IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 15, 2011, Session

STATE OF TENNESSEE v. SHIRLEY LARHONDA GAGNE

Direct Appeal from the Criminal Court for Campbell County

No. 13654 E. Shayne Sexton, Judge

No. E2009-02412-CCA-R3-CD-FILED-MAY 31, 2011

A Campbell County jury convicted the Defendant, Shirley LaRhonda Gagne, of driving

under the influence (“DUI”), third offense; driving on a suspended license, second offense;

possession of drug paraphernalia; violation of the seatbelt law; and violation of the open

container law. The trial court sentenced the Defendant to eleven months and twenty-nine

days, with 130 days to be served in confinement and the remainder to be served on probation.

On appeal, the Defendant contends that: (1) the trial court erred when it admitted into

evidence testimony pertaining to a blood sample taken from her; and (2) the evidence is

insufficient to support her conviction for DUI, third offense. After a thorough review of the

record and applicable law, we affirm the trial court’s judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER,J., delivered the opinion of the court, in which DAVID H. WELLES

and THOMAS T. WOODALL, JJ., joined.

Michael G. Hatmaker, Jacksboro, Tennessee, for the Appellant, Shirley LaRhonda Gagne.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; William Paul Phillips, District Attorney General; and LaTosha Wassom, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

This case arises from a two-vehicle accident involving the Defendant. After this

accident, the investigating officer obtained a toxicology report that revealed the presence of
intoxicants in the Defendant’s bloodstream. Based on this incident, a Campbell County

grand jury indicted the Defendant for: DUI, third offense; driving on a suspended license,

second offense; possession of cocaine; possession of drug paraphernalia; violation of the

seatbelt law; violation of the open container law; and violation of the registration law. The

Defendant proceeded to trial, wherein the following evidence was presented:

Donald Ditty testified that between 6:30 a.m. and 7:00 a.m. on November 12, 2006,

as he was driving to work on a Campbell County highway, he saw a car come around a curve

in the highway traveling in his lane. The car struck him head-on. After gathering himself,

he got out of his car to check on the other driver, whose air bag had deployed. At trial, he

identified the Defendant as the driver. Ditty described the conversation he had with the

Defendant as “not good,” recalling that she was angry and repeatedly told him that her child

had been killed on the same highway. After the Defendant began to yell at Ditty, Ditty

walked away. Ditty recalled seeing the Defendant get out of her car but testified that she

immediately said, “Oh, I’ve gotta sit down,” and sat down on the curb. Ditty never saw the

Defendant stand back up.

Trooper Rick Woodward, of the Tennessee Highway Patrol, testified that he had been

a trooper since 1989 and that he had received DUI detection training, for which he received

updated training yearly. Trooper Woodward was summoned to the scene of the accident in

this case, and he described the roadway where the accident occurred as two curves leading

into a “straightaway” portion of the highway. Campbell County Sheriff’s Deputy Darrell

Mongar was already present when Trooper Woodward arrived. From what the trooper could

gather at the scene, Ditty was traveling in his proper lane of travel when the Defendant’s car

struck his car, knocking it partially off the roadway. The Defendant’s car was stopped,

blocking the southbound lane of traffic.

When the trooper arrived, the Defendant was speaking with Deputy Mongar on the

passenger side of her vehicle. The trooper recalled that the Defendant’s erratic behavior

prompted the trooper to ask her whether she had been drinking: “[H]er behavior, her ability

to stand, her balance, you know, the bloodshot eyes, the slurred speech, the jumping back and

forth, one minute hysterical, the next minute crying. The next minute she would be

indifferent.” The Defendant admitted to the trooper that she had been drinking at a friend’s

house. When he asked her why her eyes were bloodshot and watery, she responded that she

had been “partying” at a friend’s house the night before, and she had not slept in a day and

a half. The Defendant also admitted to the trooper that she had taken “pills” before the wreck

and, specifically, that she had taken a hydrocodone an hour to an hour and a half before the

wreck. She also admitted that she was not wearing her seatbelt at the time of the wreck.

