        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 11, 2014 Session

              STATE OF TENNESSEE v. JAMES DEAN WELLS

                Appeal from the Circuit Court for Williamson County
                  No. IICR017004      James G. Martin, III, Judge




              No. M2013-01145-CCA-R9-CD          - Filed October 6, 2014


The defendant was indicted for driving under the influence of an intoxicant (“DUI”), DUI
per se, simple possession, leaving the scene of an accident, and DUI (second offense) after
his vehicle struck a utility pole and small building. The defendant refused law enforcement’s
request to test his blood in order to determine his blood alcohol content. The defendant’s
blood was taken pursuant to Tennessee Code Annotated section 55-10-406(f)(2) (2012) and
without a warrant, despite his refusal to submit to testing. The defendant moved to suppress
evidence of his blood alcohol content, alleging that his Fourth Amendment rights had been
violated and that Tennessee Code Annotated section 55-10-406(f)(2) was unconstitutional.
The trial court granted the motion to suppress, concluding that the statute was
unconstitutional. The State sought and was granted permission to appeal, arguing that the
blood was taken under exigent circumstances and that the implied consent law functioned
to satisfy the consent exception to the warrant requirement. After a thorough review of the
record, we conclude that the blood draw violated the defendant’s right to be free from
unreasonable searches and seizures because it was not conducted pursuant to an exception
to the warrant requirement, and we affirm the suppression of the evidence. We determine
that, although the blood draw was taken pursuant to the statute, the statute did not dispense
with the warrant requirement and is therefore not unconstitutional as applied to the
defendant.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH,
J., joined and NORMA MCGEE OGLE, J., concurs in results only.

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

Bernard F. McEvoy, Nashville, Tennessee, for the appellant, James Dean Wells.



                                         OPINION



                     FACTUAL AND PROCEDURAL HISTORY




        The defendant was apprehended approximately one-half mile from the scene of an
accident, and his blood was forcibly drawn after police determined there was probable cause
to believe he had been driving while intoxicated and that he had a previous DUI conviction.
The defendant moved to suppress the evidence of his blood alcohol content, arguing that the
statute was unconstitutional and that his Fourth Amendment rights had been violated. The
State responded that there were exigent circumstances supporting the search and that the
defendant had no constitutional right to refuse.

         At the suppression hearing, Officer Cory Kroeger testified that on May 12, 2012, at
approximately 3:45 a.m., another officer called him to the site of an accident via radio. He
arrived and saw that a truck had crossed the opposing lane of traffic and had gone off the
road, striking a utility pole and a small building, completely destroying the front end of the
vehicle, and cracking the foundation of the building. The unoccupied vehicle had Missouri
tags and was registered to the defendant, and it was strewn with papers containing his local
contact information. “At least” five officers had responded to the scene, and one of them
was canvassing nearby hotels looking for the driver of the vehicle. The clerk at a hotel
located a quarter of a mile from the accident indicated that a man had just come in asking to
use the phone; the clerk had sent the man to a gas station one-half mile from the site of the
accident.

        The defendant was located at the gas station, emanating a strong scent of alcohol and
standing unsteadily on his feet. Officer Kroeger testified that approximately twenty minutes
had passed since he first responded to the accident. The defendant had abrasions on his shins




                                             -2-
and forearms but denied driving his car that evening,1 informing police that the car was at his
apartment to the best of his knowledge. He acknowledged drinking at four bars that night,
and he told police he had ridden to the bars on the back of a friend’s motorcycle. The
defendant agreed to take field sobriety tests and did not perform satisfactorily on four of the
five tests. The tests took approximately twelve to fifteen minutes to complete. The
defendant was subsequently arrested for DUI and other offenses. Officer Kroeger
determined through dispatch that the defendant had a prior DUI conviction.

         Officer Kroeger asked the defendant to submit to blood alcohol testing, and the
defendant refused. Officer Kroeger read the implied consent law to the defendant. Officer
Kroeger then took the defendant to the hospital across the street, where they were met by a
sixth, supervising officer, for a nonconsensual blood draw. The blood was drawn at 5:30
a.m.

        Officer Kroeger testified that he had never prepared a search warrant and did not
know how long it would take. He testified that the jail, where a magistrate was available to
issue warrants twenty-four hours per day, seven days each week, was a five to ten minute
drive from the gas station. Officer Kroeger testified that the laptop in his vehicle did not
have email or internet but could receive information through dispatch; he did not know if it
was possible to get a warrant by telephone.

          Casey Ashworth, a magistrate in Williamson County,2 confirmed that a magistrate
was always available in the jail to issue a warrant. He testified that it would usually take ten
minutes to review and sign a warrant. Generally, there was not a line of officers seeking
warrants, but when there was, the magistrates allowed time-sensitive matters to go first. He
testified that to his knowledge, none of the magistrates at the jail had issued a warrant by
telephone.

        The trial court suppressed the evidence, concluding that the statute unconstitutionally
mandated the blood draw. In holding the statute unconstitutional, the trial court found that
Tennessee Code Annotated section 55-10-406(f)(2) creates a per se exception to the warrant
requirement and mandates a warrantless search. The trial court concluded that the natural
dissipation of blood alcohol was not, without more, a sufficient exigency to justify a


       1
        While the defendant’s motion to suppress also challenged Officer Kroeger’s
determination that there was probable cause to believe he was the driver of his vehicle, the trial
court made no findings regarding the issue, and the issue is not raised on appeal.
       2
        Mr. Ashworth testified he was still a magistrate at the time of his testimony but had
stopped working for the county in 2010.

                                                -3-
warrantless search3 and that the statute was, therefore, unconstitutional. The trial court
further found that exigent circumstances did not exist in this particular case. It based its
conclusion on the fact that the wreck was discovered at 3:45 a.m.; that it took approximately
twenty minutes to locate the defendant; that five officers were working the scene and
available to assist with obtaining a warrant and transporting the defendant; that it would have
taken approximately ten minutes to drive to the jail and ten to obtain a warrant; and that the
defendant waited at the hospital, which was essentially across the street from the gas station,
for an hour to have his blood drawn at 5:30 a.m.

        The State applied for an interlocutory appeal, which the trial court approved and this
court granted. On appeal, the State argues that the mandatory blood draw was supported by
two exceptions to the warrant requirement: exigent circumstances and consent.

                                         ANALYSIS

                                   I. Standard of Review

        A trial court’s findings of fact made during a hearing on a motion to suppress are
binding on an appellate court unless the evidence preponderates otherwise. State v.
Williamson, 368 S.W.3d 468, 473 (Tenn. 2012). “Questions of credibility of the witnesses,
the weight and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). The prevailing party is entitled to the strongest legitimate view of the evidence and
all reasonable and legitimate inferences drawn from the evidence. Id. The trial court’s
application of law to the facts, however, is reviewed de novo with no presumption of
correctness. Williamson, 368 S.W.3d at 473. Issues of constitutional interpretation and other
questions of law are reviewed de novo. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009).

              II. Prohibition Against Unreasonable Searches and Seizures

        The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution prohibit unreasonable searches and seizures. Tennessee’s
constitutional protections regarding searches and seizures are identical in intent and purpose
to those in the federal constitution. State v. Turner, 297 S.W.3d 155, 165 (Tenn. 2009). In
evaluating whether a search or seizure has violated the federal or state constitutions, we keep
in mind that “[r]easonableness is the ‘touchstone of the Fourth Amendment.’” State v.


