1 The appellan t w as charged under alterna tive count

s of drivi

ng under the i

nfluence and dr

iving under t

he influence while having a blood alcohol conce ntration of .10% or m ore. 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 dr

iving under the inf

luence. In this dir

ect appeal, he challenges his conviction based upon (1) erroneous admission of breath alcohol test results which he contends were in

voluntarily

obtained and (2)

the results of the b

reath test were not administered in accordance with the requirements of State v. Sen sing

. As to issue (1), we hold that, absent a motorist’s express refusal, consent to a breath test is deemed voluntar y as a matter of law. With reference to issue (2), the i mproper administration of the breath test, we find this issue waived because it was not included in the appellant’s motion f or new trial. Tenn. R. App. P. 3(e). Accordingly, we

affirm the judgme

nt entered by the t

rial court.

Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE , J., joined and T HOMAS T. W OODALL , J. filed a separate concurring. V. Michael Fox, Nashville, Tennessee, for the appellant, Michael A. Janosky.

Paul G. Summers, Att orney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, Victor S. (Torry) Johnson, III, Dist rict Attorney Ge

neral, 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.
-2- 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 n

o error requiri

ng 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 towardthe appellant and a vehicle driven by the appellant. Officer Gilliland began to follow the vehicle and obse

rved the vehicle

making wide turns.

At a stop light , he pulled alongside the appellant’s vehicle and asked him, “Ha d [ sic] you been drinking?” The appellant looked at the officer, rolled his head, a nd took off. Offic

er Gilliland obser

ved that the appe

llant’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 approachin

g the appellant, O

fficer Gilliland

“could smell

a very extreme odor of an alcoholic beverage about. . . .” He asked the appellant to exit the vehi cle. 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 th

e appellant, Officer Gilliland asked the a

pp ellant to submit to field sobriety tests. Officer Gilliland then administeredthe “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 addedthat “I’ve been

drinking, or I dra

nk two li ters of

beer at Market Street Brewery.” Officer Gilliland then administered the “one-legge

d stand” test. The appellant could not complete this task either. The officer conclu ded that, “[The a

ppellant] wasn’t

just intoxicated or under the influence. He was knee-wa

lking , sloppy drunk. This w asn’t a borderli

ne case. He was , he was complete ly intoxicated.”

At this point, the appe

llant was arrest

ed for driving und

er th e influen ce, 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 Gill iland 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 t estified that he was certified to administer the test by the Tennessee Bureau of Investigation.

The machine used

on this occasion was an Intoxilyze r 1400. This partic

ular unit had been calibr ated 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 Joh nsto n explained t hat the appe

llant was

already under

arrest for DUI and was not goi ng to be released fro m the sce ne regar dless of his c onsent to the breath test.

3 The appellant, in response to questi oning 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 breat h test de pended upon the testing officer's ability to testify as follows:
(1) that the tes

ts were performed in accordance with the s

tandards and

operating proced ure prom ulgated b y the fore nsic services divisi on of the Tenness

ee Bureau of Inve stigat ion; (continu ed...)
-3- Although the appellant had previous ly a greed 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 t

o go straight to

jail, refuse the b

reath test, and be

charged with

Implied Consentand DUI.” 2 The appellant “blurted out that hehad had two shots. . . .” The appellant then consentedto 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, Offi cer Johnston testified that the appellant did not “regurgitate at any time ,” did not “p ut any foreign objects in his mouth,” and did not “consume anything.” Altho ugh he admitted that he did not physically examine the appellant’s mouth, one “can us uall y 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 hav e saw if he ha d something . . .in his mouth.” Officer Johnston then administered the test, the results of which r

evealed that the

appellant had a b

lood alcohol level

of .187 percent. The twenty-three year

old appellant

testified at trial that he was not advised of the Implied Consentwarning by either Officer Johnston or Officer Gilliland. He stated that he was asked if he “wanted to do a B reathalyz er test” by Officer Johnston. The appellant refused. Johnston then informedhim that he could “either take it or . . . go to jail.” The appellant interp reted this as “[h

is] only way out of the [patrol] car at that moment was to take the breath test,

and since [he] was already latefor work, and ha

d to be there, that

I probably should

take the test.” He fur

ther advised the c

ourt, “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 hi s br eath test be suppressedfor 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 and4 (...continued)

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

ary breath t

esting instrument

used was cert

ified by t he forensi

c service s divisi

on, was tested regularly for accurac

y and was working proper ly when the brea

th test was performed;
(4) that the m otorist was observe d for the re quisite 20 minutes pri or to the t

est, and during thi s period, he did not have foreign matter in hi s mouth, did not consume any alcoholic beverage, smoke, or regurgitate;
(5) that he followed t

he prescri

bed operati

onal 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 conclusi on that the issue before the court was the “voluntariness . . . on the Implied Consent.” Based upon the pro

of at the hearing , the trial court ma de the following fi

ndings of fact:

. . .I’v e heard the t estimony from Mr. Janosky and he said that his choice was betweengoing 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 didchoose to

take the test. There is nothing in this that would lead me to think this wasn’t voluntary. He might nothave liked the choices he had, but that doesn’t mean that the police officers did anything to overcome his will, which is thecrucial issue, so motion denied in in

voluntariness.