The trooper testified that, due to the Defendant’s slurred speech, bloodshot eyes, and

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general demeanor, he believed the Defendant was under the influence of an intoxicant at the

time of the collision. He testified that her statements that she had been drinking, had taken

medications, and had not slept in a day and a half confirmed his suspicion. Trooper

Woodward testified that, although under normal circumstances he would have required the

Defendant to perform field sobriety tests, he declined to do so because the Defendant began

to complain of chest pain and requested to be transported to the hospital. The trooper alerted

emergency medical personnel, who were already on the scene, to the Defendant’s condition,

and an ambulance transported the Defendant to the hospital.

As the Defendant was transported to the hospital, Trooper Woodard stayed behind to

arrange for the wrecked vehicles, which were blocking traffic, to be towed. Upon

performing an inventory search of the Defendant’s car, he noticed that the Defendant’s purse

had fallen into the passenger-side floorboard and that two amber-colored pill bottles had

apparently rolled out of the purse. The trooper opened the larger pill bottle first and found

that it held a plastic baggie containing a white, powdery substance. The trooper next opened

the second pill bottle, which he described as a small “nitro pill bottle . . . about as long as my

finger.” This bottle also contained white powder. The trooper seized both bottles and began

to inventory the items within the Defendant’s purse. Inside the Defendant’s purse, he found

a glass tube with a screen at one end, which he recognized as a “crack pipe.” The trooper

also observed an open, half-empty can of beer, which was still cold to the touch, lying in the

floorboard. The trooper seized the beer can as well as the crack pipe.

Trooper Woodward was soon called away to another incident, and he sent Deputy

James Skeans to the hospital where the Defendant was being treated. Deputy Skeans later

provided Trooper Woodward with a “TBI blood kit” taken from the Defendant. The trooper

turned this, as well as the items seized from the Defendant’s car, over to the TBI on

November 15, 2006. Two days after the accident, the trooper obtained the Defendant’s

“certified driver record” from the Tennessee Department of Safety, which indicated that the

Defendant’s license was suspended. This record was entered into evidence at trial.

Deputy James Skeans of the Jacksboro Police Department testified that on November

12, 2006, he was dispatched to St. Mary’s Hospital to inquire whether the Defendant would

submit to a blood alcohol test. When he arrived, he found the Defendant lying in a hospital

bed, and he perceived her to be “disoriented”stating, “Her speech was a little bit slurred.

Kind of seemed like she wasn’t all there, wasn’t really able to focus, answer a lot of

questions. Just kind of seemed as if she wasn’t quite herself.” The deputy asked the

Defendant to give a statement about her involvement in the collision, and the Defendant,

whose I.V. tubes made writing difficult, dictated the following statement to the deputy:

I was driving down the road, and I was thinking about my husband and my

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husband getting out of prison and him being charged with vehicular homicide.

And then thinking of my daughter and her being dug out of the ground, and it

made me feel helpless. I just don’t care anymore. I was driving and just quit

thinking about driving and started thinking about my daughter, and I just

drifted away.

While at the hospital, the deputy requested that the Defendant submit to an alcohol/drug

screen, and the Defendant acquiesced to this request. The defense objected at this point,

requesting proof that the Defendant had signed an implied consent form. The deputy

acknowledged that, although his “standard procedure” under these circumstances is to ask

a motorist to sign a Tennessee Implied Consent Form, he did not obtain an implied consent

form from the Defendant and could not recall whether he read aloud the provisions of the

form to the Defendant. The trial court overruled the defense objection.

The State introduced a document from St. Mary’s Hospital, and Deputy Skeans

confirmed that this document was a consent for blood withdrawal form signed by the

Defendant and dated November 12, 2006. The deputy testified that, after the Defendant

consented to an alcohol/drug screen, a nurse drew the Defendant’s blood and packaged the

samples in the TBI blood sample kit box. The deputy then filled out a form that accompanied

the kit, placed the form within the box, and sealed the box. Deputy Skeans confirmed that

he later gave this blood kit to Trooper Woodward.