       3
         The court’s order was drafted prior to the United States Supreme Court’s decision in
Missouri v. McNeely, 133 S. Ct. 1552 (2013), which confirmed the trial court’s understanding
that the metabolization of alcohol is not, per se, an exigency.

                                              -4-
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting Florida v. Jimeno, 500 U.S. 248, 250
(1991)). The Fourth Amendment “deems reasonable those searches conducted pursuant to
a warrant issued ‘upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.’” State v.
Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006) (quoting U.S. Const. amend. IV).

        “[T]he physical intrusion occasioned by a blood draw ‘infringes an expectation of
privacy’” and the chemical analysis of blood is also an invasion of an individual’s privacy
interests. Id. (quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989)).
“Such an invasion of bodily integrity implicates an individual’s ‘most personal and
deep-rooted expectations of privacy.’” Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013)
(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). Accordingly, the blood of the accused
cannot be drawn or analyzed unless the search is a reasonable one under the Fourth
Amendment. Scarborough, 201 S.W.3d at 616; see Schmerber v. California, 384 U.S. 757,
767 (1966). A warrantless search is presumptively unreasonable, and “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 626, 629 (Tenn. 1997). One such exception is
a search conducted under exigent circumstances to prevent the imminent destruction of
evidence. Talley, 307 S.W.3d at 729. Another is consent. Id.

        The State contends that the blood draw in this case was constitutional under the
exigent circumstances exception. The State also submits that the search and the statute are
both constitutional under the consent exception to the warrant requirement pursuant to the
implied consent law. Finally, the State argues that the statute is, in any event, constitutional
because its silence on the subject of a warrant does not explicitly eliminate the warrant
requirement.

                                III. Exigent Circumstances

         Because we “do not decide constitutional questions unless resolution is absolutely
necessary to determining the issues in the case and adjudicating the rights of the parties,” we
first consider whether the search in this instance was justified under the exigent
circumstances exception to the warrant requirement. Waters v. Farr, 291 S.W.3d 873, 882
(Tenn. 2009) (quoting State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002)); see also Owens
v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (noting that if issues can be resolved on non-
constitutional grounds, the court should avoid ruling on constitutional issues).

       In Schmerber v. California, the United States Supreme Court upheld a warrantless
blood draw in a DUI case under the exigent circumstances exception to the warrant

                                              -5-
requirement 384 U.S. 757, 770 (1966). The driver and his companion had both sustained
injuries, and although the court emphasized that the exigency existed “[p]articularly in a case
such as this, where time had to be taken to bring the accused to a hospital and to investigate
the scene of the accident,” id. at 770-71, several courts subsequently read Schmerber to stand
for the proposition that the gradual disappearance of alcohol from the blood was itself an
exigency which did away with the warrant requirement. See, e.g., State v. Shriner, 751
N.W.2d 538, 545 (Minn. 2008) (“The rapid, natural dissipation of alcohol in the blood
creates single-factor exigent circumstances that will justify the police taking a warrantless,
nonconsensual blood draw from a defendant, provided that the police have probable cause
to believe that defendant committed criminal vehicular operation”); State v. Bohling, 494
N.W.2d 399, 402 (Wis. 1993). In Tennessee, some courts likewise concluded that the
changing nature of blood alcohol levels intrinsically constituted exigent circumstances. State
v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn. Crim. App. 2001) (“Based upon the fact that
evidence of blood alcohol content begins to diminish shortly after drinking stops, a
compulsory breath or blood test, taken with or without the consent of the donor, falls within
the exigent circumstances exception to the warrant requirement.”); but see State v. Bowman,
327 S.W.3d 69, 85 (Tenn. Crim. App. 2009) (analyzing circumstances of arrest and
availability of warrant to determine the existence of exigent circumstances in vehicular
homicide); State v. Copeland, No. W2000-00346-CCA-R3-CD, 2001 WL 359235 (Tenn.
Crim. App. 2001) (same).

        Last year, however, the Supreme Court clarified that Schmerber did not in fact create
a per se exigency exempting blood alcohol tests from the warrant requirement. Missouri v.
McNeely, 133 S. Ct. 1552, 1556 (2013) . Instead, the court concluded that the exigency must
be determined based on the totality of the circumstances, and that the metabolization of
alcohol was one of the factors to be considered in evaluating whether the circumstances were
exigent. Id. at 1559, 1563. The Court held that “[i]n 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.” Id. at 1561. The Court found it significant that technological
innovations may make it possible to obtain a warrant without causing significant delay in the
drawing of the blood of the accused. Id. at 1561-63.

         The trial court here examined the totality of the circumstances and concluded that
exigent circumstances did not exist. In making this determination, the trial court found that
five officers were simultaneously investigating the incident, that a magistrate was on duty
in a building ten minutes from the place where the defendant was apprehended, and that it
took a magistrate an average of ten minutes to review a warrant. The trial court further found
that the defendant waited at the hospital, which was essentially across the street from the gas
station where he was apprehended, for approximately one hour until his blood was drawn at

                                              -6-
5:30 a.m. These factual findings are binding on the appellate court unless the evidence
preponderates otherwise. Based on the time elapsed between the violation and the blood
draw, the speed with which a warrant could have been obtained, and the availability of law
enforcement personnel to obtain the warrant, we conclude that the circumstances were not
exigent, as the record demonstrates that police could have “reasonably obtain[ed] a warrant
. . . without significantly undermining the efficacy of the search” and were, therefore,
required to do so under the Fourth Amendment unless their actions were conducted pursuant
to a separate exception to the warrant requirement. McNeely, 133 S.Ct. at 1561.

                                          IV. Consent

         We turn next to the State’s argument that implied consent under the statute
constitutes a consent to the search which satisfies the requirements of the Fourth
Amendment. If the State is correct, then both the drawing of the defendant’s blood in this
circumstance and the statutory mandate that blood be drawn will pass constitutional muster.
When the motion to suppress was briefed and argued before the trial court, McNeely had not
yet been decided, and the prosecutor focused his efforts on arguing exigency. The State’s
brief did cite some cases for the proposition that the right to refuse testing is statutory – based
on the implied consent law – and not constitutional. The Rule 9 application did not raise the
issue. While issues raised for the first time on appeal are generally waived, we choose to
address the argument, as both parties have submitted briefs on the issue, and it is a question
of law which does not require factual findings from the court below.

        Consent is a separate exception to the warrant requirement. State v. Talley, 307
S.W.3d 723, 729 (Tenn. 2010). Determining whether an individual has voluntarily consented
to a search is a question of fact which the court must evaluate from the totality of the
circumstances. State v. Scarborough, 201 S.W.3d 607, 623 (Tenn. 2006). The consent
required by the Fourth Amendment must be “‘unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion.’” State v. Simpson, 968 S.W.2d 776, 784 (Tenn.
1998) (quoting State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992)). The individual’s will
cannot have been overborne; instead the consent must be the product of a free and
unconstrained choice. State v. Cox, 171 S.W.3d 174, 185 (Tenn. 2005).

   A. Implied Consent as an Exception to the Warrant Requirement in Tennessee

        Tennessee Code Annotated section 55-10-406 provides:

               (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

                                                -7-
              test or tests for the purpose of determining the drug content of
              the person’s blood, or both tests.

