1

The appellan t was charged under alternative counts of driving under the influence and driving under the

influence while having a blood alcohol conce ntration of .10% or more. The jury foun d the app ellant guilty o f both

(continued...)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 2000 Session

STATE OF TENNESSEE v. MICHAEL A. JANOSKY

Direct Appeal from the Criminal Court for Davidson County

No. 99-T-119, Cheryl Blackburn, Judge

No. M1999-02574-CCA-R3-CD - Filed September 29, 2000

Michael Janosky appeals from his conviction of driving under the influence. In this direct appeal,

he challenges his conviction based upon (1) erroneous admission of breath alcohol test results which

he contends were involuntarily obtained and (2) the results of the breath test were not administered

in accordance with the requirements of State v. Sensing. As to issue (1), we hold that, absent a

motorist’s express refusal, consent to a breath test is deemed voluntary as a matter of law. With

reference to issue (2), the improper administration of the breath test, we find this issue waived

because it was not included in the appellant’s motion for new trial. Tenn. R. App. P. 3(e).

Accordingly, we affirm the judgment entered by the trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court is affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., joined

and THOMAS T. WOODALL, J. filed a separate concurring.

V. Michael Fox, Nashville, Tennessee, for the appellant, Michael A. Janosky.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E.

Clements, Jr., Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General,

and Sean K. Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The appellant, Michael A. Janosky, was found guilty by a Davidson County jury of driving

under the influence, first offense.1 The trial court imposed a sentence of eleven months twenty nine
(...continued)

offenses and the trial court properly m erged the con victions.

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days, with all of the sentence suspended except for ten days. In this appeal as of right, the appellant

asserts that the results of his breath tests should have been suppressed.

After review, we find no error requiring reversal. The judgment of the trial court is affirmed.

Background

At approximately 11:00 pm, on June 6, 1998, Metro Police Officer Clinton Gilliland, after

entering a gas station, received a complaint of an intoxicated driver. He related that his attention was

directed toward the appellant and a vehicle driven by the appellant. Officer Gilliland began to follow

the vehicle and observed the vehicle making wide turns. At a stop light, he pulled alongside the

appellant’s vehicle and asked him, “Had [sic] you been drinking?” The appellant looked at the

officer, rolled his head, and took off. Officer Gilliland observed that the appellant’s motor skills

“appeared somewhat concentrated, not very alert, so to speak. He appeared to be intoxicated . . . .”

At this point, Officer Gilliland activated his blue lights and “pulled [the appellant] over.”

 Upon approaching the appellant, Officer Gilliland “could smell a very extreme odor of an

alcoholic beverage about. . . .” He asked the appellant to exit the vehicle. As the appellant was

getting out of his car, Officer Gilliland noticed that the appellant “used his right foot to overstep his

left as if he had to support himself from falling.” The appellant’s “eyes were very watery and blood

shot” and his speech was “unusually slurred.” Based upon his physical observations of the appellant,

Officer Gilliland asked the appellant to submit to field sobriety tests. Officer Gilliland then

administered the “walk and turn” test which the appellant failed to successfully complete. During

the test, the appellant admitted that he could not complete the test because his balance was poor, he

added that “I’ve been drinking, or I drank two liters of beer at Market Street Brewery.” Officer

Gilliland then administered the “one-legged stand” test. The appellant could not complete this task

either. The officer concluded that, “[The appellant] wasn’t just intoxicated or under the influence.

He was knee-walking, sloppy drunk. This wasn’t a borderline case. He was, he was completely

intoxicated.” 

At this point, the appellant was arrested for driving under the influence, handcuffed, and

placed in the back of the cruiser. Officer Gilliland read the appellant the Implied Consent Law. The

appellant agreed to submit to the breath test. Officer Gilliland then called dispatch requesting an

alcohol testing operator at the scene. Officer Jeb Johnston, the alcohol testing operator on duty,

responded. Officer Johnston is assigned to the DUI Enforcement unit. He testified that he was

certified to administer the test by the Tennessee Bureau of Investigation. The machine used on this

occasion was an Intoxilyzer 1400. This particular unit had been calibrated by the TBI on May 8,

1998, and had been checked by Metro officers on June 6, prior to Officer Johnston’s shift. 
2

Officer Johnston explained that the appellant was already under arrest for DUI and was not going to be

released fro m the sce ne regar dless of his c onsent to the breath test.