On cross-examination, Deputy Skeans confirmed that the Defendant was in the

emergency room when he interviewed her and obtained her blood sample. The deputy

testified that, although he did not bring an implied consent form to the hospital or read its

provisions to the Defendant, he informed the Defendant that she had “the right to refuse” and

that “if she did refuse, that it could result in suspension of the license.”

Special Agent Stephanie Dotson with the TBI Investigation Crime Lab in Knoxville

testified that on November 16, 2006, the Knoxville crime lab received the Defendant’s blood

samples. On December 5, 2006, Agent Dotson was instructed to test the blood-alcohol

content of the blood samples. She analyzed the samples and issued a report, which was

introduced into evidence, and she discussed the results of that report at trial. The report

indicated that the Defendant’s blood sample was “negative” for ethyl alcohol, but Agent

Dotson explained that ethyl alcohol was present in the blood sample at a level below .01, the

level which yields a “positive” result. The samples were then passed on to the Nashville

Crime Lab for drug analysis.

Special Agent Jeff Crews of the TBI Investigation Crime Lab in Nashville testified

that he received the Defendant’s blood samples for drugs screen analysis. On February 23,

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2007, the agent analyzed the samples and issued a report, which the State introduced at trial,

and the agent explained the results at trial. The agent testified that the sample was “positive”

for cocaine; that diazepam was present at 0.05 micrograms per milliliter; and that the sample

was “negative” for barbiturates, marijuana, and opiates.

Agent Crews testified that cocaine is a stimulant that can cause impairment. He

explained that the body metabolizes or “breaks down” all drugs from their compound form

into metabolites in order to “get [the drug] out of the body.” He testified that cocaine,

however, is one of the few drugs that continues to metabolize or “break down” once inside

a test tube. Because cocaine does not stop breaking down once it leaves the body, it is

known as an “unstable” drug. He testified that, despite this high-metabolic rate, cocaine was

still present in its compound form in the Defendant’s blood sample over two months after the

sample was collected.

The agent testified that diazepam is the generic name for Valium, a central nervous

system depressant with sedative, tranquilizing effects. He explained that a “therapeutic

range” of a substance is the amount of the substance one would expect to find in a person’s

body who is taking the substance for medicinal reasons. He also explained that, when a

substance is present at the therapeutic range, one can assume the drug is having its “desired

effect.” As the therapeutic range for diazepam is 0.02 to 4.9 micrograms per milliliter, the

Defendant’s 0.05 level of Diazepam was within the therapeutic range. Agent Crews testified

that both cocaine and diazepam are “impairing” in the sense that each causes an increase in

reaction time and a decrease in critical thinking.

Jacob White of the drug identification section of the TBI Crime Laboratory in

Knoxville testified that on November 16, 2006, he received the pill bottles and crack pipe

seized from the Defendant’s car. The agent performed a variety of tests upon the items to

determine whether the items contained controlled substances. His analysis revealed that the

large pill bottle containing a baggie of white powder did not contain a controlled substance.

Tests performed upon the white powder residue within the crack pipe were “inconclusive.”

His examination of the small plastic pill bottle, however, revealed the presence of cocaine.

On cross-examination, Agent White testified that the small pill bottle contained only

“residue” of cocaine.

At the conclusion of evidence, the State retired its charge against the Defendant for

violation of the registration law, and the remaining charges were submitted to the jury. The

jury convicted the Defendant of DUI, third offense; second offense driving on a suspended

license; possession of drug paraphernalia; violation of the open container law; and violation

of the seat belt law. The jury acquitted her of simple possession of cocaine.

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The trial court later held a sentencing hearing, wherein the parties submitted an agreed

sentence: eleven months and twenty nine days, with 130 days to be served in confinement

and the remainder to be served on probation. The trial court approved this sentence,

suspended the Defendant’s driver’s license for three years, and ordered her to complete

alcohol and drug treatment.