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 “physica lly insure that Defendant Janosky’s mouth was clear of all foreign material, which may have an effect on the breat h test results”and (2) that the br eath 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 pre serve this issue fo

r 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 bre ath test.

Voluntariness of Mo

torist’s Consent-5-

Where the appellant claims that he has been aggrieved by a potentially unlawful search or seizure, the proper reme

dy is to file a motion to suppress. See D AVID L. R AYBIN , Tennessee Criminal Practice and Procedure § 18.6 (1984). Because the trial court considered

the issue on the merits, we hav e chosen to tr eat 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 reviewin g a denial of a motion to suppress, this court looks to the facts adduced a t th e suppression hearing which are most favorable to the State as the prevailing party. State v. Daniel , 12 S.W.3d 420, 423 (Ten n. 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 f ac tfinding of the suppression hear ing judge with resp

ect toweighing credibility, determining facts, and resolving conflicts in the evidence. Daniel , 12 S.W.3d at 423. I ndeed, these fin

dings will be upheld unless the evidence preponderates otherwise. Id . Furthermore, this court may consider the entire record, including the evidence submitte d both at the suppression hearing and at trial, in evaluating the correctness of the trial court's ruling. State v . H enning , 975 S.W.2d 290, 297 (Tenn.1998). Although deference is given to the trial court’s findings o

f fact, this court conducts its own appraisal of the constitutional questions presented by reviewing the l

aw and applying it t

o the specific fa

cts of the particular case. Id . (citing State v. Yea r gan , 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 o f 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. Cali fornia , 384 U.S. 757, 86 S.Ct. 1826 (1966). The analysis of any warrantl

ess search must be

gin with the proposit

ion 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, 454-5 5, 91 S.Ct. 2022, 2031- 32 (1971); Katzv. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 514 (1967); Statev. Tyler , 59 8 S.W.2d 798, 801 (Tenn.Crim.App.1980). One such exce ption t o the warrant requirement includes exigent circumstances. See generally Schmerber v. Cali fornia , 384 U.S. at 757, 86 S.Ct. at 1826. Exigent circumstances arise when authorities have reason to believe tha t evidence is in danger of being destroye d or removed. See State v. Jennette , 706 S.W.2d 614, 617

(Tenn. 1986) (re

asonable like lihood th at evidence may b e destroyed if of

ficers have to in

terrupt investiga

tion to obtain warrant). Thus, a warrantless test of an individu al’s bodily substances does not violate any constitutional right so long as the search was supported byprobable cause, the evidence was of an evanescent

nature, and the means and procedures emp

loyed in taking the substance were reasonable. See S chmerber v Calif

ornia , 384 U.S. at 770-772, 86 S.Ct. at 1835-1837 (warrantless seizure o f bl ood not prohibited bec

ause evidence m

ay be lost if not imme

diately 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 drink ing stops, a compulsory breath or blood test, taken with or withoutthe consent of the donor, falls within the exigent circumstan ces exception to the warrant requirement. Sc hme rber v. Californi a , 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. C ode An n. § 55-1 0-406 provide s, in pertinen t part:
(a)(1) Any person who drives any motor vehicle i

n the sta te is de emed to have given c onsent to a test f or the purpose of determini

ng the alcohol

ic or drug cont

ent of that person 's blood; provided, that such t est is adminis

tered at the directi

on of a law en forcem ent officer h aving rea sonable ground s to believe such person was drivi ng 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 dr iver 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, advi se the driver t hat 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 havi ng jurisdi

ction of the offens e for which suc h driver was pl

aced under arr

est shal l not have the authorit

y to suspend

the license of a driver who refused to submit t o the test i

f such driver

was not advis ed of the conseq uences o f such a ref usal.

(3) If such person having been placed under arrest and there

after having been requested by a law enforce ment officer to submit to such tes

t and advised of the consequences for refusin g to do so, ref uses to s ubmit, the test s

hall not be given and such person shall be c harge d wi th violating t

his subsecti

on. The determination as t o whether a driver violatedthe provis

ions of this

subsecti on shall be

made at the s ame time and by the same court as

the one dis

posing of the offen se for wh ich such d river was placed u nder arre st. . . .