3

The appellant, in response to questioning by the court, p rovided that he had a bachelo r’s degree in electron ic

engineering a nd that he wa s employed at Service Merc handise in com puter operation s.

4

In Sensing, 843 S.W.2d at 416, our sup reme co urt ruled th at the adm issibility of a breath test depended upon

the testing officer's ability to testify as follows:

(1) that the tests were performed in accordance with the standards and operating proced ure prom ulgated b y the fore nsic

services division of the Tennessee Bureau of Investigation;

(continu ed...)

-3-

Although the appellant had previously agreed to take the breathalyzer test, before Officer

Johnson began the actual test, the appellant was asked again if he would submit to the test. The

appellant refused the test. Officer Johnston explained that he asked the appellant if he understood

the implied consent law and the appellant did not indicate that he did not. Johnston then advised the

appellant that “if he wants to go straight to jail, refuse the breath test, and be charged with Implied

Consent and DUI.”2 The appellant “blurted out that he had had two shots. . . .” The appellant then

consented to the test. The appellant was placed in the rear seat of Johnston’s patrol car and Officer

Johnston, seated in the front seat, observed the appellant for the required twenty minute period.

During the observation period, Officer Johnston testified that the appellant did not “regurgitate at

any time,” did not “put any foreign objects in his mouth,” and did not “consume anything.”

Although he admitted that he did not physically examine the appellant’s mouth, one “can usually

tell when somebody has some candy or gum in their mouth. They are usually chewing or sucking

on it.” Additionally, Officer Johnston related that the appellant was “very talkative, so [he] would

have saw if he had something . . .in his mouth.” Officer Johnston then administered the test, the

results of which revealed that the appellant had a blood alcohol level of .187 percent.

The twenty-three year old appellant testified at trial that he was not advised of the Implied

Consent warning by either Officer Johnston or Officer Gilliland. He stated that he was asked if he

“wanted to do a Breathalyzer test” by Officer Johnston. The appellant refused. Johnston then

informed him that he could “either take it or . . . go to jail.” The appellant interpreted this as “[his]

only way out of the [patrol] car at that moment was to take the breath test, and since [he] was already

late for work, and had to be there, that I probably should take the test.” He further advised the court,

“It was losing my job or going to jail, you know, in the context of going to jail.”3

Based upon this evidence, the appellant was convicted of driving under the influence.

Analysis

Prior to trial, the appellant filed a motion in limine to have the results of his breath test be

suppressed for failure to comply with the technical requirements of State v. Sensing, 843 S.W.2d 412

(Tenn. 1992).4

 A hearing on the motion was held on September 13, 1998. Officer Johnston and
4

(...continued)

(2) that he was pro perly certified in accord ance with those standards;

(3) that the evidentiary breath testing instrument used was certified by the forensic services division, was tested regularly

for accuracy and was working properly when the breath test was performed;

(4) that the motorist was observe d for the re quisite 20 minutes prior to the test, and during this period, he did not have

foreign matter in his mouth, did not consume any alcoholic beverage, smoke, or regurgitate;

(5) that he followed the prescribed operational procedure; and

(6) that the p rintout reco rd offered in eviden ce was th e result of the test given to the perso n tested. 

The trial court has the du ty to determ ine whe ther by a p repond erance o f the evide nce the S tate has estab lished the six

prerequ isites for adm issibility. State v. Edison, 9 S.W.3 d 75, 76 (Tenn .1999). 

-4-

the appellant provided relevant testimony. At the conclusion of the proof, defense counsel assented

to the trial court’s conclusion that the issue before the court was the “voluntariness . . . on the

Implied Consent.”