The Defendant filed a motion for new trial, arguing that the trial court erred when it

admitted TBI analysis of the Defendant’s blood sample and that the evidence wasinsufficient

to support her convictions. The trial court denied this motion, and the Defendant filed a

timely notice of appeal.

II. Analysis

A. Admission of TBI Analysis of the Defendant’s Blood Sample

The Defendant first contends that the trial court erred when it admitted the results of

the toxicology analysis of a blood sample taken from the Defendant while she was being

treated at a hospital after this accident. She attacks the admission of this evidence on a

number of bases, which can be consolidated into two basic arguments: first, that the tests

were admitted in violation of her Fourth Amendment right against unreasonable search and

seizure; and second, that the tests were admitted in violation of Tennessee Code Annotated

section 55-10-406 because the investigating officer did not obtain an implied consent form

from the Defendant before he ordered the collection of her blood sample.

The Fourth Amendment of the U.S. Constitution sets out the minimum protection

from unreasonable search and seizure a state must afford a defendant in a criminal

prosecution. State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn. Crim. App. 2001). The

Tennessee Implied Consentstatute, insofar asit provides procedural barriersto the admission

of biological evidence collected from a defendant, expands this protection. Id. However,

this expanded protection is not of constitutional proportion. Id. In order to facilitate review

of this issue, we will address the issue of the admissibility of the toxicology analysis in light

of the Fourth Amendment separately from the issue of its admissibility in light of the Implied

Consent statute. First, however, we will address whether the Defendant has waived review

of this issue.

The State contends that, by failing to move to suppress the admissibility of the reports

before trial, the Defendant waived review of this issue. The Defendant in his brief does not

explain why he did not move to suppress the report before trial.

The Defendant in this case did not move pre-trial to suppress the toxicology reports.

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She did, however, object contemporaneously to the State’s introduction of the reports at trial

based upon the Deputy Skeans’s failure to obtain an implied consent form from the

Defendant. The trial court overruled her objection, finding that the absence of an implied

consent form did not render the reports inadmissible.

Tennessee Rule of Criminal Procedure 12(b)(2) provides that a motion to suppress

“must” be filed prior to trial. Rule 12(f) provides that the failure to filed such a pretrial

motion constitutes a waiver thereof unless cause is shown for noncompliance with the rule.

Tenn. R. Crim. P. 12(f).

We conclude that, in this case, the Defendant has waived the issue of the admissibility

of the reports by failing to file a pretrial motion to suppress. See Tenn. R. Crim. P. 12(b)(2).

However, because the Defendant contemporaneously objected to the reports’ admission and

because we deem the interests of justice to require consideration of the admissibility of the

reports, we elect to review the issue despite the Defendant’s waiver. See State v. Johnson,

673 S.W.2d 877, 883 (Tenn.Crim . App.1984). In reviewing the trial court’s decision to

admit the reports, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate

view of the evidence and all reasonable and legitimate inferences that may be drawn from

that evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,

978 S.W.2d 861, 864 (Tenn. 1998)). This Court conducts its own apprisal of the

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

of the particular case. State v. Henning, 975 S.W.2d 290, 297 (Tenn. 1998).

1. Whether the Fourth Amendment Requires the Exclusion of the Reports

The Defendant argues the admission of the toxicology reports in this case violated her

right against unreasonable search and seizure because she was not under arrest when her

blood sample was taken and did not meaningfully consent to the sample being taken. In its

brief, the State does not respond to the Defendant’s argument that the Fourth Amendment

bars admission of the toxicology reports.

Both the United States and Tennessee Constitutions protect against unreasonable

searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7. The Fourth

Amendment of the U.S. Constitution proclaims that “the right of the people to be secure . .

