes, we bel ieve Gilbert is compelling authorit y for the purpose of subsection 55-10-406(a)(1) , notwithstanding its reliance upon Stowers

. 6 hold that the admissibility of the defendant's ref usal to take the test hinged on the officer's complian ce wi th t he warning requirement of subsection 55-10-406(a)(2). We see no reason why a different rule should apply when the ev idence in question consists of test results, r ather than a refusal to take the tes t.
Further, this holding is supported by analogy to State v. Gilbert , 751 S.W.2d 454 (Tenn. Cr

im. App. 1988). In Gilbert , the defendant argued that the trial court erroneously admitted ev idence of his blood alcohol content because the state failed to prove that his blood sa mple wa s drawn in accord w ith subsection 55-10- 406(a)(1). Gilbert , 751 S.W .2d at 461. In re jecting this argu ment, a panel of this court observe d t hat the purpose of subsection 55-10- 406(a)(1) is to "protect the don or [defendant] from being subjected to un healthful conditions in the pro curemen t of a blood sample and to prohibit the donor [defendant] fr om 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 a d mission of his blood alcohol te st results in a prosecution involving all eged drinking and driv ing. The Gilbert panel held that the state was not required to prove compliance with the statute as a prerequis ite to admissib ility. Gilbert , 751 S.W.2d at 461; cf. State v. Melvin L.Gipson , No. 86-66-III (Tenn. Crim. App., Nashville, August 19, 1986).4 Section 55-10-406 provides greater individual

protection than the United States and Tennessee Constitutions with respect to the v

oluntariness of blood alcohol sampling. Cleo Mason , slip op. at 12 (citations omitted). The net effe ct of subsection (e) is to str ip defendants in cases of aggrav ated assault and homicide by use of a motor ve hicle of the statute's great er protections, leavi ng them with only the les

ser constitutional protec tions. See generally Cleo Mason , slip op. at 10-22. 7

The situation at bar is analogous to Gilbert . As we observed abov e, the clear import of subsection 55-10-406(a)(2 ) is to protect a driver from license
s uspensi on if he was not admonished about license suspension. Just as Gilbert found that subsection 55-10-406(a)(1) protects th e defendant from ancillary harm,
s o does subsection 55-10-406(a) (2). The latter section is designed to adv ise th e defendant of the detriment tha t results from re fusing a blood test in connection w ith DUI or other drinking-and-driving crimes. Thus, the statute's purpose is not to carve out a rule of exclusion w hen the provisions of subsection (a) (2) have not been followed. As applied tothe facts of the case at bar, the officer's non-c ompliance with the license suspension war ning requirement does not w arrant su ppression of the defendant's blood alcohol test results at trial.

In reaching this result , we have rejected the defendant' s argumen t that subsection 55-10-406(e) silently mandates suppress ion of test results in a case such as the one at bar. We interpret subse ction 55 -10-406(e) as addressing the admissibility

of otherwise lawfully

obtained test results w here the s ample was not voluntarilytaken, i.e. when the defendant refuses to submit voluntarily

to testing or when the defendantis unconscious or otherw ise incapable of rendering c onsent at the time the sa mple is drawn. 4 See, e.g. , State v. Cleo Mason , No. 02C01-9310- CC-00233, slip op. at 11-22 (Tenn. Cr im. App., Jackson, Mar. 13, 1996) ( Wade, J., concurring in results only); State v. TerryE. Colorigh , No. 01C01-9112-CR-00380, slip op. at 4-5 (

Tenn. Crim. App., Nashville, Oct . 22, 1992). Nothing in th e statute, the developed caselaw of this state, or the defend ant's bri ef cause s us to bel ieve5 This statement does not appear in the transcript of that hearing that has

been provided to this cour t in the record.

8 that the legislature intended for subsection (e) to operate asa bar to admissibility if the admonition contemplated by s ubsection (a)(2) is not given.

Accordin gly, 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 rig ht to appeal by failing to comply with an al legedly agreed upon abbreviated time for filing an applicati on for interlocutory appeal . Apparently, the assistant district attorney

announced at the conclusion of the supp ression 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 t en days from the date of the hearing in which to decide whether to purs ue appellate relief. The state initiated its application within th e 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 autho rity t o shorten the time period for the s tate's Rule 9 application. " The supreme court has the power to pr escribe by general r

ules the forms of process, writs, pl eadings and motions, andthe practice and procedure in all of the courtsof this state in all civ il 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 bythe supreme court." Tenn. Cod e Ann. § 16-3-407 (1994). The trial court's9

inclusion of a ten-day period for seeking a Rule 9 appeal i s in direct conflict w ith the supremecourt's edict of a 30-day limitation peri od in Rule 9(b). Accord ingly, the tria l court was without authority to alter the time period, and the state cannot b e bound by a ruling the tri al 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 whe re 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 s o long as there is no conflict with rul es of the supr eme court). The de fendant is n ot entitled to relief based upon th e state's failure to comply with an inv

alid time limitation.

The trial court's order suppressing the defendant's bloo d alcohol test resultsis reversed. This c ase is remanded to the trial court for further proceedings.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:

_____________________________ JOE G. RILEY, JUDGE

_____________________________ R. LEE MOORE, JR., SPEC IAL JUDGE