         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 4, 2005

                 STATE OF TENNESSEE v. LARANDA CONNER

                  Direct Appeal from the Circuit Court for Madison County
                          No. 04-407    Roy B. Morgan, Jr., Judge



                   No. W2005-00444-CCA-R3-CD - Filed December 5, 2005


The defendant, Laranda Conner, pled guilty to DUI, a Class A misdemeanor, and was sentenced to
eleven months, twenty-nine days in the county jail with all but forty-eight hours suspended. As a
condition of her guilty plea, she sought to reserve as a certified question of law whether the trial
court erred in overruling her motion to suppress the results of a blood-alcohol test taken without her
consent but pursuant to medical treatment, which allegedly constituted an illegal search and seizure.
Upon review of the record, we conclude that the defendant failed to properly reserve a question of
law. Accordingly, we dismiss the appeal.

                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L.
SMITH , JJ., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Laranda Conner.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General;
James G. Woodall, District Attorney General; and Jason White, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        On June 1, 2004, the defendant was indicted by the Madison County Grand Jury for driving
while under the influence of a drug and/or intoxicant, driving while having an alcohol concentration
of .08% or greater, reckless driving, and violation of the open container law. These charges stemmed
from a single-car accident the defendant was involved in on February 24, 2004, in Jackson,
Tennessee. The facts of the accident, as taken from the Jackson Police Department’s accident report,
are as follows:
                 Vehicle #1 w[as] involved in a single car accident where the [defendant] lost
         control of the vehicle, left the roadway, and struck a tree.

                 Upon officer’s arrival, the [defendant] was unresponsive, she was attended
         to by Jackson Madison Co EMTs. She was transported to Jackson General Hospital
         where she was treated for her injuries. They (the injuries) were not life threatening,
         but she was expected to be admitted.

                 Indications at the scene pointed towards alcohol being a contributing factor.
         There were two empty Bud Light containers in the vehicle and beer or other alcoholic
         beverage had been spilled in the front seat. Due to the extent of [the defendant’s]
         injuries, consent for a BAC could not be obtained. She was expected to be charged
         with DUI.

At the hospital, a blood-alcohol test was performed on the defendant.1 On April 8, 2004, the City
Court of Jackson entered an order for release of the defendant’s medical records to the Jackson
Police Department for “the sole purpose of investigating the alcohol related car accident involving”
the defendant.

        On September 8, 2004, the defendant filed a motion to suppress the blood-alcohol test results,
arguing her medical “records were obtained in violation of Tennessee Code Annotated 55-10-406
in that her consent was not obtained, nor was there any finding that probable cause existed to
authorize the issuance of an order releasing [her] medical records.”2 At the suppression hearing, the
defendant argued that her blood-alcohol test should be suppressed because the court order allowing


         1
           The State notes in its brief that “[t]he BAC test results the defendant sought to be suppressed are not included
in the record. The State assumes that the results indicated that the defendant was over the legal limit in that the State
sought to use such results in its prosecution of the defendant.”

         2
          At the suppression hearing, the defendant noted that the pertinent parts of section 55-10-406 that she was
relying on were section (b), which states:
                   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 evidence 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.
and section (e), which states:
                   Provided probable cause exists for criminal prosecution for the offense of driving under the
         influence of an intoxicant under § 55-10-401, nothing in this section shall affect the admissibility into
         evidence in a criminal prosecution of any chemical analysis of the alcohol or drug content of the
         defendant's blood that has been obtained while the defendant was hospitalized or otherwise receiving
         medical care in the ordinary course of medical treatment.
Tenn. Code Ann. § 55-10-406(b), (e) (2004).



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the police department to obtain her medical records from the hospital contained “no mention of any
finding of probable cause to support the issuance” of the order. On September 30, 2004, the trial
court denied the motion to suppress, finding the State “did properly obtain [the defendant’s] medical
records and that probable cause did exist for the State of Tennessee to review the records.”

       On January 31, 2005, the defendant pled guilty to DUI and was sentenced to eleven months,
twenty-nine days, with all but forty-eight hours suspended. The remaining charges were dismissed.
The DUI judgment contains the following notation:

       Def reserves the right to certify the following issue: Whether or not the trial court
       erred in overruling the defendant’s motion to suppress the results of a certain blood
       test taken without her consent and pursuant to medical treatment, because same was
       taken without notice or probable cause and therefore constituted an illegal search and
       seizure.

                                           ANALYSIS

                                    Certified Question of Law

        The defendant contends that the trial court erred in denying her motion to suppress evidence
because the blood test results were obtained without probable cause and, therefore, constituted an
illegal search and seizure. The State responds by arguing that this court has no jurisdiction to
consider the suppression issue because the defendant failed to properly preserve a certified question
of law for appeal. We agree with the State.