. against unreasonable searches and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause.” U.S. Const. amend. IV. The Tennessee Constitution

provides “people shall be secure in their persons, houses, and papers and possessions, from

unreasonable searches and seizures.” Tenn. Const. art. I, § 7. The sampling of a person’s

blood for the detection of the presence of intoxicants is a “seizure” within the meaning of the

Fourth Amendment. Schmerber v. California, 384 U.S. 757, 770 (1966); State v. Blackwood,

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713 S.W.2d 677, 679 (Tenn. Crim. App. 1986).

Generally, to search a person’s property, a warrant is needed, and, if a search is

conducted without a warrant, “evidence discovered as a result thereof is subject to

suppression unless the State demonstrates that the search or seizure was conducted pursuant

to one of the narrowly defined exceptions to the warrant requirement.” State v. Yeargan, 958

S.W.2d at 629. A trial court accordingly presumes that a warrantless search or seizure is

unreasonable unless the State demonstrates that one of the exceptions to the warrant

requirement applies to the search. Id.

One exception to the warrant requirement includes “exigent circumstances.”

Schmerber, 384 U.S. at 770. Because evidence of an intoxicating substance in a person’s

blood diminishes shortly after consumption, a compulsory breath or blood test, taken with

or without the consent of the donor, falls within this “exigent circumstances” exception.

Humphreys, 70 S.W.3d at 760-61 (citing Schmerber, 384 U.S. at 770). Thus, under this

exception, due to the nature of evidence in cases involving intoxicated motorists, the State

need not procure a motorist’s consent in order to collect a blood sample for the purpose of

detecting the presence of intoxicants. Id. If probable cause exists to believe that (a) the

motorist has consumed an intoxicant; and (b) testing of the motorist’s blood will reveal

evidence of his or her intoxication, law enforcement need not obtain the voluntary consent

of the motorist before collecting his or her blood sample. Humphreys, 70 S.W.3d at 761

(citing Schmerber, 384 U.S. at 768-72).

Another well established exception to the warrant requirement is where a search or

seizure is conducted pursuant to the subject’s consent. Schneckloth v. Bustamonte, 412 U.S.

218 (1973); Rippy v. State, 550 S.W.2d 636 (Tenn. 1977). “The sufficiency of the consent

depends largely upon the facts and circumstances presented by each particular case. The

burden is on the prosecution to prove that the consent was given freely and voluntarily.”

State v. Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986).

In this case, Trooper Woodward ordered the collection of the Defendant’s blood

without first obtaining a search warrant. He did so, however, after having formed a suspicion

that the Defendant, who had recently been in operation of a vehicle involved in traffic

accident, was under the influence of intoxicants. This suspicion was based partially upon the

defendant’s bloodshot eyes, slurred speach, and disoriented demeanor. The Defendant

herself confirmed the deputy’s suspicion by admitting that she had been “partying” the night

before, had consumed alcohol, and had taken “pills,” admitting to having taken Hydrocodone

as little as an hour and a half before the accident. Also, the deputy knew that the Defendant

had been traveling in the opposite lane of traffic when she struck Ditty’s car. Based on the

deputy’s observations and the Defendant’s admission, we conclude that Trooper Woodard’s

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request for the Defendant’s blood sample was based upon “probable cause” to believe the

Defendant was intoxicated. See Humphreys, 70 S.W.3d at 761. As such, and because the

Defendant’s blood was collected in order to detect the presence of intoxicants in her

bloodstream, the collection of her blood sample falls within the “exigent circumstances”

exception to the bar on warrantless seizures. The Fourth Amendment poses no barrier to the

admission of the chemical analysis of the sample. See id.; Schmerber, 384 U.S. at 770.

