        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   May 13, 2014 Session

             STATE OF TENNESSEE v. CHARLES A. KENNEDY

                 Appeal from the Circuit Court for Williamson County
                   No. II-CR096724      James G. Martin, III, Judge




                 No. M2013-02207-CCA-R9-CD - Filed October 3, 2014


In this interlocutory appeal by the State, the State challenges the trial court’s suppression of
the results of blood alcohol testing conducted on the defendant’s blood pursuant to Tennessee
Code Annotated section 55-10-406(f)(2) (Supp. 2012), claiming that the trial court erred by
declaring Code section 55-10-406(f)(2) unconstitutional and by ruling that no exception to
the warrant requirement existed to justify the warrantless taking of the defendant’s blood.
Because Code section 55-10-406(f)(2) does not mandate the warrantless taking of a blood
sample, the trial court erred by declaring the statute unconstitutional, and that portion of the
judgment is reversed. Because no exception to the warrant requirement justified the
warrantless taking of the defendant’s blood in this case, however, we affirm the trial court’s
order suppressing the results of blood alcohol testing conducted on the sample.

  Tenn. R. App. P. 9; Judgment of the Circuit Court Reversed in Part; Affirmed in
                                       Part

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Kim R. Helper; District Attorney General; and Carlin Hess, Assistant District
Attorney General, for the appellant, State of Tennessee.

Benjamin C. Signer, Franklin, Tennessee, for the appellee, Charles A. Kennedy.

                                          OPINION

             The Williamson County grand jury charged the defendant with one count of
driving under the influence (“DUI”), one count of driving while the blood alcohol
concentration (“BAC”) in the defendant’s blood was .08 percent or more (“DUI per se”), one
count of driving while his driver’s license was revoked, and third offense DUI. Prior to trial,
the defendant moved the trial court to suppress the results of blood alcohol testing conducted
on blood drawn against his will. The defendant asserted that Code section 55-10-406(f)(2),
the statute the State had used to justify the blood draw, was unconstitutional and that no
exception to the warrant requirement justified the warrantless blood draw. The State claimed
that exigent circumstances justified the warrantless taking of the defendant’s blood.

               At the August 19, 2013 hearing on the defendant’s motion, Fairview City
Police Department Officer Shawn Malhoit testified that at approximately 12:30 a.m. on May
8, 2012, she was “riding with Sergeant [Pat] Stockdale on patrol” when she and Sergeant
Stockdale observed a red pickup truck being driven by the defendant, whose driver’s license
Sergeant Stockdale knew to be revoked. Sergeant Stockdale activated his emergency
equipment, and the officers “ended up following [the defendant] on to his residence where
he stopped in his driveway.” Officer Malhoit recalled that the defendant’s residence “was
less than a mile, more than half a mile” from the location where Sergeant Stockdale activated
his emergency equipment. After Sergeant Stockdale confirmed that the defendant’s driver’s
license had been revoked, the defendant was placed under arrest. She said that the defendant
was arrested at approximately 12:50 a.m.

                Officer Malhoit observed the defendant’s “eyes to be watery,” and she “could
smell alcohol coming from his person,” so she asked Officer William Burgess, who had
arrived at the scene in the interim, to transport the defendant to the police department “where
[they] would have a level ground to conduct field sobriety testing.” She explained that she
asked Officer Burgess to transport the defendant because Sergeant Stockdale’s “vehicle
doesn’t have a cage for a transport.” Officer Malhoit and Sergeant Stockdale followed in
Sergeant Stockdale’s vehicle. She said that they arrived at the police station at approximately
1:00 a.m. and that they immediately “gave [the defendant] the opportunity to do the
standardized field sobriety test.” She said that in response to the request, the defendant
“started on another subject and ultimately ended up with a refusal.” She recalled that his
refusal came “[n]ot more than five minutes” after their request. At that point, the defendant
“was taken into the holding cells” so that the officers “could get [the] implied consent
paperwork together and go back and do it with a witness.”

              Officer Malhoit testified that Officer Burgess read the implied consent form
to the defendant while Officer Malhoit acted as a witness. After the form was read to him,
the defendant refused to submit to the testing of his BAC at 1:17 a.m., and “[t]he next course
of business was to, of course, let him know that this was going to be a mandatory blood
draw.” She explained, “Due to the fact that [the defendant] has had prior D.U.I.’s and a
revoked license, it was required that he have blood drawn even though he did refuse.” She

                                              -2-
said that the officers told the defendant that he would be transported to Williamson County
Medical Center in Franklin for the purpose of having his blood drawn. In response, the
defendant said “[t]hat police would have to take this blood from him by force.” She
described the defendant as “just agitated, upset,” and “[b]elligerent.”