T.C.A. § 55-10-406(a)(1) (2012). The statute provides that the test may only be administered
when law enforcement has “reasonable grounds to believe” that the person was driving under
the influence or had committed vehicular assault, vehicular homicide, or aggravated
vehicular homicide as a proximate result of intoxication. Id. “Reasonable grounds” has been
interpreted to mean probable cause. State v. Bowery, 189 S.W.3d 240, 248 (Tenn. Crim.
App. 2004).

        Because Tennessee decisions have overwhelmingly found the existence of exigent
circumstances justifying blood tests, and because some decisions concluded that blood
alcohol testing was a per se exigency dispensing with the warrant requirement of the Fourth
Amendment, implied consent has not been a dispositive issue in our Fourth Amendment
jurisprudence regarding DUI blood tests. See Humphreys, 70 S.W.3d at 760-61; State v.
Janosky, No. M1999-02574-CCA-R3-CD, 2000 WL 1449367, at *4 (Tenn. Crim. App. Sept.
29, 2000); Dodson v. Shaver, No. 3-12-1032, 2013 WL 3305847, at *3 (M.D. Tenn. July 1,
2013) (“[Prior to McNeely] the law in the Sixth Circuit and Tennessee suggested compulsory
blood draws with probable cause were generally justified because blood alcohol levels
naturally diminish over time.”).

         Tennessee courts, however, have used sweeping language to suggest that implied
consent is sufficient to meet the requirements of the Fourth Amendment. In State v.
Humphreys, this court concluded that “[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.” Humphreys, 70 S.W.3d at 761 (citing Janosky, 2000 WL 1449367, at *4).
Humphreys concluded that the act of driving a vehicle is simultaneously an act of consent
to blood alcohol testing sufficient to satisfy the Fourth Amendment and that any blood
alcohol tests are consequently not subject to the warrant requirement. Humphreys, 70
S.W.3d at 761; see also Janosky, 2000 WL 1449367, at *5 (“Consent is unnecessary as
consent has already been obtained by the act of driving the motor vehicle.”). The court
concluded, “it is unnecessary for law enforcement officers to obtain the voluntary consent
of an individual motorist before administering a breath test for alcohol concentration level.”
Humphreys, 70 S.W.3d at 761; State v. Flittner, M2000-02367-CCA-R3CD, 2001 WL
1597739, at *3 (Tenn. Crim. App. Dec. 14, 2001) (quoting Janosky, 2000 WL 1449367, at
*4). Furthermore, this court in Humphreys described the right to refuse testing as a statutory,
rather than a constitutional right. Id. at 761; Janosky, 2000 WL 1449367, at *5. This court
has also observed that the statutory language that anyone who drives in Tennessee is deemed
to have given consent “thereby supplements the constitutional basis for a warrantless drug

                                              -8-
or alcohol test by deeming a motorist to have ‘consented’ to such a test.” State v. Gagne,
E2009-02412-CCA-R3-CD, 2011 WL 2135105, at *8 (Tenn. Crim. App. May 31, 2011)
(concluding that seizure was also made pursuant to the exigent circumstances exception and
that the defendant did not refuse testing); Janosky, 2000 WL 1449367, at *4 (“Thereby,
anyone who exercises the privilege of operating a motor vehicle in this state has consented
in advance to submit to a breath alcohol test.”).

         We note, however, certain facts distinguishing the instant case from the Humphreys
line of cases. First, Humphreys, Gagne, and Janosky concluded that the evidence was also
properly collected under the exigent circumstances exception to the warrant requirement.
Humphreys, 70 S.W.3d at 760-61; Gagne, 2011 WL 2135105, at *7; Janosky, 2000 WL
1449367, at*4. Thus, the broad statements regarding the issue of consent can be read as
mere dicta. Second, the Humphreys court emphasized that the defendant, who had a statutory
right to refuse, had not in fact refused the test. Humphreys, 70 S.W.3d at 762-63; see Gagne,
2011 WL 2135105, at *9 (“Further, nothing in the record suggests that the Defendant
expressly refused to submit to the blood collection.”); Janosky, 2000 WL 1449367, at *5;
State v. Flittner, 2001 WL 1597739, at *4 (Tenn. Crim. App. Dec. 14, 2001). Finally, in
none of these cases was the blood draw mandatory.

        State v. Jordan addressed the constitutionality of the subsection of the statute 4
allowing blood alcohol content into evidence in cases involving a vehicular homicide. State
v. Jordan, 7 S.W.3d 92, 99 (Tenn. Crim. App. 1999). In Jordan, the court affirmed prior
caselaw that adopted the Schmerber test for the admissibility of evidence from a compelled
blood test, including the requirement that exigent circumstances exist to forgo a warrant
requirement. Jordan, 7 S.W.3d at 98-99 (citing State v. Cleo Mason, No. 02C01-9310-CC-
00233, 1996 WL 111200, at *7-8 (Tenn. Crim. App. Mar. 14, 1996)). The court held that

                 Because the Defendant points to no evidence in the record that


       4
           At the time, Tennessee Code Annotated section 55-10-406(e) (1999) read:

                 Nothing in this section shall affect the admissibility in evidence, in
                 criminal prosecutions for aggravated assault or homicide by the use
                 of a motor vehicle only, of any chemical analysis of the alcoholic
                 or drug content of the defendant’s blood which has been obtained
                 by any means lawful without regard to the provisions of this
                 section.

The substance of this subsection was located in subsection -406(d) in 2012 and has, with some
revision, been moved to Tennessee Code Annotated section 55-10-406(d)(3).

                                                  -9-
              he refused consent to the blood-alcohol test performed on him
              the night of the accident or that his blood was drawn in violation
              of the standards set forth in Mason, we conclude that the trial
              court properly denied the Defendant’s motion to suppress the
              results of the test.

Jordan, 7 S.W.3d at 99. Because the analysis was conducted under the exigent
circumstances exception to the warrant requirement, and because there was no evidence of
refusal, the court did not address whether the statute provided constitutionally sufficient
consent to the search.

       It is apparent from the analysis in the above cases that blood draws in this State have
always been subject to the Fourth Amendment. As a practical matter, the evanescent nature
of blood alcohol evidence and the time required to obtain a warrant, as well as the previously
overbroad interpretation of Schmerber in some decisions, ensured that blood draws were
generally found to have been validly conducted under exigent circumstances. See, e.g.,
Cloyd v. State, No. E2003-00125-CCA-R3-PC, 2003 WL 22477866, at *6 (Tenn. Crim. App.
Nov. 3, 2003) (noting that “exigent circumstances, i.e., the natural dissipation of alcohol in
the bloodstream over time, were present”). Despite the broad language of Humphreys, we
have found no cases in this state, and the state cites to none, that rely on the implied consent
law as the only exception to the warrant requirement.

