# FILED
September 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1998 SESSION

STATE OF TENNESSEE, * No. 01C01-9705-CC-00175

Appellant, * Williamson County
vs. * Hon. Henry Denmar k Bell, Judge LONNY D. HAZELWOOD, * (Rule 9, Interlocutory Appeal)

Appellee. *

For Appellee : For Appellant : Edward P. S ilva John Knox Walkup P.O. Box 664 Attorney General & Repor ter Franklin, TN 37065 Lisa A. Naylor Roger Reid Street, Jr. Assistant Attorney Gener al 339 Main Street 425 Fifth Avenue North Franklin, TN 37064 Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0493 Derek K. Smith Assistant District A

ttorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED:___________________________
AFFIRMED AND REMAN DED GARY R. WADE, PRESIDING JUDGE2 OPINION On July 8, 1996, the defendant, Lonny D. Hazelwood, w

as charged with driving under the influence. The trial c ourt suppressed the results of a blood alcohol test. The State of Tennessee filed this interlocutory appeal. Rule 9, Tenn. R. App. P. The single iss ue for review is w hether the trial court er red by suppressing the results of the blood alcohol test.
We affirm the ruling of the trial court. This cause is remanded for further proceedings consis tent with this opinion.
The defendant's preliminary hear ing was initiall

y scheduled for September 25, 1996. Although the defendant was in attendance, the state did not have the blood alcohol test results and the hearing w as continued to November 10th. On that date, the blood alcohol test results were s

till unavailable. A second continuance was granted to the state and the preliminar y hearing was r

escheduled for December 18, 1996. On that date, when the state was still unable to produce the blood alcohol test results or its primary pr osecution witness, the g eneral sessions judge dismiss ed the charges against th e defendant for failure to prosecute.

Almost three months later, the s tate presented the matter to the g rand jury which retur

ned a true bill of indictment, c harging the defendant with driving under the influence. W ithin days, the defendant filed a motion f or discovery requesting the result

s of the blood alcohol test. On the following day, Feb ruary 27, 1997, the state presented the defendant w ith an official report showing that the Tennessee Bureau of Investigati on had tested the blood sample short ly after the arrest and that the defendant's blood alcoh ol level registered 0.13%. Six days later, the defendant requested that the sample be preserved for independent tes ting.3 Assistant District A

ttorney Derek Smith attes ted that he called the TBI laborato ry on March 7, two days after the request by the defense, to have the sample preserv ed. At that time, he was informed that the sample had been destroyed w ithin twenty-four hours of the time the state prov ided the defendant with a copy of the official report.
Defense attorneys Reid Str eet and Ed Silva attested that they had requested the results of the bl ood alcohol test from the distri ct attorney's office on eight occasions since J uly 22, 1996, and were i nformed as late as February 2 4, 1997, that the results wer e not available. At the ev identiary hearing, e

ach of the defense attorneys contended that they had no knowledge whether a test had ever been performed on the sample until they were notified in late Feb ruary.
At the suppression hearing , the state maintained that defense couns el should have filed a motion req uesting access to the sampl e for independent testing between the July 1996 arrest and the February 1997 indictment. The state also argued that defense counsel should have contacted the TBI directl y and directed the agency to preserve

the sample.
Dr. Dawn King, a t

oxicologist for TBI, tes

ted the blood sample. She testified that the agency pol icy is to enter the r esults of the test into the computer upon its completion. She relat ed that the computer generates a report and that an agency secretary

then sends the report by r egular mail to the distr

ict attorney. The report includes a notice that the sample will be des troyed sixty day

s after testing. Dr. King testified that s he tested the sample in questi on on July 18, 1996, and placed the results in the c omputer on July 22, 1996.
The trial judge, noting that the state was caught in a "catch 22,"4 conclud ed that if the state prevailed in its argum ent, the defend ant would then have a Sixth Amendment ineffective ass istance of counsel claim. He also observed that the statute did not contemplate that eight months would pass before the state submitted the matter to the gran d jury and that the blood mig ht have been destroyed as early as Septem ber of 1996. I n granting the mot ion to suppress , the trial judge held that the negligence of the state had eff ectively deprived the defendant of his right to a prelimin ary hearing:

[It is] neglect to hav

e the person in charge of the prosecution go one, two, three times to the preliminary hearing, a right the defendant has, without the evidence which th[is] judge infers got there and was there and the first time [the state] knew [the report was there] is when the evidence was presented to the grand jury, by which time this evidence, in th e ordinary course of ev ents, ... would have been long gone. (Emphasis added).