              Officer Malhoit recalled that Officer Phil Jarosz drove her and the defendant
to the Williamson County Medical Center. They left the Fairview Police Department at
approximately 1:30 a.m. and arrived at the Williamson County Medical Center at “right about
two o’clock.” When they arrived, they placed the defendant “into a seclusion room to wait
for a phlebotomist to come in to draw the blood from him.” She described the defendant’s
demeanor as “agitated, belligerent, rude.” The defendant, she said, made it clear that he did
not consent to the taking of his blood. She testified that it took “[p]robably close to thirty
minutes” for the phlebotomist to arrive, and the defendant’s blood was drawn at 2:30 a.m.

               Officer Malhoit testified that in May 2012 it was not the policy of the Fairview
Police Department to obtain search warrants for the drawing of blood for blood alcohol
testing. She said that at that time she never considered obtaining a search warrant before
taking the defendant for the blood draw because it was her “understanding of the implied
consent law, that it would be mandatory.” She explained that, had she sought to obtain a
search warrant, she would have had to appear in person before the magistrate at the
Williamson County Jail to swear out the warrant. She said that her absence would have
deprived the Fairview Police Department of the service of one of the four officers on duty
that night. In addition, Officer Malhoit, who was new to the department in May 2012, was
not permitted to drive a patrol car, which meant that another officer would have had to drive
her to the Williamson County Jail to obtain the warrant, meaning that two of the four officers
on duty and one of the three patrol cars would have been occupied by the process of
obtaining the warrant. She said that it would have taken more time to secure a warrant to
obtain the defendant’s blood.

               During cross-examination, Officer Malhoit testified that there was “not very
much” procedural difference between obtaining a search warrant for a blood draw and
obtaining an arrest warrant or any other type of search warrant. Officer Malhoit conceded
that the Fairview Police Department had recently changed its department policy to require
officers to obtain search warrants for blood draws in DUI cases. She acknowledged that
although she had not had occasion to obtain such a warrant, other officers in the department
had, and they had had no trouble doing so. She said that the process required two patrol cars,
explaining, “We have to get one in route to get ready at the hospital and one in route to the
magistrate’s office at the same time.” She said that, as a result, the streets of Fairview were
less safe.



                                              -3-
             During redirect-examination, Officer Malhoit clarified that at the time of the
defendant’s arrest, she was not permitted to drive a patrol car because she was new to the
department.

             Fairview Police Department Sergeant Pat Stockdale testified that on May 8,
2012, he and Officer Malhoit rode together in his vehicle so that he “could observe her” in
conjunction with his duties as her supervising officer. He explained that at that time, Officer
Malhoit “was a functioning officer” who was participating “in the field training officer
program.” Sergeant Stockdale testified that after Officer Malhoit arrested the defendant, he
“remained in Fairview on patrol” while “Officer Malhoit proceeded on with whatever she
did.”

              During cross-examination, Sergeant Stockdale said that the Fairview Police
Department had changed its policy to require officers to obtain search warrants before
obtaining blood samples from DUI suspects.

               The defendant presented the testimony of Williamson County General Sessions
Court Magistrate Marcia Hynes. Ms. Hynes testified that she had issued “probably a dozen”
search warrants during her career. She said that officers could either come to the
magistrate’s office and complete the warrant paperwork or generate the paperwork on their
cruiser’s computer, if the cruiser is so equipped. Ms. Hynes said that when an officer comes
in for a search warrant, she or any other magistrate “would automatically drop what we were
doing so that we could give attention to” the warrant. She said that the entire process would
take “[p]robably, twenty minutes to an hour.” She said that the magistrates “try to get them
in and out by giving direct attention to whatever information’s been provided to us on that
search warrant” but that they did “have to make copies.” She said that the overnight shift
could be very busy. Ms. Hynes testified that “blood draw search warrants” take precedence
over other warrants.

                During cross-examination by the State, Ms. Hynes testified that before April
26, 2013, no one in her office had issued a search warrant for a blood draw in a DUI case.
On that date, she and others in her office underwent training “[t]o properly know what we
were doing filling out a search warrant.” She said that the officer is responsible for preparing
the warrant and that the magistrates provide only the signature and the time. Ms. Hynes
testified that her office does not accept electronic or telephonic search warrants. When asked
how she might have proceeded had she been asked to issue a search warrant for a blood draw
in May 2012, she said, “I don’t know because we wouldn’t have - we had no idea that was
a procedure. . . . But I mean blood draws were all new to us.” She said that it was “pretty
much” the case that only one magistrate works the overnight shift.



                                              -4-
             During redirect-examination, Ms. Hynes said that no procedural difference
existed between issuing a warrant to search real property and a warrant to obtain a blood
sample. She said that the form was “a little bit different.”

               At the conclusion of this testimony, the State argued that time was “a
consideration combined with the natural dissipation of alcohol in the blood stream.” The
prosecutor added that Officer Malhoit had no “knowledge about obtaining a search warrant.”
The State averred that these factors combined to create exigent circumstances that justified
the warrantless search in this case. The prosecutor also argued that obtaining a search
warrant was not only impractical “but nearly impossible . . . without effectively undermining
the quality of the [S]tate’s evidence.” The defendant argued that no exigency existed.