     B. Implied Consent as an Exception to the Warrant Requirement in Other
                                  Jurisdictions

         Other jurisdictions have also analyzed whether consent under an implied consent law
is sufficient to satisfy the consent exception to unreasonable searches under the Fourth
Amendment. Some courts have concluded that implied consent statutes satisfy the Fourth
Amendment. In 1986, a federal district court in Alaska concluded that there was no
constitutional right to refuse testing, that consent under the statute could not legally be
withdrawn, and that the test could constitutionally – though perhaps not, without the driver’s
physical cooperation – be administered despite refusal. Burnett v. Municipality of
Anchorage, 634 F. Supp. 1029, 1038 (D. Alaska 1986). That court concluded that a driver
“has no consent to withhold” for Fourth Amendment purposes. Id. The Court of Appeals
of Idaho likewise concluded that law enforcement could request the blood sample to gain the
defendant’s cooperation but “such consent is by no means constitutionally necessary.” State
v. Cooper, 39 P.3d 637, 639-40 (Idaho Ct. App. 2001). In State v. Diaz, the Idaho Supreme
Court upheld a forcible blood draw based on its conclusion that the implied consent law
satisfied the consent exception to the warrant requirement. State v. Diaz, 160 P.3d 739, 741-
42 (Idaho 2007).

                                              -10-
         Some courts have come to the conclusion that such statutes establish consent even
in light of the Supreme Court’s decision in McNeely. In State v. Brooks, the Minnesota
Supreme Court considered, in light of McNeely, the argument that the state’s implied consent
law was unconstitutional because the Legislature could not imply a waiver of the Fourth
Amendment as a condition of granting the privilege to drive. 838 N.W.2d 563, 572 (Minn.
2013). That court concluded that, under McNeely, “[b]y using this ‘legal tool’ and revoking
a driver’s license for refusing a test, a state is doing the exact thing [the defendant] claims
it cannot do—conditioning the privilege of driving on agreeing to a warrantless search.” Id.
The Brooks court, however, ultimately held that the defendant’s consent was not implied
because the defendant had actually consented to the search. Id. at 572-73. The Intermediate
Court of Appeals of Hawaii held that “[t]he limited statutory right to refuse testing also does
not mean that the driver’s implied consent is not valid for purposes of the Fourth Amendment
and Article I, Section 7.” State v. Won, No. CAAP-12-0000858, 2014 WL 1270615, at *20
(Haw. Ct. App. May 2, 2014) cert. granted 2014 WL 2881259 (Hawai'i June 24, 2014). Won
also noted that a driver’s expectation of privacy was diminished by the law giving statutory
notice of blood alcohol testing for intoxicated drivers. Id. at *21. After McNeely was
released, the Superior Court of Delaware reconsidered case law allowing such draws under
implied consent and concluded, “the Court does not view McNeely as prohibiting courts from
finding that statutory implied consent satisfies the consent required for the consent
exception.” State v. Flonnory, 2013 WL 4567874, at *3 (Del. Super. Ct. July 17, 2013)
(citing State v. Cardona, Nos. IN08-05-1014 to -1018, 2008 WL 5206771, at *5 (Del. Super.
Ct. Dec. 3, 2008) for the proposition that implied consent is an exception to the warrant
requirement).

         However, none of these cases involved a forcible blood draw under a mandatory
blood draw provision in a statute. See, e.g., Burnett, 634 F. Supp. at 1031 (petitioners had
refused consent to test, the test was not administered, and they were convicted under the
implied consent law). Furthermore, some of these decisions found that the searches were
justified under an independent exception to the warrant requirement. Brooks, 838 N.W.2d
at 572-73 (concluding that the defendant had actually consented); Won, 2014 WL 1270615,
at *19-21 (defendant chose to take breath test, had right of refusal, and breath test was
minimally intrusive, as opposed to blood test); Cooper, 39 P.3d 637 at 640-41 (noting that
the exigent circumstances exception under Schmerber “provides an alternative to implied
consent” and that a sample obtained without force or verbal refusal was constitutionally
reasonable); Flonnory, 2013 WL 4567874, at *3 (noting defendant never withdrew his
statutory implied consent); but see Diaz, 160 P.3d at 741-42 (holding that implied consent
functioned as an exception to the warrant requirement in the context of a forcible blood draw
and declining to examine exigency).

        Other jurisdictions have concluded that implied consent statutes do not, without

                                             -11-
more, satisfy the dictates of the Fourth Amendment. Directly on point are several decisions
by appellate courts in Texas. In Aviles v. State, the Court of Appeals of Texas initially
concluded that a warrantless and forcible blood draw was permissible under the Fourth
Amendment because it was taken pursuant to a mandatory blood draw provision for repeat
DUI offenders. 385 S.W.3d 110, 116 (Tex. App. 2012). The court concluded that the statute
“expands the State’s ability to search and seize without a warrant, providing implied consent
to obtain blood samples from persons suspected of driving while intoxicated, in certain
circumstances, even without a search warrant.” Id. at 115. The United States Supreme
Court, however, vacated and remanded the decision for further consideration in light of
McNeely. Aviles v. Texas, 134 S. Ct. 902 (2014). On remand, the court concluded that “the
statutes were not substitutes for a warrant or legal exceptions to the Fourth Amendment
warrant requirement.” Aviles v. State, __S.W.3d __, No. 04-11-00877-CR, 2014 WL
3843756, at *3 (Tex. App. Aug. 6, 2014). Because the mandatory blood draw statute “is not
a permissible exception to the warrant requirement,” the blood draw was unconstitutional.
Id.

         Other Texas courts have likewise, in light of the remand of Aviles, concluded that the
implied consent statute did not create an exception to the warrant requirement. Weems v.
State, 434 S.W.3d 655, 665 (Tex. App. 2014) petition for discretionary review granted (Aug.
20, 2014) (concluding that the remand of Aviles implied that the implied consent statute was
not in itself an exception to the warrant requirement); Reeder v. State, No. 06-13-00126-CR,
2014 WL 1862669, at *4 (Tex. App. Apr. 29, 2014) petition for discretionary review granted
(Aug. 20, 2014) (“[I]n the absence of a warrant or exigent circumstances, taking Reeder’s
blood pursuant to Section 724 .012(b)(3)(B) of the Texas Transportation Code violated his
Fourth Amendment rights.”); Sutherland v. State, No. 07-12-00289-CR, 2014 WL 1370118,
at *8 (Tex. App. Apr. 7, 2014) (“[I]t would seem that the position advanced in Aviles that the
Texas Transportation Code’s implied-consent provision applies to justify the warrantless
mandatory blood draw of Section 724.012(b)(3)(B) is also constitutionally infirm.”); see also
State v. Villarreal, __S.W.3d __, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex.
App. Jan. 23, 2014) petition for discretionary review granted (May 07, 2014) (accepting the
State’s concession that there was no consent and concluding that “the constitutionality of the
repeat offender provision of the mandatory blood draw law must be based on the previously
recognized exceptions to the Fourth Amendment’s warrant requirement”).

        The Arizona Supreme Court, faced with the “unconvincing[]” argument that the
implied consent statute constituted actual, voluntary consent or created an exception to the
Fourth Amendment’s requirement for a warrant, concluded that “independent of [the statute],
the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless
blood draw.” State v. Butler, 302 P.3d 609, 613 (Ariz. 2013). The court quoted McNeely for
the proposition that “‘[i]n those drunk-driving investigations where police officers can

                                             -12-
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.’”
Id. at 612 (quoting McNeely, 133 S. Ct. at 1561).