Based upon the proof at the hearing, the trial court made the following findings of fact:

. . .I’ve heard the testimony from Mr. Janosky and he said that his choice was

between going to jail and taking the test because he didn’t want to lose his job;

however, the facts are pretty clear. Mr. Janosky was already in custody. He is [a]

man who is 23 years old, has a BA degree, on his way to work, I might add, and he

did choose to take the test. There is nothing in this that would lead me to think this

wasn’t voluntary. He might not have liked the choices he had, but that doesn’t mean

that the police officers did anything to overcome his will, which is the crucial issue,

so motion denied in involuntariness.

The appellant contests the ruling of the trial court arguing (1) that the State failed to satisfy

the requirements of State v. Sensing in that the officer failed to “physically insure that Defendant

Janosky’s mouth was clear of all foreign material, which may have an effect on the breath test

results” and (2) that the breath test was procured involuntarily. Initially, we note that the appellant

has waived any challenge to the Sensing requirements. Although such challenge was made in the

appellant’s motion in limine, the appellant failed to present the issue to the trial court at the hearing

on the motion, see Tenn. R. App. P. 36(a), and failed to preserve this issue for appellate review by

neglecting to raise this issue in his motion for new trial. Tenn. R. App. P. 3(e). Accordingly, our

review is limited to the voluntariness of the appellant’s consent to the breath test.

Voluntariness of Motorist’s Consent
-5-

Where the appellant claims that he has been aggrieved by a potentially unlawful search or

seizure, the proper remedy is to file a motion to suppress. See DAVID L. RAYBIN, Tennessee

Criminal Practice and Procedure § 18.6 (1984). Because the trial court considered the issue on the

merits, we have chosen to treat the pretrial hearing as if the appellant had utilized the proper

procedure. See State v. Johnson, 673 S.W.2d 877, 883 (Tenn. Crim. App. 1984).

In reviewing a denial of a motion to suppress, this court looks to the facts adduced at the

suppression hearing which are most favorable to the State as the prevailing party. State v. Daniel,

12 S.W.3d 420, 423 (Tenn. 2000) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). In

considering the evidence presented at the hearing, this court extends great deference to the factfinding of the suppression hearing judge with respect to weighing credibility, determining facts, and

resolving conflicts in the evidence. Daniel, 12 S.W.3d at 423. Indeed, these findings will be upheld

unless the evidence preponderates otherwise. Id. Furthermore, this court may consider the entire

record, including the evidence submitted both at the suppression hearing and at trial, in evaluating

the correctness of the trial court's ruling. State v. Henning, 975 S.W.2d 290, 297 (Tenn.1998).

Although deference is given to the trial court’s findings of fact, this court conducts its own appraisal

of the constitutional questions presented by reviewing the law and applying it to the specific facts

of the particular case. Id. (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997); Beare v.

Tennessee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)).

The administration of a breath test for the detection of a person’s blood alcohol level is a

seizure of the person and a search for evidence within the purview of the Fourth Amendment of the

United States Constitution. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966). The

analysis of any warrantless search must begin with the proposition that such searches are per se

unreasonable under the Fourth Amendment to the United States Constitution and Article I, Section

7 of the Tennessee Constitution, subject only to a few well-delineated exceptions. See Coolidge

v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32 (1971); Katz v. United States, 389

U.S. 347, 357, 88 S.Ct. 507, 514 (1967); State v. Tyler, 598 S.W.2d 798, 801

(Tenn.Crim.App.1980). One such exception to the warrant requirement includes exigent

circumstances. See generally Schmerber v. California, 384 U.S. at 757, 86 S.Ct. at 1826. Exigent

circumstances arise when authorities have reason to believe that evidence is in danger of being

destroyed or removed. See State v. Jennette, 706 S.W.2d 614, 617 (Tenn. 1986) (reasonable

likelihood that evidence may be destroyed if officers have to interrupt investigation to obtain

warrant). Thus, a warrantless test of an individual’s bodily substances does not violate any

constitutional right so long as the search was supported by probable cause, the evidence was of an

evanescent nature, and the means and procedures employed in taking the substance were reasonable.