               The trial court took the motion under advisement, and, via a written order,
granted the defendant’s motion to suppress the evidence on grounds that the warrantless
search was not justified by any exception to the warrant requirement. Specifically, the trial
court concluded that the defendant did not consent to the search in this case. Addressing that
version of the implied consent law in effect at the time of the defendant’s arrest, the trial
court noted that the statute made the taking of the defendant’s blood mandatory as a
consequence of his having been previously convicted of DUI. The court ruled that because
the statute created a per se exception to the warrant requirement, it violated the state and
federal constitutions.

              In this interlocutory appeal, the State asks us to reverse the ruling of the trial
court declaring Code section 55-10-406(f)(2) unconstitutional and suppressing the results of
testing on the defendant’s blood. At the time of the defendant’s arrest, Tennessee Code
Annotated section 55-10-406 provided, in pertinent part, as follows:

                      (a)(1) Any person who drives a motor vehicle in this state
              is deemed to have given consent to a test or tests for the purpose
              of determining the alcoholic content of that person’s blood, a
              test or tests for the purpose of determining the drug content of
              the person’s blood, or both tests. However, no such test or tests
              may be administered pursuant to this section, unless conducted
              at the direction of a law enforcement officer having reasonable
              grounds to believe the person was driving while under the
              influence of alcohol, a drug, any other intoxicant or any
              combination of alcohol, drugs, or other intoxicants as prohibited
              by § 55-10-401, or was violating § 39-13-106, § 39-13-213(a)(2)
              or § 39-13-218.



                                              -5-
                              ....

                             (4) (A) If such person, having been placed under arrest
                     and then having been requested by a law enforcement officer to
                     submit to either or both tests, and having been advised of the
                     consequences for refusing to do so, refuses to submit, the test or
                     tests to which the person refused shall not be given, and the
                     person shall be charged with violating this subsection (a).

                              ....

                             (f)(2) If a law enforcement officer has probable cause to
                     believe that the driver of a motor vehicle has committed a
                     violation of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 and
                     has been previously convicted of § 39-13-213(a)(2), §
                     39-13-218 or § 55-10-401 the officer shall cause the driver to be
                     tested for the purpose of determining the alcohol or drug content
                     of the driver’s blood. The test shall be performed in accordance
                     with the procedure set forth in this section and shall be
                     performed regardless of whether the driver does or does not
                     consent to the test.

T.C.A. § 55-10-406(a)(1), (a)(4)(A), (f)(2) (Supp. 2012).1 The State argues that Code section
55-10-406(f)(2) does not create an unconstitutional per se exception to the federal warrant
requirement and that, in any event, exigent circumstances justified the taking of the
defendant’s blood in this case. The defendant claims that the trial court correctly deemed
Code section 55-10-406(f)(2) unconstitutional and that exigent circumstances did not exist.

                A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting evidence
are matters entrusted to the trial judge, and this court must uphold a trial court’s findings of
fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d at 23;
see also Tenn. R. App. P. 13(d). The application of the law to the facts, however, is
reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). We review
the issue in the present appeal with these standards in mind.


          1
              The provisions for mandatory testing under the current version of the statute are found in subsection
(d)(5).

                                                          -6-
               Both the state and federal constitutions offer protection from unreasonable
searches and seizures; the general rule is that a warrantless search or seizure is presumed
unreasonable and any evidence discovered subject to suppression. See U.S. Const. amend.
IV (“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .”); Tenn. Const. art. I, § 7
(“That the people shall be secure in their persons, houses, papers and possessions, from
unreasonable searches and seizures . . . .”). “[T]he most basic constitutional rule in this area
is that ‘searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well-delineated exceptions.’” Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also
State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). “The exceptions are ‘jealously and
carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.’” Coolidge, 403 U.S. at 455
(quoting Jones v. United States, 357 U.S. 493, 499 (1958), and McDonald v. United States,
335 U.S. 451, 456 (1948)). “We are not dealing with formalities. The presence of a search
warrant serves a high function.” McDonald, 335 U.S. at 455. Thus, a trial court necessarily
indulges the presumption that a warrantless search or seizure is unreasonable, and the burden
is on the State to demonstrate that one of the exceptions to the warrant requirement applied
at the time of the search or seizure. See, e.g., Missouri v. McNeely, 133 S. Ct. 1552, 1558
(2013) (“Our cases have held that a warrantless search of the person is reasonable only if it
falls within a recognized exception.”).

              The drawing of the defendant’s blood most certainly constituted a search for
purposes of the fourth amendment. “Such an invasion of bodily integrity implicates an
individual’s ‘most personal and deep-rooted expectations of privacy.’” McNeely, 133 S. Ct.
at 1558 (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)); see also Skinner v. Railway
Labor Executives’ Assn., 489 U.S. 602, 616 (1989) (“We have long recognized that a
‘compelled intrusio[n] into the body for blood to be analyzed for alcohol content’ must be
deemed a Fourth Amendment search.” (quoting Schmerber v. California, 384 U.S. 757,
767-68 (1966) (alteration in Schmerber))). Accordingly, we must determine whether the
taking of the defendant’s blood without a warrant was justified by an exception to the
warrant requirement.