                                C. Revocation of Consent

         Courts have also found that, even if the implied consent derived from the act of
driving a vehicle were sufficient to function as consent under the Fourth Amendment, such
consent could be withdrawn for Fourth Amendment purposes. In general, consent maybe
withdrawn or revoked. State v. Cox, 171 S.W.3d 174, 186 & n.11 (Tenn. 2005); State v.
Rowlett, No. M2011-00485-CCA-R3-CD, 2013 WL 749502, at *13 (Tenn. Crim. App. Feb.
26, 2013) (“Once voluntary consent to search is given, it continues until it is revoked or
withdrawn.”). Accordingly, the United States District Court for the District of Maryland
noted that even if consent could be derived from the state’s implied consent statute, “it is
clear that the defendant withdrew that consent.” United States v. Brown, No. 13–po–01557,
2013 WL 5604589, at *4 n.1 (D. Md. Oct. 11, 2013); see also State v. Declerck, 317 P.3d
794, 804 (Kan. Ct. App. 2014) (“And, even if we were so inclined to accept the State’s view
[that the implied consent statute satisfied the Fourth Amendment], it is immaterial because
Declerck withdrew her consent.”); People v. Harris, 170 Cal. Rptr. 3d 729, 734 (Cal. App.
Dep’t Super. Ct. 2014) (“[I]t is no great innovation to say that implied consent is legally
effective consent, at least so long as the arrestee has not purported to withdraw that
consent”); State v. Padley, 849 N.W.2d 867, 879 (Wis. Ct. App. May 22, 2014) (noting that,
under the implied consent law, a driver may choose to give a blood sample and thereby give
actual consent or may choose to withdraw consent, which is an unlawful act penalized by
license revocation). Not all courts, however, have concluded that consent can be withdrawn.
See Rowley v. Commonwealth, 629 S.E.2d 188, 191 (Va. Ct. App. 2006) (holding that “[t]he
act of driving constitutes an irrevocable, albeit implied, consent to the officer’s demand for
a breath sample” and to allow it to be withdrawn would nullify the statute); Won, 2014 WL
1270615, at *21 (holding that the purpose of the implied consent statute would be defeated
if consent could be withdrawn). Burnett and Cooper, for instance, both distinguished
between a driver’s physical refusal to cooperate – which was protected by statute – and a
driver’s legal consent, which the cases held could not be withdrawn. Burnett, 634 F. Supp.
at 1038 & n.7; Cooper, 39 P.3d at 641.

        Tennessee courts have generally not addressed the withdrawal of consent under the
implied consent law. In State v. Cochran, the defendant consented to his blood being drawn
but purported to presently withdraw that consent prior to the chemical analysis after
conferring with his attorney. State v. Cochran, M2006-02175-CCA-R3-CD, 2007 WL
2907281, at *1 (Tenn. Crim. App. Oct. 1, 2007). Although this court recited the fact that the

                                             -13-
defendant’s right to refuse was not constitutional, it also ultimately determined that the
defendant had given consent at the critical time, which was the drawing of the blood and not
its analysis. Id. at *3.

        While the defendant here clearly attempted to revoke any implied consent, we decline
to analyze the consent exception on the basis of revocation. We instead premise our decision
regarding whether the implied consent law provides an exception to the warrant requirement
in the context of a forced blood draw on a more general Fourth Amendment analysis.

                       D. Forcible Blood Draw and Reasonableness

        As noted above, the bulk of the decisions holding that the act of driving functioned
as consent for Fourth Amendment purposes did not do so in the context of a forcible blood
draw. However, we note that some of the decisions pointed out that the State’s authority to
revoke a license for failure to consent to the search is also premised on the interpretation that
the law grants consent sufficient to create a Fourth Amendment exception. As the Brooks
court stated, “[b]y using this ‘legal tool’ and revoking a driver’s license for refusing a test,
a state is doing the exact thing [the defendant] claims it cannot do—conditioning the
privilege of driving on agreeing to a warrantless search.” Brooks, 838 N.W.2d at 572.

         We find caselaw regarding consent to search as a condition of the granting of
probation or parole instructive. In State v. Davis, a probationer who had signed a consent
form as a condition of his probation refused officers permission to search his home, and the
search was performed without his consent. State v. Davis, 191 S.W.3d 118, 119 (Tenn. Crim.
App. 2006). The court quoted the analysis in United States v. Knights, 534 U.S. 112, 114,
122 S.Ct. 587, 589 (2001), also addressing a consent provision which attached as a condition
of probation, that the reasonableness of a search must be assessed by the degree to which it
intrudes on privacy and the degree to which it is necessary for the promotion of a legitimate
governmental interest. Davis, 191 S.W.3d at 120. The court cited Knights’s conclusion that
probation is a criminal sanction which diminishes the expectation of privacy and that the
governmental interest was strong. Id. Knights explicitly pretermitted the question of whether
consent to the terms of provision operated as consent constituting an exception to the warrant
requirement. Knights, 534 U.S. 112, 118. Instead, the Knights court concluded that the
search was, under the totality of the circumstances, reasonable. Id. The Davis court also
refused to address the constitutionality of the search provision, concluding instead that the
search was valid because the provision was reasonably related to the conditions of probation,
the search was supported by reasonable suspicion, and the refusal to submit to the search was
a violation of the conditions of probation. Davis, 191 S.W.3d at 121-22. The Davis court
went on, however, to conclude that the signed waiver of the probationer’s Fourth
Amendment rights was voluntary and that the waiver was therefore valid. Id. at 122.

                                              -14-
        The Tennessee Supreme Court in State v. Turner concluded that the “the Tennessee
Constitution permits a parolee to be searched without any reasonable or individualized
suspicion where the parolee has agreed to warrantless searches by law enforcement officers.”
297 S.W.3d 155, 166 (Tenn. 2009). Turner followed the United States Supreme Court’s
decision in Samson v. California, where a parolee had agreed, as a condition of release, to
be subject to a search at any time and without cause. 547 U.S. 843, 846 (2006). The United
States Supreme Court again declined to address the issue of whether this written waiver
operated as consent within the meaning of the Fourth Amendment, concluding instead that
the search was reasonable under the totality of the circumstances. Id. at 852 n.3. Turner
likewise did not analyze based on consent.

        In People v. Harris, the California Appellate Departments of the Superior Court
observed that a forcible blood draw was “categorically different” from a blood draw
performed with consent granted under persuasion from the implied consent law. 170 Cal.
Rptr. 3d 729, 733 (Cal. App. Dep’t Super. Ct. 2014). The Harris court ultimately concluded
that “in these cases the implied consent law gives way to the constitutional rules of
Schmerber and its progeny.” Id. at 736 (upholding search because defendant consented
under persuasion of the implied consent law). In Hannoy v. State, the Court of Appeals of
Indiana likewise concluded that, while the legislature could condition the privilege of driving
upon submitting to a chemical test in certain circumstances, it could not abrogate the Fourth
Amendment right to be free from unreasonable searches. 789 N.E.2d 977, 987 (Ind. Ct. App.
2003) (holding that blood draw was unconstitutional and that implied consent law did not
function as an exception to the warrant requirement where there was no probable cause to
believe that the defendant was intoxicated and the defendant did not explicitly consent to the
draw). We find this reasoning to be persuasive.