(4) Any person who violates the provisi ons of this sect

ion by ref

using to s ubm it to the test purs uant to subdivi sion (3) sha ll be char ged by a separat

e warrant or citat

ion that does not inc

lude any charge of violat ing § 55-10-401 that may arise from the same occurrence.

(b) Any pers on who is unconsci ous as a res

ult of an a

ccident or

is unconsci

ous at the

time of arr

est or apprehension

or otherwise in a condit ion rendering that pers on incapable of refusal , shall be subj ect e d to the test as provided for by §§ 55-10-405- -55-10-412, but the resul

ts ther eof shall not be used in ev idence against that person in any court or before any r egulatory body wi

thout the consent

of the person so test

ed. Refusal of rel

ease of the evidence
so obtained will res

ult in the sus

pension of that person' s driver li cense, thus such ref

usal of consent shal

l give s uch person the s ame rights of hearing and det

erminations

as provided f

or conscious

and capable per

sons in t his sect ion.

. . . -6- State v. Nickerson , 973 P.2d 758, 762 (Id aho 1999); Village of Algonquin v. Ford , 495 N.E.2d 595, 596 (Ill. App. 1986).

In addit ion to the exigent circumstances established by the nature of the evidence in cases involving intoxicated motori sts, the statutorily

created implied c

onsent of the motor

ist permitsthe warrantless

search of the motorist’s br

eath or blood. See generally Schneckloth v. Busta monte , 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 deem ed to have consented to an evidentiary test for blood alcohol concentration. 5 Thereby, anyone who exercises theprivilege of operating a motor vehicle in this stat

e 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 dec lare d that consent of all motorists is imp

lied; therefore

, it is unnecessar

y for law enforc

ement officers t

o obtain the voluntary consen

t of an individual mo

torist before ad

ministering a brea

th test for alc

oho l-7-

concentrationlevel. The purpose behind the implied consent law is to facilitate the gathering of evidence against intoxicated drivers. T hus, the Stat e 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. Nev ille , 459 U.S. 553, 103 S.Ct

. 916 (1983); Schmerber v. Cali fornia , 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. Rat her, the S tate of Tennessee, through its enactment of Tenn. Code Ann. §55-10-406(a)(2) and (a)(3 ), has adopted a policy po sition prohibiting law enforcement officers from administering a breath or blood alcohol test against the motorist’s will. Instead, in an effort to avoid potent ia lly violent confro ntations between

private citizens

and law enforce

ment officers, the state has elected to permit the motorist to refuse the test. See South Dakota v. Nev ille , 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.2 d at 160

. The right to refus e is not absolute; ra

ther, the right to refuse will result in suspension of the motorist’s driver’s operator’s lice nse, assuming appr

opriate 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, 17-1 9, 99 S.Ct. 2612, 2620-21 (1979). By striking this balanc

e, the statute motiv

ates drivers to ta

ke the test, bu t does so without r

esorting t o 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 inferenc e that the breath test was likely to reveal evidence of the offense. The appellant presented no evidence of his express refu

sal to submit

to the breath test. He si

mply asserts that hi

s submission to the tes

t 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 o

nly time “the test sh

all 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 adve

rse test result, c

hallenge the intr

oduction of th

e BAC test r

esults in the prosecution of the DUI charg e as well as prec

lu d ing 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 resu lts of breath alco

hol tests nor a motor

ist’s refusal to su

bmit 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 phy sical evidence and are not afforded the procedural protections encompassed by the Miranda warnings. See Schmerber v. Cali fornia , 384 U.S. at 757, 86 S.Ct. at 182 6; 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 bre ath-8-

or blood sample is no ntestimonial in natu re and the Fifth Ame

ndment right again

st self-incrimin

atio n 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 (Te x. Ct. App. 1992). Thus, the appellant’s argument that he had a constitutional right not to incriminate h

imself by submitting to the br

eath test is without m

erit.

Conclusion

After review of the issu

e presently befo

re this court, we c

onclude that t

he express consent of the motorist is not a

prerequisite fo

r the admission of a

breath alcohol te

st 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 Statev. Blackwood , 713 S.W.2d 677, 680 ( Tenn. Crim. App. 198 6) (valid consent necessary for

blood test). Rather, it is the motorist’s express re fusal, pro vided by legislature largesse, and not the voluntariness

of the individual motorist’s submission to the tes t, as r equired by the Four th Amendm e nt, which governs the inadmissibility of the test results. Under the facts of the present case, we conclude that

the appellant did n

ot refuse the bre

athtest and, theref

ore, the breath t

est was lawfully obtained. For the foregoing reasons, the judgment of conviction is affirmed.

___________________________________ DAVID G. HAYES, JUDGE