               The proof adduced at the suppression hearing clearly indicates that Officer
Malhoit believed that Tennessee Code Annotated section 55-10-406(f)(2) operated as an
exception to the warrant requirement in this case. She testified that, after the defendant
refused to submit to blood alcohol testing, she told him that his blood would be drawn against
his will, explaining, “Due to the fact that [the defendant] has had prior D.U.I.’s and a revoked
license, it was required that he have blood drawn even though he did refuse.” Officer

                                              -7-
Malhoit indicated that it was her belief at the time of the defendant’s arrest that because Code
section 55-10-406(f)(2) mandated the taking of the defendant’s blood, she did not need not
a warrant to obtain the sample. Indeed, she made no effort to obtain a warrant.

               The trial court agreed that because Code section 55-10-406(f)(2) mandated the
taking of a blood sample in this case, it necessarily dispensed with the warrant requirement
in those cases that met the statutory prerequisites. The court concluded that because Code
section 55-10-406(f)(2) created an impermissible per se exception to the warrant
requirement, it was unconstitutional.

              Because courts must “not decide constitutional questions unless resolution is
absolutely necessary to determining the issues in the case and adjudicating the rights of the
parties.’” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (State v. Taylor, 70 S.W.3d
717, 720 (Tenn. 2002)), we necessarily begin our analysis not with the constitutionality of
Code section 55-10-406(f)(2) but by determining whether the warrantless taking of the
defendant’s blood against his will was justified by one of the generally accepted exceptions
to the warrant requirement.

              The generally recognized exceptions to the Fourth Amendment warrant
requirement include “search incident to arrest, plain view, stop and frisk, hot pursuit, search
under exigent circumstances, and . . . . consent to search.” State v. Cox, 171 S.W.3d 174, 179
(Tenn. 2005) (citations omitted). The State argues that exigent circumstances existed to
justify the warrantless search in this case and that the defendant impliedly consented to the
blood draw in this case.

                                   Exigent Circumstances

               “To determine whether a law enforcement officer faced an emergency that
justified acting without a warrant, this Court looks to the totality of circumstances.”
McNeely, 133 S. Ct. at 1559 (citing Brigham City v. Stuart, 547 U.S. 398, 406 (2006); Illinois
v. McArthur, 531 U.S. 326, 331 (2001); Richards v. Wisconsin, 520 U.S. 385, 391-96 (1997);
Cupp v. Murphy, 412 U.S. 291, 296 (1973)). The Supreme Court explained:

              We apply this “finely tuned approach” to Fourth Amendment
              reasonableness in this context because the police action at issue
              lacks “the traditional justification that . . . a warrant . . .
              provides.” Atwater v. Lago Vista, 532 U.S. 318, 347 n. 16
              (2001). Absent that established justification, “the fact-specific
              nature of the reasonableness inquiry,” Ohio v. Robinette, 519
              U.S. 33, 39 (1996), demands that we evaluate each case of

                                              -8-
               alleged exigency based “on its own facts and circumstances.”
               Go-Bart Importing Co. v. United States, 282 U.S. 344, 357
               (1931).

McNeely, 133 S. Ct. at 1559.

               Prior to the ruling in McNeely, many courts, including this one, had concluded
that the natural dissipation of alcohol in the blood over time created exigent circumstances
in every case “involving intoxicated motorists.” State v. Michael A. Janosky, No.
M1999-02574-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App., Nashville, Sept. 29, 2000). In
McNeely, however, the Supreme Court, considering the question “whether the natural
metabolization of alcohol in the bloodstream presents a per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing
in all drunk-driving cases” concluded “that it does not” and held “consistent with general
Fourth Amendment principles, that exigency in this context must be determined case by case
based on the totality of the circumstances.” McNeely, 133 S. Ct. at 1556. The Court ruled,

               In those drunk-driving investigations where police officers can
               reasonably obtain a warrant before a blood sample can be drawn
               without significantly undermining the efficacy of the search, the
               Fourth Amendment mandates that they do so. See McDonald,
               335 U.S. at 456 (“We cannot . . . excuse the absence of a search
               warrant without a showing by those who seek exemption from
               the constitutional mandate that the exigencies of the situation
               made that course imperative[.]”).

McNeely, 133 S. Ct. at 1561. The Court observed that “[w]hile the desire for a bright-line
rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad
categorical approach that would dilute the warrant requirement in a context where significant
privacy interests are at stake.” Id. at 1564. The Court recognized “the general importance
of the government’s interest in this area” but concluded that the government’s interest did
“not justify departing from the warrant requirement without showing exigent circumstances
that make securing a warrant impractical in a particular case.” Id. at 1565. The Court
acknowledged that the natural dissipation of alcohol over time could be included as a factor
in the examination of the totality of the circumstances. See id. at 1568 (“It suffices to say that
the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among
the factors that must be considered in deciding whether a warrant is required.”)