       The touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500
U.S. 248, 250 (1991). “What is reasonable, of course, ‘depends on all of the circumstances
surrounding the search or seizure and the nature of the search or seizure itself.’” Skinner v.
Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989) (quoting United States v. Montoya
de Hernandez, 473 U.S. 531, 537 (1985)). As noted above, the reasonableness of a search
must be assessed by the degree to which it intrudes on privacy and the degree to which it is
necessary for the promotion of a legitimate governmental interest. Davis, 191 S.W.3d at 120.
Likewise, determining whether the use of force to effect a search is reasonable requires
balancing the nature and quality of the intrusion on the individual’s rights against the
government’s interests. Graham v. Connor, 490 U.S. 386, 396 (1989).

        We recognize that the State’s interest in preventing driving while intoxicated is
legitimate, substantial, and compelling. However, the State’s ability to suspend a driver’s
license for failure to abide by the implied consent law implicates very different privacy

                                             -15-
interests from the State’s ability to forcibly draw blood. See Ferguson v. City of Charleston,
532 U.S. 67, 78 (2001) (noting that the denial of a benefit is “a less serious intrusion on
privacy” than the sharing of medical information with third parties). The “consent” inherent
in the implied consent law is generally consent to either submit to testing or to accept the
consequences of a refusal of testing, including a loss of license. In contrast, the State here
advances the argument that exercising the privilege of driving constitutes consent for a
forcible blood draw. “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)). “That . . . the Constitution does not forbid the
States minor intrusions into an individual’s body under stringently limited conditions in no
way indicates that it permits more substantial intrusions, or intrusions under other
conditions.” Schmerber, 384 U.S. at 772.

        While the State may attempt to persuade the accused to submit to a search by
providing consequences for a failure to submit to a test ordered upon probable cause,5 we
hold that the privilege of driving does not alone create consent for a forcible blood draw.
Given the gravity of the intrusion into privacy inherent in a forcible blood draw, we conclude
that such a search is not reasonable unless performed pursuant to a warrant or to an exception
to the warrant requirement. The implied consent law does not, in itself, create such an
exception.

         We further find McNeely instructive on this issue. In a section of the opinion joined
by three Justices, Justice Sotomayor notes that “all 50 States have adopted implied consent
laws that require motorists, as a condition of operating a motor vehicle within the State, to
consent to BAC testing if they are arrested or otherwise detained on suspicion of a
drunk-driving offense.” McNeely, 133 S.Ct. at 1566. The opinion goes on to state that
“[s]uch laws impose significant consequences when a motorist withdraws consent; typically
the motorist’s driver’s license is immediately suspended or revoked, and most States allow
the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent
criminal prosecution.” Id. (emphasis added). We note also that the remand of Aviles for
reconsideration in light of McNeely casts doubt on the argument that the implied consent law
can in itself do away with the warrant requirement.

       This is not, of course, to say that the State cannot obtain a blood sample from the
accused in contravention of his or her wishes. We merely conclude that such a sample must
be taken in compliance with the Fourth Amendment – that is, it must be supported by a
warrant issued by an independent magistrate finding probable cause or by exigent

       5
         While the statute also uses the term “reasonable grounds,” this phrase has been
interpreted to mean probable cause. Bowery, 189 S.W.3d at 248.

                                               -16-
circumstances, voluntary consent, or some other exception to the warrant requirement. The
implied consent law does not, in itself, satisfy any of these exceptions in the context of a
forcible blood draw.

                             V. Constitutionality of the Statute

        Having concluded that neither exigent circumstances nor consent have brought the
search in this case into compliance with the Fourth Amendment, we conclude that the
defendant’s Fourth Amendment rights were violated when his blood was drawn without a
warrant pursuant to the statute. The defendant argues that, because the statute required
officers to draw his blood, the statute itself is unconstitutional. The trial court agreed,
concluding that no exception to the warrant requirement applied and that the statutory
mandate to draw the defendant’s blood rendered the statute unconstitutional. The State
cannot, through legislation, strip an accused of constitutional rights.

         In construing a statute, the appellate court must first ascertain and give full effect to
the General Assembly’s intent and purpose, without either broadening or restricting the
statute’s intended scope. Waters v. Farr, 291 S.W.3d 873, 881 (Tenn. 2009). In interpreting
a statute, we begin with the words of the statute, and we “must (1) give these words their
natural and ordinary meaning, (2) consider them in the context of the entire statute, and (3)
presume that the General Assembly intended that each word be given full effect.”
Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176 (Tenn. 2008). When the
statutory language is clear and unambiguous, we need not look beyond the statute itself but
enforce it as written. Id. Where the statutory language is ambiguous, the court must look to
the entirety of the statutory scheme to ascertain legislative intent. Owens v. State, 908
S.W.2d 923, 926 (Tenn. 1995). “Statutes ‘in pari materia’ — those relating to the same
subject or having a common purpose — are to be construed together.” Id.

         When a litigant challenges the constitutionality of a statute, the court must begin with
a presumption that the statute is constitutional. Gallaher v. Elam, 104 S.W.3d 455, 459
(Tenn. 2003). “We must ‘indulge every presumption and resolve every doubt in favor of the
statute’s constitutionality.’” Id. (quoting State v. Taylor, 70 S.W.3d 717, 721 (Tenn. 2002)).
In a facial challenge to the constitutionality of a statute, the litigant must show that “no set
of circumstances exists under which the statute, as written, would be valid.” Waters v. Farr,
291 S.W.3d at 882.




                                              -17-
                                    A. Right of Refusal

                                   1. Statutory Language

        In evaluating the constitutionality of Tennessee Code Annotated section 55-10-406,
we begin by determining whether the statute in fact mandated the blood draw. Accordingly,
we begin by looking at the plain language of the statute. Tennessee Code Annotated section
55-10-406 has undergone numerous revisions in recent years. At the time of the defendant’s
violation, the statute detailing the situations in which a blood alcohol testing “shall” be
performed for repeat offenders read as follows:

              (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(f)(2) (2012).6 Tennessee Code Annotated sections 39-13-213(a)(2),
39-13-218, and 55-10-401 criminalize vehicular homicide as the proximate result of the
driver’s intoxication, aggravated vehicular homicide as the proximate result of the driver’s
intoxication, and driving under the influence of an intoxicant, respectively. Subsection (f)
also makes testing mandatory in cases in which an officer has probable cause to believe that
the violation was committed by the driver of a motor vehicle involved in an accident
resulting in the injury or death of another or if the officer has probable cause to believe a
violation of one of the sections occurred while a child under sixteen was a passenger in the
vehicle. T.C.A. § 55-10-406(f)(1), (f)(3) (2012).

       These subsections, which mandate that the officer “shall” cause the driver to be tested,
must be read in pari materia with subsection (a)(4)(A), which imposes consequences for a
refusal to abide by the implied consent law and cooperate with blood alcohol testing:

              (4)(A) Except as required by subsection (f), court order or

       6
       The statute has since been amended, and the provisions regarding mandatory testing are
now located in subsection 55-10-406(d)(5).