        Rule 37 of the Tennessee Rules of Criminal Procedure provides, in pertinent part, that an
appeal lies from any judgment of conviction upon a plea of guilty or nolo contendere if the defendant
has reserved a certified question of law:

               (i) [T]he defendant entered into a plea agreement under Rule 11(e) but
       explicitly reserved with the consent of the state and of the court the right to appeal
       a certified question of law that is dispositive of the case, and the following
       requirements are met:

               (A) the judgment of conviction, or other document to which such judgment
       refers that is filed before the notice of appeal, must contain a statement of the
       certified question of law reserved by defendant for appellate review;

               (B) the question of law must be stated in the judgment or document so as to
       identify clearly the scope and limits of the legal issue reserved;

              (C) the judgment or document must reflect that the certified question was
       expressly reserved with the consent of the state and the trial judge; and


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                (D) the judgment or document must reflect that the defendant, the state, and
       the trial judge are of the opinion that the certified question is dispositive of the case[.]

               ....

               (iv) the defendant explicitly reserved with the consent of the court the right
       to appeal a certified question of law that is dispositive of the case, and the
       requirements of subsection (i) are met, except the judgment or document need not
       reflect the state’s consent to the appeal or the state’s opinion that the question is
       dispositive.

Tenn. R. Crim. P. 37(b)(2)(i), (iv). In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our supreme
court emphasized that the burden is on the defendant to ensure that the conditions for properly
preserving a certified question of law pursuant to Rule 37 have been met:

               This is an appropriate time for this Court to make explicit to the bench and
       bar exactly what the appellate courts will hereafter require as prerequisites to the
       consideration of the merits of a question of law certified pursuant to Tenn. R. Crim.
       P. 37(b)(2)(i) or (iv). Regardless of what has appeared in prior petitions, orders,
       colloquy in open court or otherwise, the final order or judgment from which the time
       begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of the
       dispositive certified question of law reserved by defendant for appellate review and
       the question of law must be stated so as to clearly identify the scope and the limits
       of the legal issue reserved. . . . Also, the order must state that the certified question
       was expressly reserved as part of a plea agreement, that the State and the trial judge
       consented to the reservation and that the State and the trial judge are of the opinion
       that the question is dispositive of the case. Of course, the burden is on defendant to
       see that these prerequisites are in the final order and that the record brought to the
       appellate courts contains all of the proceedings below that bear upon whether the
       certified question of law is dispositive and the merits of the question certified. No
       issue beyond the scope of the certified question will be considered.

Id. at 650. In State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003), our supreme court rejected
the argument that substantial compliance with Rule 37 is enough to reserve a certified question of
law, explaining:

              Accordingly, our prior decisions demonstrate that we have never applied a
       substantial compliance standard to the Preston requirements as urged by the
       defendant in this case. To the contrary, we have described the requirements in
       Preston for appealing a certified question of law under Rule 37 of the Tennessee
       Rules of Criminal Procedure as "explicit and unambiguous." [State v. Irwin, 962
       S.W.2d 477, 479 (Tenn. 1998); State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn.
       1996)]. Moreover, we agree with the State that a substantial compliance standard


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       would be very difficult to apply in a consistent and uniform manner, and therefore
       would conflict with the very purpose of Preston. We therefore reject the defendant's
       argument that substantial compliance with the requirements set forth in Preston is all
       that is necessary in order to appeal a certified question of law.

        Although required by Rule 37(b)(2)(i)(C)-(D), the judgment in this case neither reflected that
the certified question was expressly reserved with the consent of the State and the trial court nor that
the defendant, the State, and the trial court were of the opinion that the question was dispositive of
the case. Rule 37(b)(2)(iv), which does not require the judgment to reflect the State’s consent to
appeal or the State’s opinion that the question is dispositive of the case, does not apply in this case
because the defendant entered into a plea agreement with the State. See Tenn. R. Crim. P. 37,
Committee Cmt. to 1984 Amendment (explaining that “[t]he amendment to section (b) allows the
defendant to appeal a certified question of law without consent of the district attorney. This
provision would only apply where there was no plea agreement and the defendant pled to the charge
with the court imposing sentence.”).

        In Armstrong, 126 S.W.3d at 912, our supreme court concluded that a trial’s court’s remedial
action to correct deficiencies in an original judgment was sufficient to satisfy the Preston
requirements when the trial court’s corrective order was entered before the notice of appeal was
filed, and, thus, while the trial court maintained jurisdiction over the case. In this case, there is
nothing in the record to reflect that any corrective order, satisfying the Preston requirements, was
entered before the notice of appeal was filed. Under such circumstances, we must conclude that the
defendant did not meet the stringent requirements for properly certifying a question of law for
appeal. Accordingly, we dismiss the appeal.

                                          CONCLUSION

       We conclude that the defendant has failed to satisfy the mandatory requirements for certifying
a question of law for appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2).
Accordingly, we dismiss the appeal.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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