             In this case, Officer Malhoit and Sergeant Stockdale stopped the defendant at
approximately 12:30 a.m., and, after confirming that the defendant’s driver’s license had

                                               -9-
been revoked and that he appeared to be intoxicated, they placed the defendant in custody
at approximately 12:50 a.m. At some point, Officer William Burgess arrived at the scene,
and he drove the defendant to the police department for the purpose of conducting field
sobriety tests on more level ground. Officer Malhoit and Sergeant Stockdale followed in
Sergeant Stockdale’s vehicle.

               They arrived at the Fairview Police Department at approximately 1:00 a.m.,
and the defendant refused to perform the field sobriety tests. The record indicates that
Sergeant Stockdale, Officer Malhoit, and Officer Burgess were all present at the Fairview
Police Department during this time. After he refused to perform the field sobriety tests, the
defendant was then taken inside, and Officer Malhoit completed the “implied consent
paperwork.” After Officer Burgess read the implied consent form to the defendant, he
refused all forms of blood alcohol testing at 1:17 a.m. Officer Malhoit was present during
this exchange. After the defendant refused blood alcohol testing, Officer Burgess told the
defendant “[t]hat police would have to take this blood by force.”

               Officer Malhoit recalled that Officer Jarosz transported her and the defendant
to the Williamson County Medical Center. The record does not establish when Officer
Jarosz arrived at the Fairview Police Department or why he, rather than Officer Burgess,
transported Officer Malhoit and the defendant to the hospital. In any event, Officer Malhoit
recalled that they left the police department at approximately 1:30 a.m. and arrived at the
hospital “right around two o’clock.” After a 30 minute wait for a phlebotomist, the
defendant’s blood was drawn at 2:30 a.m., two hours after police stopped his vehicle. During
this last 30-minute period, both Officers Malhoit and Jarosz stayed with the defendant.

               Officer Malhoit candidly admitted that she made no attempt to obtain a search
warrant, saying that she believed Code section 55-10-406(f)(2) authorized the warrantless
taking of the defendant’s blood. She testified that, at the time of the defendant’s arrest, she
had applied for search warrants in other cases, but she had never applied for a search warrant
to draw blood in a DUI case. She said that, because she was a provisional officer at the time,
she was not authorized to drive a patrol car, which meant that another officer would have had
to drive her to the Williamson County Jail to apply for a warrant in this case. She admitted
that, since the defendant’s arrest, the Fairview Police Department had changed its policy to
require that search warrants be obtained for mandatory blood draws in DUI cases. Under the
new policy, one officer drives the suspect to the hospital while the other goes to secure the
warrant. She said that implementing that procedure in the defendant’s case would have left
a single officer on patrol.

             Ms. Hynes testified that officers were required to appear in person to obtain
warrants in Williamson County but that the officers could generate warrant paperwork in

                                             -10-
those patrol cars equipped with computers. She said that the process to obtain a search
warrant generally took between 20 minutes and an hour. Ms. Hynes emphasized that the
magistrates attempted to work as quickly as possible to get the officers “in and out.” She
said that at the time of the defendant’s arrest, no procedure existed for issuing a search
warrant for a blood draw in a DUI case. She testified that although she was not working on
the night of the defendant’s arrest, it was the general practice of the Williamson County Jail
to have only a single magistrate working the third shift.

             The trial court concluded that the State failed to establish that exigent
circumstances existed to justify the warrantless taking of the defendant’s blood, and, based
on McNeely, we agree with the judgment of the trial court.

               We recognize that, in this case as in McNeely, the State bore a particularly
difficult burden in trying to establish the existence of exigent circumstances when the exigent
circumstances exception was not the original justification for the warrantless blood draw.
See McNeely, 133 S. Ct. at 1567 (observing that the arresting officer “made no effort to
obtain a search warrant before conducting the blood draw even though he was ‘sure’ a
prosecuting attorney was on call and even though he had no reason to believe that a
magistrate judge would have been unavailable”). That said, the record simply does not show
any exigency sufficient to justify Officer Malhoit’s failure to obtain a warrant before causing
the defendant’s blood to be drawn in this case.

                The State argues that the natural dissipation of alcohol in the defendant’s blood
combined with the additional time required to obtain a search warrant resulted in exigent
circumstances that justified the warrantless taking of the defendant’s blood. The record,
however, does not support the State’s argument that obtaining a warrant in this case would
have required significantly more time than the warrantless blood draw. Officer Malhoit
testified that, because she was not permitted to drive a patrol car at the time of the
defendant’s arrest, another officer would have had to transport her to the Williamson County
Jail to obtain the search warrant. She said that having one officer transport her to the jail
while another transported the defendant to the hospital would have resulted in only one
officer patrolling the streets of Fairview, a circumstance she claimed never happened. She
iterated that the “absolute minimum” number of cars patrolling Fairview at any given time
“is two.” This testimony, however, is belied by the facts in this case.