                                             -18-
               search warrant, if such person is placed under arrest, requested
               by a law enforcement officer to submit to either or both tests,
               advised of the consequences for refusing to do so, and 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). . . . If the court finds that the driver violated this
               subsection (a), except as otherwise provided in subdivision
               (a)(5), the driver shall not be considered as having committed a
               criminal offense; however, the court shall revoke the license of
               the driver for a period of:

               (i) One (1) year, if the person does not have a prior conviction
               for a violation of § 55-10-401, § 39-13-213(a)(2), § 39-13-218,
               § 39-13-106, or § 55-10-418, in this state, or a similar offense in
               any other jurisdiction;

               (ii) Two (2) years, if the person does have a prior conviction for
               an offense set out in subdivision (a)(4)(A)(i);

               (iii) Two (2) years, if the court finds that the driver of a motor
               vehicle involved in an accident, in which one (1) or more
               persons suffered serious bodily injury, violated this subsection
               (a) by refusing to submit to such a test or tests; and

               (iv) Five (5) years, if the court finds that the driver of a motor
               vehicle involved in an accident in which one (1) or more persons
               are killed, violated this subsection (a) by refusing to submit to
               such a test or tests.

T.C.A. § 55-10-406(a)(4)(A) (2012).7 The first sentence of the subsection states that “except
as required by subsection (f), court order or search warrant,” the test will not be administered
upon refusal.8 However, the enumerated consequences of a refusal to submit to testing


       7
       The statute has since been revised. The first sentence of this subsection is now located in
Tennessee Code Annotated section 55-10-406(d)(1), and the penalties have been moved to
Tennessee Code Annotated section 55-10-407.
       8
        On May 9, 2012, prior to the defendant’s violation, the Legislature amended this
subsection essentially by adding the opening clause, excepting from the statutory right of refusal
blood tests that are taken pursuant to subsection (f), court order, or a search warrant.

                                               -19-
include revocation of the driver’s license of the accused in certain circumstances covered by
subsection (f), including a prior DUI or an accident involving death.

         Accordingly, the language of the statute both explicitly forbids a right of refusal in
these circumstances and simultaneously contemplates a separate punishment for exercising
a right of refusal. Without the ability to refuse, the sections regarding revocation of a license
in the event of refusal could be read as surplusage. We conclude that the statutory language
is ambiguous and turn to the legislative history of the law.

                                    2. Legislative history

         The implied consent statute initially did not provide for a mandatory blood draw in
any circumstances. In 2009, the Legislature decided to add a mandatory draw provision in
cases where an officer had probable cause to believe that the driver of a vehicle involved in
an accident resulting in the death or injury of another had committed vehicular homicide or
aggravated vehicular homicide as a proximate result of intoxication or was driving under the
influence of an intoxicant. See 2009 Pub. Acts ch. 324. The House committee and
subcommittee discussions centered around a concern that hospital personnel would refuse
a forcible blood draw for fear of incurring liability. See Hearing on H.B. 355 Before the H.
Judiciary Criminal Practice & Procedure Sub-Comm., 106th Gen. Assembly (Tenn. Mar.
18, 2009); Hearing on H.B. 355 Before the H. Judiciary Comm., 106th Gen. Assembly
(Tenn. Mar. 25, 2009). The bill’s sponsor summarized the law as a “bill [that] will mandate
what they’re already doing,” describing it as a clarification of the current law. Hearing on
H.B. 355 Before the H. Judiciary Criminal Practice & Procedure Sub-Comm., 106th Gen.
Assembly (Tenn. Mar. 18, 2009) (statement of Rep. Jim Hackworth). During a sub-
committee meeting, Representative Eddie Bass raised the possibility that the accused would
resist and be strapped down for a forcible draw and questioned if civil liability would arise.
Id. (statement of Rep. Eddie Bass). Deputy Legislative Attorney Tom Tigue agreed that
medical personnel were reluctant to risk liability from broken needles and other
complications of a forced draw. Id. (statement of Tom Tigue, Deputy Legislative Attorney).

         When the section extending the mandatory draw to DUI repeat offenders and those
with child passengers was added in 2011, see 2011 Pub. Acts ch. 307, Tom Kimball, the
Tennessee traffic safety resource prosecutor from the District Attorney Generals Conference,
testified before both the House and Senate committees. Mr. Kimball summarized that the
bill added certain classes of persons to those who would not be able to refuse testing, and he
recited that the right of refusal is a “legislative largesse” and not a constitutional right.
Hearing on H.B. 715 Before H. Judiciary Comm., 107th Gen. Assembly (Tenn. Apr. 19,
2011); see Hearing on S.B. 1270 Before Sen. Judiciary Comm., 107th Gen. Assembly (Tenn.
May 11, 2011); see also State v. Janosky, No. M1999-02574-CCA-R3-CD, 2000 WL

                                              -20-
1449367, at *6 (Tenn. Crim. App. Sept. 29, 2000). He also expressed an understanding that
under Schmerber, there was no right of refusal because the circumstances would, by
definition, be exigent. Hearing on H.B. 715 Before H. Judiciary Comm., 107th Gen.
Assembly (Tenn. Apr. 19, 2011); Hearing on S.B. 1270 Before Sen. Judiciary Comm., 107th
Gen. Assembly (Tenn. May 11, 2011). Mr. Kimball explained that the draw would be
performed through force if necessary. Hearing on H.B. 715 Before H. Judiciary Comm.,
107th Gen. Assembly (Tenn. Apr. 19, 2011). During the vote in the House, when a
representative questioned whether the accused would be held down for a forcible draw,
Representative Vince Dean answered that the hospital would have the means to withdraw
blood “without a fight.” Hearing on H.B. 715 on the House Floor, 107th Gen. Assembly
(Tenn. May 11, 2011) (statement of Rep. Vince Dean). Representative Ryan Haynes also
asked whether the accused would be held down for the needle, to which the bill’s sponsor
replied that a person refusing to go to jail would likewise be transported to jail by force. Id.
(statement of Rep. Tony Shipley).

        We conclude from the references in the legislative history to restraining the accused
to obtain the sample that the legislature did not intend to create any right of refusal under
subsection (f). Subsections (a)(4)(A)(ii)-(iv), then, are best read as creating a system of
consequences for circumstances in which the accused refuses to cooperate with the blood
draw but the blood draw is performed despite a refusal to cooperate. See, e.g., Burnett, 634
F. Supp. at 1038 & n.7.

                        B. Dispensation of Warrant Requirement

         Even if the Legislature did not intend to allow the accused to refuse a blood draw,
the statute is not unconstitutional unless the circumstances of the compelled draw violate the
prohibition against unreasonable searches and seizures. The State argues that, as the statute
does not reference a warrant at all, it does not dispense with the warrant requirement. The
plain text of the statute indeed does not reference a warrant. We conclude that the statutory
language is ambiguous. In particular, subsection (a)(4)(A) grants a right of refusal “[e]xcept
as required by subsection (f), court order or search warrant.” The statutory language
referencing subsection (f), a court order, and a search warrant as alternative bases for
mandatory testing suggests an ambiguity regarding the Legislature’s intentions.

        The legislative history of the 2009 addition of subsection (f) related to the mandatory
draw reflects the legislature’s (not, at the time, unreasonable) understanding that any Fourth
Amendment concerns were generally allayed by the exigent circumstances exception to the
warrant requirement. When the 2009 mandatory draw subsection for accidents involving
injuries and deaths was added, the bill’s sponsor in the House introduced the bill with a
discussion that essentially clarified that the draw would occur under exigent circumstances.

