         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 13, 2004 Session

                STATE OF TENNESSEE v. PATRICK D. COLLINS


             Interlocutory Appeal from the Criminal Court for Davidson County
                       No. 2001-T-324    Frank G. Clement, Jr., Judge



                      No. M2002-02885-CCA-R9-CO - Filed May 3, 2004


The trial court dismissed count two of this indictment charging the violation of the implied consent
law and barred the State from arguing in the defendant’s trial for DUI that he knew he would suffer
a loss of driver’s license if he refused the breath test. The State appeals. We conclude that the
defendant was sufficiently advised of the possible suspension of his driver’s license upon his refusal
to submit to testing to satisfy the warning requirement of Tennessee Code Annotated section 55-10-
406(a)(2). The defendant need not be advised of the correct and exact term of the suspension in
order to satisfy the statutory warning requirements. The defendant was advised that he would suffer
a loss of driver’s license if he refused the breath test. We reverse the trial court’s dismissal of the
violation of implied consent law. Likewise, we reverse the trial court’s limiting the State from
arguing that the defendant knew he would suffer a loss of driver’s license if he refused the breath
test. Accordingly, we remand for trial consistent with this opinion.

       Tenn. R. App. P. 9; Judgment of the Criminal Court Reversed and Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT , JR., JJ., joined.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Scott R. McMurtry, Assistant District
Attorney General, for the appellant, State of Tennessee.

V. Michael Fox, Nashville, Tennessee, for the appellee, Patrick D. Collins.

                                             OPINION

          The defendant, Patrick D. Collins, was charged in a two-count indictment for driving under
the influence, second offense, and for violation of the implied consent law. The defendant, prior to
trial, filed a motion in limine seeking to bar the State from introducing evidence of the defendant’s
refusal to submit to a blood alcohol test. The defendant based the motion on the fact that the
arresting officer had read an outdated version of the “Rights of the Suspect,” which advised the
defendant that refusal would result in a one-year license suspension. In reality, the defendant’s
refusal, because he had a prior DUI conviction, would result in a two-year suspension.

        The trial court ruled that the failure to read the current and correct “Rights of the Suspect”
did not advise the defendant of the “consequences” of his refusal. Therefore, the trial court held that
the State was barred from seeking suspension of driver’s license pursuant to Tennessee Code
Annotated section 55-10-406 and barred from arguing to the jury on the DUI charge that the
defendant knew he would lose his driver’s license if he refused to submit to the test.

                                               Analysis

       The State, in this interlocutory appeal, poses two issues for our review:
       I. Can the State seek civil penalties under Tennessee Code Annotated section 55-
           10-406 if the arresting officer did not properly explain the penalties in reading the
           “Rights of the Suspect” to the defendant?
       II. Can the State properly argue to the jury in the DUI charge that the defendant
           refused to submit to a blood or breath alcohol test, knowing that he would lose
           his driver’s license by refusal, even though the defendant was not properly
           advised of the penalties for his failure to submit to the test?

         In construing a statute, this Court should give effect to the legislative intent without unduly
restricting or expanding a statute’s coverage beyond its intended scope. Seals v. State, 23 S.W.3d
272, 276 (Tenn. 2000). This Court must examine the natural and ordinary meaning of the statutory
language within the context of the entire statute, without forced or subtle construction that would
extend or limit its meaning. State v. Goodman, 90 S.W.3d 557, 563 (Tenn. 2002). This Court
should seek to give effect to statutes as a whole, avoiding constructions that render some parts of a
statute void, inoperative, or without effect. State v. Mateyko, 53 S.W.3d 666, 675 (Tenn. 2001).
Issues of statutory construction are questions of law, which we review de novo without a
presumption of correctness. State v. Morrow, 75 S.W.3d 919, 921 (Tenn. 2002).