Moreover, we conclude the evidence proves the Defendant consented to the seizure

within the meaning of the Fourth Amendment. The Defendant argues her consent was not

valid because: an ambulance rather than a police cruiser had transported her to the hospital;

she was disoriented at the time she agreed to give a blood sample; and she did not understand

she was under suspicion of DUI. She also asserts on appeal that “no field sobriety tests were

given” at the scene of the accident. The evidence, however, shows that Deputy Skeans asked

the Defendant for a blood sample and informed her of the repercussions of refusing to submit

to a blood sample. Nothing in the record suggests either that the officer forcefully extracted

the Defendant’s blood or that the Defendant lacked the capacity to consent to give blood

sample. We conclude that “the facts and circumstances” of this case indicate that the

Defendant consented to the blood sample “freely and voluntarily.” See Blackwood, 713

S.W.2d at 680. Thus, the collection of the Defendant’s blood sample also fell within the

“consent” exception to the rule against warrantless seizures. See Rippy, 550 S.W.2d at 636.

Having determined that the collection of the Defendant’s blood sample fell within two

separate exceptions to the Fourth Amendment’s bar on warrantless searches and seizures, we

conclude that the Fourth Amendment did not bar the admission of the toxicology reports

concerning the sample. We turn to examine whether the Tennessee Implied Consent statute

afforded the Defendant additional protection from the State’s collection of her blood sample.

2. Whether Tennessee’s Implied Consent Statute Requires Exclusion of the Reports

The Defendant contends that Tennessee’s Implied Consent statute requires an officer

to obtain an implied consent form in order to collect a motorist’s blood sample and that,

because no such form was collected in this case, the toxicology reports analyzing the

Defnedant’s blood sample were inadmissible. The Defendant further contends that, even if

an implied consent form is not strictly necessary, the results of her toxicology reports were

nonetheless inadmissible because Deputy Skeans failed to adequately explain her right under

the Implied Consent statute to refuse to give a blood sample.

The State responds that the Tennessee Code does not require an officer to obtain an

implied consent form in order to collect a blood sample. The State contends that the statute

requires only that a motorist have completed an implied consent form in order to be

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prosecuted for violation of the implied consent law. The State argues that, once a motorist

consents to give a blood sample, the Implied Consent statute has no bearing on the

admissibility of evidence relating to the blood sample.

In Tennessee, “[i]n 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.” State v.

Humphreys, 70 S.W.3d 752, 761 (Tenn. Crim. App. 2001). Tennessee Code Annotated

section 55-10-406(a)(1) provides that anyone who drives a vehicle in Tennessee “is deemed

to have given consent” to a test for alcohol or drug content in the blood, provided that

“reasonable groundsto believe such a person was driving under the influence of an intoxicant

or drug” exist. The Tennessee Code thereby supplements the constitutional basis for a

warrantless drug or alcohol test by deeming a motorist to have “consented” to such a test.

A motorist need not be under arrest or in physical police custody in order for his or

her implied consent to arise under the terms of the Implied Consent statute. State v. Kelly

A. Hancock, No. 01C01-9804-CC-00191, 1999 WL 298219, *6 (Tenn. Crim. App., at

Nashville, May 12, 1999). Under the statute, once a law enforcement officer has reasonable

grounds to believe a motorist is under the influence of an intoxicant, the officer may

administer a drug or alcohol test without further ascertaining whether the motorist consented

in a subjective sense to the test. See State v. Michael A. Janosky, No. M1999-02574-CCAR3-CD, 2000 WL 1449367, at *4 (Tenn. Crim. App. At Nashville, Sept. 29, 2000), no Tenn.

R. App. P. 11 application filed.

“In order to avoid potentially violent confrontations between private citizens and law

enforcement officers,” however, the Implied Consent Statute allows a motorist to “refuse”

to submit to an alcohol or drug screen, with a resulting loss of his or her driver’s license for

one year. T.C.A. § 50-10-406(a)(3). In such a case, a defendant may execute an “implied

consent form,” indicating that he has been informed that his refusal will result in the one-year

loss of his license. T.C.A. § 55-10-406(a)(2). With proof that the motorist was “advised of

the consequences of such a refusal,” which usually consists of an implied consent form

signed by the motorist, the State may prosecute the Defendant for “violation of the implied

consent law,” which, if successful, results in the loss of the motorist’s license for one year.

