                                                                                          02/12/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                              September 26, 2018, Session

                STATE OF TENNESSEE v. JERRY RAY OAKS

                 Appeal from the Criminal Court for Carter County
                           No. 23804   Lisa Rice, Judge


                             No. E2017-02239-CCA-R3-CD


The defendant, Jerry Ray Oaks, appeals his Carter County Criminal Court jury conviction
of vehicular homicide, claiming that the trial court erred by denying his motion to
suppress the results of a warrantless blood draw, that the defendant should have been
permitted to argue the results of a vehicle inspection during closing argument, and that
the evidence is insufficient to support his conviction of vehicular homicide. The trial
court erred by finding that exigent circumstances justified the warrantless blood draw.
Accordingly, we reverse the defendant’s conviction of vehicular homicide and remand
the case for a new trial.

    Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Vacated;
                                   Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. ROBERT L. HOLLOWAY, JR., J., filed a dissenting opinion.

Wesley K. Taylor (at trial and on appeal) and Melanie Sellers (at trial), Assistant District
Public Defenders, for the appellant, Jerry Ray Oaks.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Ken C. Baldwin, District Attorney General; and Matthew Roark, and
Ryan Curtis, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

              In August, 2017, a Carter County Criminal Court jury convicted the
defendant, Jerry Ray Oaks, of one count of vehicular homicide by intoxication arising out
of a car crash that occurred on February 13, 2016, in which the victim, Vincient
Hitechew, was killed. Prior to trial, the defendant pleaded guilty to one count of driving
on a revoked license.     The trial court imposed an effective sentence of 16 years’
incarceration.

                            I. Facts and Procedural History

                                 A. Suppression Hearing

                Johnson City Medical Center (“JCMC”) charge nurse, April Douglas,
testified that she was working in the JCMC emergency room on the night of February 13,
2016. At 11:59 p.m. that night, the defendant was brought into the emergency room as a
level one trauma patient. Ms. Douglas explained that level one is the most serious level
of trauma and is reserved for patients who have been intubated and are unresponsive.
Ms. Douglas testified that the defendant’s medical records indicated that he had a “lower
abdominal wall contusion . . . with obvious deformity to all extremities.” Prior to
arriving at JCMC, the defendant was intubated and given Ketamine and Rocuronium for
sedation. Upon his arrival at JCMC, the defendant was “emergently taken to the
[operating room] to control hemorrhage and bowel resection.” Ms. Douglas described
the defendant’s injuries as “serious.” Although Ms. Douglas was not personally involved
in the defendant’s care, she drew his blood at the request of Tennessee Highway Patrol
(“THP”) officer William Shelton. She explained that there is no set point in the triage
process in which to draw the patient’s blood and that whether she draws a patient’s blood
on the request of law enforcement “depends on if the patient is really critical and if we
have time to draw that blood.” When asked to give an example of a time when she would
not be able to obtain a patient’s blood sample she stated, “if we’re doing CPR on a patient
for coding the patient.” The defendant received four units of blood while in the
emergency room beginning at 12:28 a.m. and was transferred to the operating room at
12:55 a.m.

             On questioning by the court, Ms. Douglas testified that she would not be
permitted to obtain a blood sample if the patient was “coded.” She stated that law
enforcement officers are not permitted in the operating room.

              On cross-examination, Ms. Douglas reiterated that she was not personally
involved in the defendant’s care other than to draw his blood; her testimony was based
upon the defendant’s medical records. She acknowledged that some of the records have
discrepancies, such as one form indicating the defendant arrived at JCMC by helicopter
and another form indicating he arrived by ambulance. She explained that the sedation
medicine that the defendant received was administered prior to his arrival at JCMC. Ms.
Douglas agreed that whether law enforcement officers would be permitted in an operating
room would be the decision of the operating doctor.
                                            -2-
               Carter County Sheriff’s Department (“CCSD”) Lieutenant Keith Range
testified that “a little after 11[:00] p.m.” on February 13, 2016, he received a call of “a
motor vehicle accident with probable injuries, and also, vehicle fire . . . with one
entrapped.” The 9-1-1 call came in at 11:10 p.m., and CCSD Lieutenant Larry Vaughn1
was the first officer to arrive on the scene in Carter County at 11:16 p.m. CCSD deputies
Michael Malone and Mark McClain also responded to the scene. Lieutenants Range and
Vaughn, along with Deputies Malone and McClain were the only four CCSD officers on
duty in Carter County at the time, so Lieutenant Range sent Deputy McClain away from
the scene so that one officer would be available for other calls. Numerous other
emergency responders were on the scene, including the Carter County Volunteer Fire
Department, the Elizabethton Fire Department, Central Fire Department, three
Emergency Medical Service (“EMS”) units, and a coroner. One unit from the
Elizabethton Police Department responded to a request to block traffic to the scene.
Because the accident blocked the entire road, emergency crews had to park 50 yards
away. Lieutenant Range estimated that 12-15 emergency personnel were at the scene.