       The statute, Tennessee Code Annotated section 55-10-406(a)(2) (2000), in pertinent part,
provides:
       Any law enforcement officer who requests that the driver of a motor vehicle submit
       to a test pursuant to this section for the purpose of determining the alcoholic or drug
       content of the driver’s blood shall, prior to conducting such test, advise the driver that
       refusal to submit to such test will result in the suspension of the driver’s operator’s
       license by the court and, if such driver is driving on a revoked, suspended or
       cancelled license, when the person’s privilege to do so is cancelled, suspended or
       revoked because of a conviction . . . , that the refusal to submit to such test will, in
       addition, result in a fine and mandatory jail or workhouse sentence. The court having
       jurisdiction of the offense for which such driver was placed under arrest shall not



                                                  -2-
      have the authority to suspend the license of a driver who refused to submit to the test
      if the driver was not advised of the consequences of such refusal.
(Emphasis added)

        The portion highlighted is the language added by the 2000 amendment. Tennessee Code
Annotated section 55-10-406(a)(3) (2000) provides the penalties for various categories of offenders
and includes a two-year license suspension for defendants with a prior DUI conviction. The prior
act provided a one-year suspension for this category.

        It appears that this is the first appellate review of the issues presented under the changes made
to the statute, Tennessee Code Annotated section 55-10-406, by the amendments of 2000.

        The 2000 amendment contained in section 55-10-406(a)(2) provides for criminal penalties
in the event that the violator is driving on a revoked, suspended, or cancelled license. The language
requiring advice to the suspect driver that failure to submit to the requested test will result in
suspension of driver’s license remains intact and unchanged. In like manner, the language barring
suspension of driver’s license when the consequences of refusal are not given remains unchanged.

       Of further significance are the changes implemented by section 55-10-406(a)(3) (2000),
which provides penalties for various categories of offenders and includes a two-year license
suspension for defendants with a prior DUI conviction. The prior act provided for only a one-year
suspension. Thus, the first issue we confront is whether an inaccurate warning concerning the length
of suspension of driver’s license amounts to a failure to advise of the consequences of refusal to
submit to the requested test.

       The operative and unchanged statutory language has been previously construed, and we avail
ourselves of those precedents in our analysis.

        State v. Huskins, 989 S.W.2d 735 (Tenn. Crim. App. 1998), dealt with a defendant who
voluntarily submitted to a blood test without the benefit of any admonishment of the consequences
of a refusal. The defendant’s attempt to suppress the test results was denied on the basis that
subsection (a)(2) of Tennessee Code Annotated section 55-10-406 is not intended as a rule of
exclusion when its provisions are not followed. In construing the statutory meaning we stated:
        The clear purpose of the admonition requirement is to warn drivers of the
        consequences of failing to comply with the implied consent law. If a driver has been
        so warned yet refuses a blood alcohol test, his driver’s license is subject to
        suspension. The warning puts him on notice of that consequence.
Id. at 737.

        The implied consent warning has been deemed adequate even though it fails to warn the
driver of all significant consequences of refusing to take the test. State v. Kain, 24 S.W.3d 816, 819
(Tenn. Crim. App. 2000). In construing the pre-2000 amended statute, we note that: “A common
sense reading of this statute is that the word ‘consequences,’ as utilized in the second sentence of §


                                                  -3-
55-10-406(a)(2), refers to suspension of the operator’s license, which is required by the first sentence
of this section.” Id. at 820.

        The defendant in State v. Ann Elizabeth Martin, No. E1999-01361-CCA-R3-CD, 2000 Tenn.
Crim. App. LEXIS 693 (Tenn. Crim. App., at Knoxville, Sept. 8, 2000), advanced the argument that
the use of the plural “consequences” in the statute required an officer to advise a defendant of all
possible consequences of refusal to take the test. We rejected that argument and stated that “the
statute requires only that an officer advise a suspect that if the suspect refuses he may have his
license suspended.” Id. at *11.