                                              -21-
See Hearing on H.B. 355 Before the H. Judiciary Criminal Practice & Procedure Sub-Comm.,
106th Gen. Assembly (Tenn. Mar. 18, 2009) (statement of Rep. Jim Hackworth). In the
House subcommittee, the question was raised whether a warrant was required by the statute,
and Tom Tigue, Deputy Legislative Attorney, responded that as written there was no
requirement for a search warrant, citing the evanescent nature of blood alcohol evidence. Id.
(statement of Rep. Tom Tigue, Deputy Legislative Attorney). The bill’s sponsor represented
that it would be difficult to get a warrant in the requisite two hours. Id. (statement of Rep.
Jim Hackworth).

         In 2011, Tom Kimball, the Tennessee traffic safety resource prosecutor from the
District Attorney Generals Conference, told the legislative committees of both houses that
under Schmerber, the circumstances would be exigent. Hearing on H.B. 715 Before H.
Judiciary Comm., 107thGen. Assembly (Tenn. Apr. 19, 2011); Hearing on S.B. 1270 Before
Sen. Judiciary Comm., 107th Gen. Assembly (Tenn. May 11, 2011). Mr. Kimball
elaborated that under current Tennessee caselaw, a blood draw in a fatal or serious-injury
accident would always be conducted pursuant to the exigent circumstances exception. Id.

         In 2012, the Legislature amended the statute in response to the legal interpretation
that the statutory right of refusal prevented the administration of the test even pursuant to a
warrant. See 2012 Pub. Acts ch. 892; Hearing on H.B. 2752 Before H. Judiciary Sub-
Comm., 107th Gen. Assembly (Tenn. Feb. 15, 2012); Tenn. Op. Att’y Gen., No. 10-01, 2010
WL 321243, at *2 (Tenn. A.G. Jan. 13, 2010) (“Outside the context of accidents resulting
in the injury or death of another, then, testing conducted over the motorist’s express refusal
of consent, even by warrant, is not legal for purposes of the statute.”). The amendment
resulted in carving out, from the statutory right to refuse testing, an exception for the
circumstances described in subsection (f), a court order, or a search warrant.9 While the

       9
           Subsection (a)(4)(A) formerly read:

                 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).

The bill substituted the sentence:

                 Except as required by subsection (f), court order or search warrant,
                 if such person, is placed under arrest, requested by a law
                 enforcement officer to submit to either or both tests, advised of the

                                                 -22-
history of the bill in the Senate is sparse, there was extensive discussion in the House
regarding the bill. This discussion did not focus on subsection (f), but instead on the other
exceptions in the amendment: a court order or search warrant. The discussion clarified the
fact that it was a legislative oversight to allow the possibility of a statutory right of refusal
in the face of a warrant. Hearing on H.B. 2752 on H. Floor, 107th Gen. Assembly (Tenn.
Apr. 5, 2012). The bill’s sponsor, Representative Tony Shipley, assured the House during
the discussion that “[t]he failure to issue such a warrant means no test can be given,” and that
“[w]ithout the warrant, no sample will be taken.” Id. (statement of Rep. Tony Shipley).

         The legislative history, accordingly, reflects an understanding that the blood draw
will be taken pursuant to either a warrant or an exception to the warrant requirement. Under
McNeely, of course, not all DUI cases will fall under the exigent circumstances exception.
We have already determined that when exigent circumstances do not exist, the Constitution
requires either a warrant or some other exception to the warrant requirement.

        We agree with the State that in this case, the statute’s silence did not dispense with
the warrant requirement. Although we have upheld the trial court’s determination that there
were no exigent circumstances or other exceptions to the warrant requirement, the statute,
by mandating the blood draw, did not require Officer Kroeger to draw the defendant’s blood
without first obtaining a warrant. Had Officer Kroeger sought a magistrate, the magistrate
would have had the opportunity to independently determine whether there was probable
cause to support the search. See Schmerber, 384 U.S. at 770 (“The importance of informed,
detached and deliberate determinations of the issue whether or not to invade another’s body
in search of evidence of guilt is indisputable and great.”).

        A Texas court, faced with a similar argument, also concluded that the implied
consent statute’s silence on the subject of a warrant did not do away with the warrant
requirement. In State v. Villarreal, law enforcement had probable cause to arrest the
defendant for DUI and conceded there were no exigent circumstances to do away with the
warrant requirement and that there was no consent. State v. Villarreal, __S.W.3d __, No. 13-
13-00253-CR, 2014 WL 1257150, at *10, 11 (Tex. App. Jan. 23, 2014). The defendant’s
blood was forcibly drawn under a statutory provision similar to that at issue in this case. Id.
at *11. The court concluded that the statute mandating a blood draw did not require law
enforcement to draw blood without first obtaining a warrant. Id. The court elaborated that
“[i]n fact, the statute does not address or purport to dispense with the Fourth Amendment’s
warrant requirement for blood draws,” and it refused to interpret the statute’s silence as a


              consequences for refusing to do so, and 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).

                                              -23-
dispensation of the warrant requirement. Id. at *11 & n.12.

         We note that we are not faced here with a situation in which the statute requires a
blood draw, but there is not probable cause to believe that a blood draw would have any
evidentiary value. The Fourth Amendment requires that there be probable cause to believe
the search will reveal evidence. See State v. Jordan, 7 S.W.3d 92, 99 (Tenn. Crim. App.
1999) (requiring “a clear indication that evidence of the accused’s intoxication will be found
if the blood is taken from the accused’s body and tested” (quoting State v. Cleo Mason, No.
02C01-9310-CC-00233, 1996 WL 111200, at *7-8 (Tenn. Crim. App. Mar. 14, 1996))); see
also Schmerber, 384 U.S. at 770 (concluding that, when a search is conducted through
intrusions into the human body, the Fourth Amendment requires not a mere chance but a
clear indication that evidence will be found); State v. Gagne, E2009-02412-CCA-R3-CD,
2011 WL 2135105, at *7 (Tenn. Crim. App. May 31, 2011) (noting that under exigent
circumstances exception, law enforcement needed only probable cause to believe the motorist
had consumed an intoxicant and that testing the motorist’s blood would reveal evidence).
The drafters of the statute here, on the other hand, have included no such limitation. A
situation in which the blood would have no evidentiary value might arise, for instance, if a
law enforcement officer had probable cause to believe that the driver of a motor vehicle had
committed a violation of section 55-10-401 and had previously been convicted of a DUI –
triggering the statute – but the suspect was not apprehended until there was no longer
probable cause to believe that any alcohol remained in the suspect’s bloodstream. In such
a case, of course, there would neither be probable cause to issue a warrant for the blood draw
nor exigent circumstances to uphold the search.

        We conclude that, in this case, the statute did not mandate a blood draw in violation
of the Fourth Amendment. Although the State did not in fact procure a warrant, this failure
to act was not undertaken pursuant to statutory authority. See Villarreal, 2014 WL 1257150,
at *11 (“Although we agree that the statute required the officer to obtain a breath or blood
sample, it did not require the officer to do so without first obtaining a warrant.”).
Accordingly, we refrain from finding the statute unconstitutional as applied to this defendant
under the particular facts of this case.




                                      CONCLUSION

         We conclude that Tennessee Code Annotated section 55-10-406(f)(2) (2012) did not
mandate the State to draw the defendant’s blood without a warrant, and we accordingly
refrain from finding it unconstitutional as applied to this defendant. However, the evidence
was obtained in violation of the defendant’s Fourth Amendment rights, it must be suppressed,

                                             -24-
and we affirm the judgment of the trial court.




                                                   ________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




                                            -25-