              Lieutenant Range testified that it was his practice to request assistance from
the THP in the case of “a serious accident, one that involves death,” or one “that’s going
to need . . . more detail done in the investigation.” In this case, he contacted the THP
while en route to the scene, although he did not yet know that a criminal investigation
would be required. Lieutenant Range said that the CCSD did not conduct a criminal
investigation in this case because, once the THP had been notified, the THP took over the
investigation, and CCSD officers provided only support such as traffic control.

              When he arrived at the scene, Lieutenant Range learned that one person,
who appeared to be deceased, was trapped inside a vehicle. He noted that the vehicles at
the scene appeared as if they had been “fused together” and that the Jeep was on fire.
Lieutenant Range testified that he did not speak to any witnesses or emergency
responders at the scene; he instructed Lieutenant Vaughn to secure the scene and have the
witnesses wait until the THP arrived, and he sent Deputy Malone to direct traffic.
Trooper Brad Proffitt was the first THP officer to arrive at the scene, arriving only a few
minutes after Lieutenant Range. Lieutenant Range testified that, according to the 9-1-1
records, the defendant was transported from the scene by ambulance at 11:34 p.m. and
arrived at JCMC at 11:57 p.m. He described the scene as “kind of chaotic” because they


1
         At the time of the investigation, Lieutenant Vaughn was a Sergeant with the CCSD. We will
refer to him by the title of “Lieutenant” as this was his rank at the time of trial.


                                               -3-
had to secure witnesses, manage traffic, and “had to direct . . . fire trucks and EMS. So it
was -- it was chaotic.”

              On cross-examination, Lieutenant Range clarified that Deputy Malone
arrived on the scene before Deputy McClain, who was on the scene only “for a brief
time.” The Elizabethton police department officer who responded was “well over a mile
away” blocking traffic to the road, but Lieutenant Range noted that the traffic that night
was light. He stated that three fire departments and at least three medical units responded
to the scene, and the THP’s focus was the investigation. He testified that the defendant
was transported to JCMC approximately 20 minutes after the first officer arrived on the
scene.

               On redirect examination, Lieutenant Range testified that other emergency
responders do not have a law-enforcement function because they lack the qualifications
to assist with search warrants and taking statements.

             On recross-examination, Lieutenant Range testified that he had had
experience drafting warrants as a narcotics agent, but he had no experience drafting
warrants as a patrol officer. He agreed that drafting a warrant was “just a statement of
probable cause” that can be based on knowledge from other officers.

               Trooper Brad Proffitt testified that he was dispatched to the scene at 11:25
p.m. and arrived at that same time because he was less than a mile away. He described
the scene: “[T]he flames were as high as you . . . you could see. It looked like a chaotic
situation, numerous fire trucks, EMS on scene.” An EMS worker apprised him of the
situation and told him “that there was . . . an odor of alcohol, a strong odor of alcohol, on
one of the drivers.” Trooper Proffitt then “got on the radio and relayed . . . that this might
be a possible vehicular homicide.” He testified that he notified his supervisor of the
possibility of a vehicular homicide “less than ten minutes” after arriving on the scene,
and the incident became a criminal investigation sometime “between 11:25 and 11:39
p.m.” After notifying his supervisor of the incident, Trooper Proffitt began preserving
evidence. He also ensured that CCSD “took care of the safety of . . . others on scene as
well as traffic control.”

              Trooper Proffitt had no contact with the defendant at the scene and did not
see when the defendant was taken to the hospital because he “was doing other things.”
Trooper Proffitt spoke with EMS personnel and witnesses and learned that only two
people were involved in the wreck. The witnesses told him that they were able to remove
one driver from his vehicle, but they could not see the other driver because of the smoke.
These witnesses reported that “they could smell the odor of alcohol at that time.”
                                             -4-
Trooper Proffitt testified that THP Sergeant Jason Andes arrived on the scene at 11:39
p.m., and, at that point, Trooper Proffitt’s role shifted to preserving evidence and
processing the scene. Trooper Proffitt stated that he had experience writing search
warrants. He noted, however, that he had written one search warrant for a blood draw,
but that was after the incident in this case. Prior to the accident in this case, Trooper
Proffitt had never written a warrant for a blood draw. Trooper Proffitt testified that the
responsibility to draft a warrant in this case “could have been anyone’s” because it was a
“chaotic situation.” He stated that he did not think about obtaining a warrant in this case;
instead, he left the decision about warrants up to Sergeant Andes.