        A state can compel a suspect to submit to a chemical test without violating any constitutional
right so long as it is supported by probable cause and the means employed in testing are reasonable.
Schmerber v. California, 384 U.S. 757, 770-72, 86 S. Ct. 1826, 1835-37, 16 L. Ed. 2d 908 (1966).
The State of Tennessee has chosen to adopt a policy through its enactment of the implied consent
law which prohibits law enforcement officers from administering a test without the motorist’s
consent to avoid potentially violent confrontations between citizens and officers. State v.
Humphreys, 70 S.W.3d 752, 761 (Tenn. Crim. App. 2001). The right to refuse the test is statutory
and is not absolute. The statute provides that refusal will result in a suspension of the suspect’s
driver’s license if the suspect is warned of this eventuality. See Tenn. Code Ann. § 55-10-406(a)(2).
The statute has grown more complex by the addition of differing periods of suspension for various
categories of offenders. As an unintended result, warnings of the possible consequences of refusal
to submit to testing are now cumbersome, confusing, and fraught with potential for error in the
precise enumeration of the possible terms of license suspension.

        In the instant case, the defendant was advised that his driver’s license would be suspended
for a period of one year when, in reality, due to the defendant’s status as having a prior DUI
conviction, the period of suspension would be two years. The fact remains that the defendant was
advised that his driver’s license would be suspended, and he refused the test with this knowledge.
We therefore hold that the officer’s advice that a suspension of driver’s license would result from
the defendant’s refusal was adequate warning of the consequences. Any additional explanation of
the consequences of refusal would be gratuitous on the officer’s part. Accordingly, we reverse the
trial court’s dismissal of count two, the violation of the implied consent law.

        The State next contends that it would be improperly limited by the trial court in arguing to
the jury the fact that the defendant refused the breath test with knowledge that his driver’s license
would be suspended.

        It is important to note that the trial court’s limitations of the State’s argument was only to bar
an argument that the defendant “knew his license would be suspended if he refused the test.” The
trial court specifically approved the use of T.P.I. Criminal Jury Instruction 38.04, which states:
        If you find from the proof that the defendant was offered and refused to submit to a
        test for the purpose of determining the alcohol or drug content of his blood and that
        the law enforcement officer advised the defendant that refusal to submit to such a test


                                                   -4-
        will result in suspension of his operator’s license, then such refusal is not sufficient
        standing alone and by itself to establish the guilt of the defendant, but it is a fact
        which, if proved, may be considered by you in light of all other proved facts in
        deciding whether the defendant is guilty or not guilty. The weight to which such a
        circumstance is entitled and whether or not such conduct shows a consciousness of
        guilt are matters for your determination.

        Having ruled that the penalty for refusal was inappropriate, the trial court then concluded that
the defendant could not “know” the consequence would be the loss of driver’s license.

        It is a well settled proposition of law that refusal to submit to a blood or chemical test is
admissible as probative on the issue of guilt for DUI offenses. State v. Frasier, 914 S.W.2d 467, 473
(Tenn. 1996); State v. Morgan, 692 S.W.2d 428, 430 (Tenn. Crim. App. 1985); State v. Smith, 681
S.W.2d 569, 570 (Tenn. Crim. App. 1984). This Court has previously refused to hold that
admissibility of a driver’s refusal to submit to a blood alcohol test is conditional upon the State’s
total compliance with the implied consent law. State v. Dennie Ray Loden, No. 03C01-9311-CR-
00380, 1995 Tenn. Crim. App. LEXIS 46, at *7 (Tenn. Crim. App., at Knoxville, Jan. 19, 1995).

         The concluding remarks in the trial court’s written memorandum opinion and order simply
state, “the jury has the right to consider whether to infer guilt or to not infer guilt from the refusal
when deciding whether the defendant was driving under the influence.” However, the trial court also
barred the State “from arguing that the defendant ‘knew he would lose his license if he refused to
submit to such a test’ or statements of similar meaning.” This restriction ignores the fact that the
defendant was advised that by refusing the test he was placing his driver’s license at risk of
suspension. This is true regardless of the inaccuracy of the term of the suspension, and it served to
put the defendant on notice of consequences. Thus, the defendant’s refusal was made in light of that
knowledge and should be allowed as fair game for argument, permitting the jury to draw such
inferences as they deem proper in a charge of DUI.

       For the foregoing reasons, we reinstate count two of the indictment, the violation of implied
consent, and we remand with instructions that the State not be precluded from argument that the
defendant knew suspension of license was the sanction for refusal.




                                                           _________________________________
                                                            JOHN EVERETT WILLIAMS, JUDGE




                                                  -5-