See T.C.A. § 55-10-406(b).

The Implied Consent statute’s refusal provision does not affect the constitutional and

statutory bases for performing a warrantless search of a motorist’s blood. Rather, it allows

law enforcement to avoid a dangerous confrontation with an unruly motorist while also

penalizing the motorist for refusing to comply with the test. “[T]o carve out a rule of

exclusion where the [refusal] provisions . . . have not been followed” is not the purpose of

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the Implied Consent statute. Hancock, 1999 WL 298219, *7. Therefore, a motorist’s

consent to a drug or alcohol screen is not contingent upon whether he has executed an

implied consent form; it is present from the moment “reasonable grounds [exist] to believe

such a person was driving under the influence of an intoxicant or drug.” T.C.A. § 50-10-

406(a)(1). Only a motorist’s “express refusal” affects the admissibility of a drug or alcohol

screen performed upon a motorist suspected of driving under the influence; the absence of

his subjective consent does not affect such a test’s admissibility. See Humphreys, 2001 WL

844400, at *7; Janosky, 2000 WL 1449367, at *4.

In this case, the Defendant chose to operate a vehicle and thereby subjected herself

to the Implied Consent statute. The Defendant’s driving behavior, her demeanor, and her

own admissions provided Trooper Woodward with “reasonable grounds” to believe the

Defendant was “driving under the influence of an intoxicant.” T.C.A. § 55-10-406(a)(1).

Further, nothing in the record suggests that the Defendant expressly refused to submit to the

blood collection. Though he did not bring, read, or have the Defendant sign an implied

consent form, Deputy Skeans informed the Defendant of her right to refuse a blood sample

and explained the repercussions of refusing to give such a sample. Contrary to the

Defendant’s arguments on appeal, the Implied Consent statute requires law enforcement

neither to read aloud the exact language of the implied consent form nor to obtain a signed

implied consent form in order to collect a motorist’s blood sample. Rather, the statute

requires only that an officer advise a motorist that refusal to submit to blood testing may

result in a one-year loss of driver’s license. See, e.g., State v. Kain, 24 S.W.3d 816, 820

(Tenn. Crim. App. 2000).

The Defendant’s contention that her consent was involuntary because she merely was

responding to the Deputy Skeans’s request is misplaced. As discussed above, a motorist’s

subjective consent is unnecessary because a motorist has already consented by driving a

vehicle upon the public roads of Tennessee. See Humphreys, 2001 WL 844400, at *7;

Janosky, 2000 WL 1449367, at *4. Only a motorist’s express refusal bars collection of a

blood sample under the Implied Consent statute. Id. In this case, nothing in the record

suggests that the Defendant made any express refusal to submit to the blood sample that

Deputy Skeans requested. As such, the Implied Consent Statute did not bar collection of the

Defendant’s blood sample, and the trial court properly admitted the results of the TBI’s

analysis of her blood sample at her trial. The Defendant is not entitled to relief on this issue.

B. Sufficiency of the Evidence to Support DUI, Third Offense

The Defendant contends that, even if the TBI reports were properly admitted, its

contents were insufficient to support the jury’s finding that the Defendant operated her

vehicle “under the influence of an intoxicant” within the meaning of Tennessee Code

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Annotated section 55-10-401(a)(1) (2009). She argues that, because the report revealed the

presence of diazepam at or below therapeutic level and indicated only that cocaine was

“present,” the report did not contain enough information upon which a jury could conclude

that the Defendant was “under the influence of an intoxicant.”

The State responds that, given Agent Crews’s testimony that the combination of

diazepam and cocaine has an intoxicating effect, the report alone was enough to support the

Defendant’s conviction. Further, the State argues, Agent Crews testified that, because the

sample was tested for cocaine two months after being collected, the fact that cocaine was

present at all speaks to the likely high levels of cocaine that were originally present in the

blood sample. The State argues that the Defendant’s own admission that she had taken pills

before driving and witnesses’ testimony that the Defendant appeared intoxicated also support

the Defendant’s conviction for driving under the influence.