See Schmerber v California, 384 U.S. at 770-772, 86 S.Ct. at 1835-1837 (warrantless seizure of

blood not prohibited because evidence may be lost if not immediately seized); see also People v.

Ayres, 591 N.E.2d 931 (Ill. App. 1992). Based upon the fact that evidence of blood alcohol content

begins to diminish shortly after drinking stops, a compulsory breath or blood test, taken with or

without the consent of the donor, falls within the exigent circumstances exception to the warrant

requirement. Schmerber v. California, 384 U.S. at 770, 86 S.Ct. at 1836; see generally State v.

Krantz, 848 P.2d 296, 299 (Ariz. App. 1993); State v. Taylor, 531 A.2d 157, 160 (Conn. App. 1987);
5

Tenn. Code An n. § 55-1 0-406 provide s, in pertinen t part:

(a)(1) Any person who drives any motor vehicle in the 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 en forcem ent officer h aving rea sonable ground s to believe such person was driving while under

the influen ce of an in toxicant o r drug, as d efined in § 55-10- 405. . .

(2) Any law enforcement officer w ho requ ests that the driver of a m otor veh icle submit to a test pursua nt to

this section for the purp ose of de terminin g the alco holic or d rug con tent of the d river's bloo d shall, prior to conducting

such test, advise the driver that refusal to submit to such test w ill result in the suspension of the d river'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

conseq uences o f such a ref usal.

(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 refusin g 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 offen se for wh ich such d river was placed u nder arre st. . . .

(4) Any person who violates the provisions of this section by refusing to submit to the test purs uant to

subdivision (3) shall be charged by a separate warrant or citation that does not include any charge of violating §

55-10-401 that may arise from the same occurrence.

(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 ev idence 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 license, thus such refusal of consent shall give such

person the same rights of hearing and determinations as provided for conscious and capable persons in this section.

. . .

-6-

State v. Nickerson, 973 P.2d 758, 762 (Idaho 1999); Village of Algonquin v. Ford, 495 N.E.2d 595,

596 (Ill. App. 1986). 

In addition to the exigent circumstances established by the nature of the evidence in cases

involving intoxicated motorists, the statutorily created implied consent of the motorist permits the

warrantless search of the motorist’s breath or blood. See generally Schneckloth v. Bustamonte, 412

U.S. 218, 219, 93 S.Ct. 2041, 2043 (1973) (voluntary consent exception to warrant requirement).

Under the express provisions of Tenn. Code Ann. § 55-10-406 (1998), any person who operates a

motor vehicle on Tennessee’s highways is statutorily deemed to have consented to an evidentiary

test for blood alcohol concentration.5 Thereby, anyone who exercises the privilege of operating a

motor vehicle in this state has consented in advance to submit to a breath alcohol test. Indeed, by

virtue of the provisions of Tenn. Code Ann. §55-10-406 (a)(1), our legislature has declared that

consent of all motorists is implied; therefore, it is unnecessary for law enforcement officers to obtain

the voluntary consent of an individual motorist before administering a breath test for alcohol
-7-

concentration level. The purpose behind the implied consent law is to facilitate the gathering of

evidence against intoxicated drivers. Thus, the State may compel submission to the testing if the

officer has reasonable grounds to believe that the motorist is intoxicated. State v. Bullington, 702

S.W.2d 580, 583 (Tenn. Crim. App. 1985) (citing South Dakota v. Neville, 459 U.S. 553, 103 S.Ct.

916 (1983); Schmerber v. California, 384 U.S. at 757, 86 S.Ct. at 1826).

A motorist’s right to refuse to submit to a breath test under Tennessee’s implied consent law

is not a constitutional right. Rather, the State of Tennessee, through its enactment of Tenn. Code

Ann. §55-10-406(a)(2) and (a)(3), has adopted a policy position prohibiting law enforcement officers

from administering a breath or blood alcohol test against the motorist’s will. Instead, in an effort

to avoid potentially violent confrontations between private citizens and law enforcement officers,

the state has elected to permit the motorist to refuse the test. See South Dakota v. Neville, 459 U.S.

at 559-560, 103 S.Ct. at 920. See, e.g., Krantz, 848 P.2d at 299; Bush v. Bright, 264 Cal. App. 2d

788, 789 (1968); Taylor, 531 A.2d at 160. The right to refuse is not absolute; rather, the right to

refuse will result in suspension of the motorist’s driver’s operator’s license, assuming appropriate

procedural protections are provided. See Tenn. Code Ann. § 55-10-406(b). See also South Dakota

v. Neville, 459 U.S. at 560, 103 S.Ct. at 920; Mackey v. Montrym, 443 U.S. 1, 17-19, 99 S.Ct.