                The record establishes that, at the time that the defendant refused to perform
field sobriety tests, Officers Malhoit and Burgess along with Sergeant Stockdale were at the
Fairview Police Department. This is true because Sergeant Stockdale drove Officer Malhoit
to the police department while Officer Burgess transported the defendant. Sergeant
Stockdale testified that he went back on patrol after the defendant’s arrest, but Officer

                                              -11-
Malhoit indicated that he was present during the defendant’s refusal to perform field sobriety
tests. She said that she asked Sergeant Stockdale to speak with the defendant after the
defendant complained of the tightness of his handcuffs. Given the testimony by Officer
Malhoit and Sergeant Stockdale that only four officers were on duty that night, the presence
of the three officers at the police department during the defendant’s refusal to submit to field
sobriety tests necessarily meant that a single officer, Officer Jarosz, remained on patrol. The
record establishes that both Officers Malhoit and Burgess remained at the police department
after the defendant refused field sobriety tests and at least until the defendant refused blood
alcohol testing. Indeed, Officer Burgess explained to the defendant that his blood would be
drawn by force. The record does not indicate when Officer Jarosz arrived at the police
department, only that he was there in time to transport Officer Malhoit and the defendant to
the hospital at 1:30 a.m.

              The State fails to explain why it would have been impossible for Officer
Burgess to transport the defendant to the hospital while Sergeant Stockdale transported
Officer Malhoit to the jail to obtain a search warrant, leaving Officer Jarosz on patrol. The
only statement offered on this point was that the streets of Fairview would be “less safe.”
Such an arrangement, however, would not have left the streets of Fairview any less safe than
they were during the defendant’s refusal to perform field sobriety tests. The State also does
not explain why it would have been impossible for Officer Jarosz to transport the defendant
to the hospital while Officer Burgess transported Officer Malhoit to the jail to obtain a
warrant, leaving Sergeant Stockdale on patrol. That arrangement would have mimicked the
circumstances when Officers Malhoit, Burgess, and Jarosz were at the police department
following the defendant’s refusal to submit to blood alcohol testing.

               That Officer Malhoit may not have known how to apply for a warrant for a
blood draw in a DUI case should not, in our view, weigh in favor of a finding of exigent
circumstances in this case. Officer Malhoit acknowledged having applied for search
warrants in other cases, and she testified that the process for applying for a blood draw search
warrant was not that different. Additionally, Ms. Hynes testified that a warrant could be
obtained from the Williamson County Jail in as little as 20 minutes and that the magistrates
gave priority to blood draw search warrants. Although the State presented testimony about
the magistrates’ lack of experience with search warrants in DUI cases at the time of the
defendant’s arrest, no testimony suggested that obtaining a warrant on the night of the
defendant’s arrest would have taken a greater amount of time than the 20 minutes to one
hour common in other cases.

               As the Supreme Court observed, “other factors present in an ordinary traffic
stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate
judge, may affect whether the police can obtain a warrant in an expeditious way and therefore

                                              -12-
may establish an exigency that permits a warrantless search.” The State, however, did not
present proof of the availability of a magistrate at the time of the defendant’s arrest. The
defendant refused voluntary blood alcohol testing at 1:17 a.m., and his blood was not drawn
until 2:30 a.m. Ms. Hynes testified that it was “[p]retty much” the case that a single
magistrate worked the overnight shift and that when she worked that shift, the magistrates
“were very busy” on some nights. No testimony, however, established the exact number of
magistrates working on the night of the defendant’s arrest or the relative business of the
night.

             In sum, the State simply failed to establish the existence of exigent
circumstances justifying the warrantless blood draw in this case.

                                             Consent

                The State also claims that the defendant, by virtue of operating a motor vehicle
on the roadways in this state, impliedly consented to the warrantless blood draw. The State
argues that although our implied consent statute generally provides that blood alcohol testing
will not be conducted when a driver refuses the test, the right to refuse warrantless blood
alcohol testing is statutory in nature and can be limited as the legislature sees fit. Essentially,
the State contends that the implied consent provided by driving a motor vehicle cannot be
revoked when certain statutory criteria are met, such as the criteria in Code section 55-10-
406(f)(2). The State has waived our consideration of this argument, however, by failing to
present it in the trial court. “An issue not raised at trial may not be raised for the first time
on appeal.” In re Estate of Smallman, 398 S.W.3d 134, 148 (Tenn. 2013); see also, e.g.,
Tenn. R. App. P. 36(a) (“[R]elief may not be granted in contravention of the province of the
trier of fact. Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); Welch v. Bd. of Prof’l Responsibility for
the Supreme Court of Tenn., 193 S.W.3d 457, 465 (Tenn. 2006) (“‘It has long been the
general rule that questions not raised in the trial court will not be entertained on appeal.’”
quoting Adoption of Female Child, E.N.R., 42 S.W.3d 26, 32-33 (Tenn. 2001)); State v.
Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005) (“When an issue is raised for the first
time on appeal, it is typically waived.”). Because the State failed to present this argument
in the trial court, the trial court did not have the opportunity to pass on it, and we will not
consider it.