The findings of fact at a suppression he aring are conclusiv

e on appeal unless the evidence preponder ates otherwise. State v. Odom , 928 S.W.2d 18 (Tenn. 1996); State v. Tate , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981); Graves v. State , 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973); see Tenn. R. Crim. P. 12(e). Yet this court

must conduct a de novo rev iew of the trial court' s application of law to the facts. State v. Bridges , 963 S.W.2d 487, 489 (Tenn. 1997); State v. Yeargan , 958 S.W.2d 626, 62 8 (Tenn. 1997).

The statute mandates disclosure of the blood alcohol test results

" upon request ." Tenn. Code Ann. § 55-10-409 (emphasi s added). The person tested is also entitled to a sample of blood for independent testing . Tenn. Code Ann. § 55-10-410(e). The statute is silent as to how l ong blood samples must be held to accommodate the rights of the accused.5 A preliminary hearing

is a critical stag e of criminal prosecution designed to determine whether there is probable cause to believe that the accused committed the alleged offense. Tenn. R. Crim. P. 5.1. A defendant arrested bef ore an indictment is handed down ha s the right to a preli minary hearing. If the defendant is indicted while awaiting a prelimi nary hearing, he or s he may move to have the indictment dismiss ed, so long as the motion is made within thirty d ays of arrest. Tenn. R. Crim. P.5(e). After the thirty -day period, a defendant may mov e to dismiss the indictment only upon a showing of bad faith on the part of the state or court. Moore v. State , 578 S.W.2d 78 (Ten n. 1979).

In State v. Golden , this court held that the pr osecution, acting in bad faith, had denied Golden the right to a preliminary hear ing. 941 S.W.2d 905, 906 (Tenn. Crim. App. 1996). In that case, Golden was charg ed with possession of drug paraphernalia. Before his prel iminary hearing, he mov ed to suppress evidence he claimed had been unlawfully obtained during the search of his vehicle. As he cal led the arresting officer to testify at the suppression heari ng, the state represented that it would not oppose the motion to suppress. The general ses sions court granted the motion and dismissed the case. Id. at 906. Within a month, the state, relying on the testimony of the arresting officer, obtained an indictment from the g rand jury. The trial court dismissed the indictment, ruling that Golden had been de nied his preliminary hearing

due to the acts of the prosecutor. Id. This court affirmed, finding that the state had acted i n bad faith:

Bad faith may be defined as the state of mind involved when one is not being faithful to one's duty or oblig ation. The duty of a prosecutor is tw ofold. ... [H]e is the guardian of the state's inter est. At the same time, the prosecutor is the protector of the rights of the accused. At all times, the prosecutor 's goal remains, not that h e shall win a case, but that justice shall be done. Id. at 908 (internal citation s omitted).6 In our view, the office of the di strict attorney gene ral failed to fulfill its obligations in this case. The trial judge, who found that the district attorney's off ice had or should have had possess ion of the test results but neg ligently failed to present them at three scheduled pr eliminary hearings,obviously suppress ed the evidence. The state had the stat utory obligation to pr ovide the defendant with the results of the test and the opportun ity for independent analys is. Through no fault of his own, the defendant was den ied his right to a prel iminary hearing. Supp ression of the test results was the proper remedy in this instance. The state should no t gain a tactical advantage by neglecting the duties o f its office.
Accordingly, the judgment of the trial court is affirmed and this cause is remanded to the trial court for further proceedings consis tent with this opinion.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

_________________________________ David G. Hayes, Judge

_________________________________ Jerry L. Smith, Jud ge