When an accused challenges the sufficiency of the evidence, this Court’s standard of

review is whether, after considering the evidence in the light most favorable to the State,

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.

13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d

247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence. State

v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be

based entirely on circumstantial evidence where the facts are “so clearly interwoven and

connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant

alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to

be given to circumstantial evidence, and “[t]he inferences to be drawn from such evidence,

and the extent to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006) (citations omitted). In determining the sufficiency of the evidence, this Court should

not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by the trier

of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v.

State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the

witnesses, the weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the

theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace,

493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court stated the rationale for

this rule:

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This well-settled rule rests on a sound foundation. The trial judge and the jury

see the witnesses face to face, hear their testimony and observe their demeanor

on the stand. Thus, the trial judge and jury are the primary instrumentality of

justice to determine the weight and credibility to be given to the testimony of

witnesses. In the trial forum alone is there human atmosphere and the totality

of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view

of the evidence contained in the record, as well as all reasonable inferences which may be

drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d

274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the

presumption of innocence and raises a presumption of guilt, the convicted criminal defendant

bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

The Defendant in this case contests the sufficiency of the evidence to support her

conviction for DUI, third offense. A person commits the offense of DUI when he or she

drives an automobile while “[u]nder the influence of any intoxicant, marijuana, narcotic drug,

or drug producing stimulating effects on the central nervous system . . . .” T.C.A. §

55-10-401 (2009). The statute imposes strict liability without reference to a culpable mental

state. See State v. Turner, 953 S.W.2d 213, 216 (Tenn. Crim. App. 1996).

First, our review of the record reveals that, contrary to the Defendant’s assertion on

appeal, the Defendant had a level of diazepam within the therapeutic level. Agent Crews

testified that diazepam’s therapeutic range is between 0.02 and 0.4 ml/mg, and that the

Defendant’s blood contained 0.05 ml/mg of diazepam. The Defendant, therefore, had a

therapeutic level of diazepam, which, according to the agent’s testimony, was sufficient to

have the “desired effects” of sedation and tranquilization. Thus, the presence in the

Defendant’s blood of diazepam at the therapeutic level was evidence supporting the jury’s

finding that the Defendant was operating a vehicle under the influence of an “intoxicant”

within the meaning of the DUI statute. See T.C.A. § 55-10-401.

The level of diazepam present in the Defendant’s bloodstream was not the only

evidence that the Defendant was under the influence of an intoxicant. Agent Crews’s

analysis of the Defendant’s blood sample also revealed the presence of cocaine compounds.

This discovery was important in light of the continued metabolic breakdown of cocaine once

cocaine enters a test tube. The presence of cocaine in the blood sample over two months

after the sample’s collection also supports the jury’s finding that the Defendant was under

the influence of an intoxicant.

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Finally, the Defendant’s behavior and admissions corroborate the results of the

alcohol and drug screens of the Defendant’s blood sample. The Defendant was driving in

the wrong lane of traffic when she struck Ditty’s car. Both Ditty and Trooper Woodward

testified that the Defendant displayed erratic behavior, including slurred speech, bloodshot

eyes, and an unpredictable temperament. Considering these observations, in conjunction

with her admissions that she spent the previous night “partying,” consuming alcohol, and

taking “pills,” the evidence was more than sufficient to support the jury’s verdict that the

Defendant operated her vehicle while under the influence of an intoxicant. Goodwin, 143

S.W.3d at 775. We conclude the evidence is sufficient to support her conviction for DUI,

third offense. The Defendant is not entitled to relief on this issue.

III. Conclusion

After a thorough review of the record and applicable law, we conclude the trial court

did not err in admitting into evidence the toxicology reports, and the evidence sufficiently

supports the Defendant’s conviction for driving under the influence, third offense. As such,

we affirm the trial court’s judgments.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

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