                           Tennessee Code Annotated § 55-10-406

              Because we can find no other justification for the warrantless taking of the
defendant’s blood, we turn to the justification used by Officer Malhoit, Code section 55-10-

                                               -13-
406(f)(2). As previously indicated, at the time of the defendant’s arrest, Tennessee Code
Annotated section 55-10-406 provided, in pertinent part, as follows:

                      (a)(1) Any person who drives a motor vehicle in this state
              is deemed to have given consent to a test or tests for the purpose
              of determining the alcoholic content of that person’s blood, a
              test or tests for the purpose of determining the drug content of
              the person’s blood, or both tests. However, no such test or tests
              may be administered pursuant to this section, unless conducted
              at the direction of a law enforcement officer having reasonable
              grounds to believe the person was driving while under the
              influence of alcohol, a drug, any other intoxicant or any
              combination of alcohol, drugs, or other intoxicants as prohibited
              by § 55-10-401, or was violating § 39-13-106, § 39-13-213(a)(2)
              or § 39-13-218.

                     ....

                      (4) (A) If such person, having been placed under arrest
              and then having been requested by a law enforcement officer to
              submit to either or both tests, and having been advised of the
              consequences for refusing to do so, refuses to submit, the test or
              tests to which the person refused shall not be given, and the
              person shall be charged with violating this subsection (a).

                     ....

                      (f)(2) If a law enforcement officer has probable cause to
              believe that the driver of a motor vehicle has committed a
              violation of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 and
              has been previously convicted of § 39-13-213(a)(2), §
              39-13-218 or § 55-10-401 the officer shall cause the driver to be
              tested for the purpose of determining the alcohol or drug content
              of the driver’s blood. The test shall be performed in accordance
              with the procedure set forth in this section and shall be
              performed regardless of whether the driver does or does not
              consent to the test.

T.C.A. § 55-10-406(a)(1), (a)(4)(A), (f)(2).



                                     -14-
              Officer Malhoit believed that the statute operated as an exception to the warrant
requirement, and the trial court agreed. The trial court ruled that because the legislature
could not create by statute a per se exception to the warrant requirement, the statute was
unconstitutional.

               The most basic principle of statutory construction is “‘to ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.’” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678
(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative
intent is determined ‘from the natural and ordinary meaning of the statutory language within
the context of the entire statute without any forced or subtle construction that would extend
or limit the statute’s meaning.’” Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)
(quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the statutory
language is clear and unambiguous, we apply the plain language in its normal and accepted
use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State v. Nelson, 23
S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous that we may
reference the broader statutory scheme, the history of the legislation, or other sources.” In
re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn. Mun. League
Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)). “Further, the language of a statute
cannot be considered in a vacuum, but ‘should be construed, if practicable, so that its
component parts are consistent and reasonable.’” In re Estate of Tanner, 295 S.W.3d 610,
614 (Tenn. 2009) (quoting Marsh v. Henderson, 424 S.W.2d 193, 196 (Tenn. 1968)). This
court must also “presume that . . . the General Assembly ‘did not intend an absurdity.’” Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010) (quoting Fletcher v. State, 951
S.W.2d 378, 382 (Tenn. 1997)).

               Additionally, the courts of this state must uphold the constitutionality of
statutes where possible, see Dykes v. Hamilton County, 191 S.W.2d 155, 159 (Tenn. 1945);
State v. Joyner, 759 S.W.2d 422, 425 (Tenn. Crim. App. 1987), always beginning review of
the constitutionality of a statute “with the presumption that an act of the General Assembly
is constitutional,” Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (citing State v.
Robinson, 29 S.W.3d 476, 479-80 (Tenn. 2000); Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn.
1997)). Moreover, a reviewing court must “‘indulge every presumption and resolve every
doubt in favor of the statute’s constitutionality.’” Gallaher, 104 S.W.3d at 459 (quoting
Taylor, 70 S.W.3d at 721).

              To be sure, Code section 55-10-406(f)(2) mandated the taking of the
defendant’s blood in this case. See T.C.A. § 55-10-406(f)(2) (2012) (“[T]he officer shall
cause the driver to be tested for the purpose of determining the alcohol or drug content of the
driver’s blood. The test . . . shall be performed regardless of whether the driver does or does