2612, 2620-21 (1979). By striking this balance, the statute motivates drivers to take the test, but

does so without resorting to physical compulsion. See State v. Hitchens, 294 N.W.2d 686, 688

(Iowa 1980). 

 

In the present case, the appellant, by choosing to engage in a regulated activity, that of

driving a motor vehicle, subjected himself to the provisions of Tenn. Code Ann. § 55-10-406. The

appellant was lawfully arrested for driving under the influence. His driving behavior, his demeanor,

and his failure to complete the field sobriety tests formed the factual bases for the officer’s inference

that the breath test was likely to reveal evidence of the offense. The appellant presented no evidence

of his express refusal to submit to the breath test. He simply asserts that his submission to the test

was involuntary. The argument that consent to a breath alcohol test was involuntary or coerced is

misplaced. Consent is unnecessary as consent has already been obtained by the act of driving the

motor vehicle. Our law is clear that the only time “the test shall not be given” is when the motorist

“refuses to submit” to the test. To hold otherwise would permit a motorist to submit to the test and,

after obtaining an adverse test result, challenge the introduction of the BAC test results in the

prosecution of the DUI charge as well as precluding citation of the defendant for non-compliance

with the implied consent law. The Implied Consent Law permits introduction of either the BAC

results or the suspension of the motorist’s driver’s license. See generally Tenn. Code Ann. § 55-10-

406. The appellant in the present case seeks to avoid both consequences. Under our implied consent

law, he cannot do so.

Additionally, neither the results of breath alcohol tests nor a motorist’s refusal to submit to

the test are protected by the Fifth Amendment. See State v. Frasier, 914 S.W.2d 467, 471-72 (Tenn.

1996). The results of breath alcohol tests constitute physical evidence and are not afforded the

procedural protections encompassed by the Miranda warnings. See Schmerber v. California, 384

U.S. at 757, 86 S.Ct. at 1826; see also Frasier, 914 S.W.2d at 471; State v. Huskins, 989 S.W.2d 735,

737 (Tenn. Crim. App. 1998), perm. to appeal denied, (Tenn. 1999). Indeed, the giving of a breath
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or blood sample is nontestimonial in nature and the Fifth Amendment right against self-incrimination

is not implicated Schmerber, at 757, 86 S.Ct. at 1826; see also State v. Lord, 513 S.E.2d 25, 26

(Ga. App. 1999); Ford, 495 N.E.2d at 596; Ewerokeh v. State, 835 S.W.2d 796, 797 (Tex. Ct. App.

1992). Thus, the appellant’s argument that he had a constitutional right not to incriminate himself

by submitting to the breath test is without merit.

Conclusion

After review of the issue presently before this court, we conclude that the express consent

of the motorist is not a prerequisite for the admission of a breath alcohol test into evidence in a DUI

prosecution. Explicitly, we hold 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 upon the highways of this state. Cf. King v. State, 598

S.W.2d 834, 835 (Tenn. Crim. App. 1980) (statute gives rise to implied consent). But see State v.

Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986) (valid consent necessary for blood test).

Rather, it is the motorist’s express refusal, provided by legislature largesse, and not the

voluntariness of the individual motorist’s submission to the test, as required by the Fourth

Amendment, which governs the inadmissibility of the test results. Under the facts of the present

case, we conclude that the appellant did not refuse the breath test and, therefore, the breath test was

lawfully obtained.

For the foregoing reasons, the judgment of conviction is affirmed.

___________________________________ 

DAVID G. HAYES, JUDGE