                                             -15-
not consent to the test.”) (emphasis added). The statute is silent, however, with regard to
whether the officer must obtain a search warrant before causing the driver’s blood to be
tested. Importantly, a conclusion that the legislature intended to create an exception to state
and federal constitutional warrant requirements would require us to declare the statute
unconstitutional. As the Supreme Court has observed, “It is clear, of course, that no Act of
Congress can authorize a violation of the Constitution.” Almeida-Sanchez v. United States,
413 U.S. 266, 272 (1973). The same axiom applies to our general assembly. See Ybarra v.
Illinois, 444 U.S. 85, 96 n.11 (1979) (“The statute purports instead to authorize the police in
some circumstances to make searches and seizures without probable cause and without
search warrants. This state law, therefore, falls within the category of statutes purporting to
authorize searches without probable cause, which the Court has not hesitated to hold invalid
as authority for unconstitutional searches.”); see also Michigan v. DeFillippo, 443 U.S. 31,
39 (1979) (“We have held that the exclusionary rule required suppression of evidence
obtained in searches carried out pursuant to statutes, not previously declared unconstitutional,
which purported to authorize the searches in question without probable cause and without
a valid warrant.”). Because we must “presume that the General Assembly knows the ‘state
of the law,’” Lee Med., Inc., 312 S.W.3d at 527 (quoting Murfreesboro Med. Clinic, P.A. v.
Udom, 166 S.W.3d 674, 683 (Tenn. 2005)), we presume in this case that the legislature was
aware that it could not circumvent Fourth Amendment protections by legislative enactment.
In consequence, we conclude that the legislature did not intend for Code section 55-10-
406(f)(2) to operate as a blanket exception to the warrant requirement.

              The Texas Court of Appeals, sitting en banc, interpreted Texas’s mandatory
blood draw statute similarly. In Kenneth Lee Douds v. State of Texas, the court ruled that the
warrantless taking of Douds’s blood for blood alcohol testing, presumably under the
authorization provided by Texas’s implied consent statute, violated Douds’s Fourth
Amendment rights. See Kenneth Lee Douds v. State of Texas, No. 14-12-00642-CR, slip op.
at 1 (Tex. App. June 5, 2014). The Texas statute at issue provided:

              A peace officer shall require the taking of a specimen of the
              person’s breath or blood under any of the following
              circumstances if the officer arrests the person for an offense
              under Chapter 49, Penal Code, involving the operation of a
              motor vehicle or a watercraft and the person refuses the officer’s
              request to submit to the taking of a specimen voluntarily:

                     (1) the person was the operator of a motor vehicle or a
              watercraft involved in an accident that the officer reasonably
              believes occurred as a result of the offense and, at the time of
              the arrest, the officer reasonably believes that as a direct result

                                              -16-
              of the accident:

                     (A) any individual has died or will die;

                     (B) an individual other than the person has suffered
              serious bodily injury; or

                      (C) an individual other than the person has suffered
              bodily injury and been transported to a hospital or other medical
              facility for medical treatment;

                     (2) the offense for which the officer arrests the person is
              an offense under Section 49.045, Penal Code; or

                     (3) at the time of the arrest, the officer possesses or
              receives reliable information from a credible source that the
              person:

                     (A) has been previously convicted of or placed on
              community supervision for an offense under Section 49.045,
              49.07, or 49.08, Penal Code, or an offense under the laws of
              another state containing elements substantially similar to the
              elements of an offense under those sections; or

                     (B) on two or more occasions, has been previously
              convicted of or placed on community supervision for an offense
              under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an
              offense under the laws of another state containing elements
              substantially similar to the elements of an offense under those
              sections.

Tex. Transp. Code § 724.012(b). The Kenneth Lee Douds court first observed that “the
Transportation Code does not address whether a warrant is required before obtaining a
mandatory blood draw,” Kenneth Lee Douds, slip op. at 26, and then concluded that “the
statute does not mandate a warrantless blood draw,” id., slip op. at 27. The court
emphasized, “The mandatory blood draw statute cannot—and does not purport to—alter the
Fourth Amendment warrant requirement or its recognized exceptions.” Id., slip op. at 27-28.

             We find the reasoning of the Kenneth Lee Douds court sound. Like the Texas
Transportation Code, the mandatory blood draw statute at issue here does not address

                                             -17-
whether a police officer must obtain a search warrant before causing a suspect’s blood to be
drawn. Thus, the statute is open to the interpretation that a warrant is required before a
mandatory blood draw when a suspect refuses to consent to the draw. When “(1) a statute
can legitimately be construed in various ways, and (2) one of those constructions presents a
constitutional conflict, then ‘it is our duty to adopt a construction which will sustain the
statute and avoid [that] constitutional conflict, if its recitations permit such a construction.’”
State v. Mallard, 40 S.W.3d 473, 480 (Tenn. 2001) (quoting Marion County Bd. of Comm’rs
v. Marion County Election Comm’n, 594 S.W.2d 681, 684-85 (Tenn. 1980)). We conclude
that Code section 55-10-406(f)(2) does not dispense with the warrant requirement.
Accordingly, we reverse the judgment of the trial court declaring the statute unconstitutional.

                                          Conclusion

               Because the trial court erred by declaring Code section 55-10-406(f)(2)
unconstitutional, we reverse that portion of the trial court’s judgment. Because Code section
55-10-406(f)(2) did not dispense with the warrant requirement and because the State failed
to establish that the defendant’s blood was drawn pursuant to a recognized exception to the
warrant requirement, we affirm the judgment of the trial court suppressing the results of
blood alcohol testing performed on the defendant’s blood.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                              -18-