                On cross-examination, Trooper Proffitt testified that when he arrived on the
scene, the defendant had already been removed from his vehicle and was being treated by
EMS. He acknowledged that he did not have to deal with directing traffic or providing
life-saving measures; rather, he was able to focus solely on the law-enforcement aspect of
the crash. Trooper Edward Tester was at the crash scene as well. At the time, Trooper
Proffitt understood that a blood draw would be mandatory because one person was
deceased and the other smelled of alcohol. Trooper Proffitt explained that THP troopers
receive 40-hours of annual training that includes training on mandatory blood draws. The
THP had procedures for obtaining search warrants, but they do not have judges on call to
sign warrants. Trooper Proffitt noted that troopers had telephone numbers for
prosecutors and “can try to get a hold of them” if needed. He acknowledged that he did
not attempt to call any judge or assistant district attorney while investigating the crash but
stated that that decision “wasn’t up to me, it was up to my supervisor.” Trooper Proffitt
explained that troopers had search warrant templates available to them, which templates
had blanks to fill in information and a space to write in an affidavit. He agreed that
warrants may be drafted based on knowledge of other officers. He acknowledged that all
troopers had radios and telephones with them the night of the crash. He confirmed that
JCMC, where the blood draw was performed, is located in Washington County. Trooper
Proffitt stated that he knew that a General Sessions Court judge lived in Washington
County. He confirmed that the THP has an office a couple of miles away from JCMC
and that the THP specializes in traffic fatalities, but he noted that the THP does not have
the ability to send electronic warrants.

              On redirect examination, Trooper Proffitt noted that THP Sergeant Robert
Johnson arrived at JCMC “[p]robably later on that night sometime.” He explained that
the one warrant he obtained for a blood draw took “[o]ver an hour” and was signed by a
judge in Unicoi County. In that case, he typed and printed the warrant in his cruiser and
took it to the judge’s house to be signed. He further explained that the THP office on
John Exum Parkway is not staffed but rather is “just a building that they go to do
paperwork in.”
                                             -5-
                Upon questioning by the court, Trooper Proffitt explained that THP
troopers have the capability to type and print warrants from their cruisers. He speculated
that, in this case, it would have taken him “[a] good twenty minutes or so” to complete a
search warrant, another “ten minutes or so” to find a Carter County judge to sign it, then
20-25 minutes to take the warrant to the judge, and additional time to take the signed
warrant to JCMC, all of which would have taken “over an hour.”

               During redirect examination, Trooper Proffitt stated that he knew where
two Carter County judges lived. He also stated that he had telephone numbers for judges,
but he did not attempt to contact any of them during his investigation of this case. He
reiterated that, in his opinion, there was not sufficient time to obtain a search warrant in
this case because of “the chaotic incident, the time to do the search warrant, the distance
from the . . . scene to the judge’s house, and the distance from the judge’s house to
[JCMC].” He stated that he would not have been able to leave the scene of the accident
because there was “[j]ust too much going on.”

                On recross-examination, he testified that he was focused solely on the law
enforcement aspect at the scene. He acknowledged that he could not be certain how long
it would have taken him to get a warrant in this case because he made no attempt to
obtain one. He did not contact a Washington County judge, so he also did not know
whether any one of them could have met an officer at JCMC to sign the warrant. He
insisted that the decision to pursue a warrant was up to his supervisor and maintained
that, in this case, there was not time to get a warrant because of “exigent circumstances.”

               THP Sergeant Jason Andes testified that, on the night of the accident, he
was supervising officers in Washington and Carter Counties. He arrived on the scene at
11:35 p.m. and described it as “a very horrific scene . . . . The scene was pretty chaotic, a
lot of personnel, people doing multiple things to include medical.” Trooper Proffitt was
“working on witnesses” when Sergeant Andes arrived, and CCSD was diverting traffic,
which “was a big help.” He learned that witnesses had reported that alcohol may have
been involved with the driver “that had been transported,” later identified as the
defendant. He stated that he “quickly knew at [that] point that it was going to turn into
possibly a felony case by -- just by looking at the scene just to that -- that incident.”
Sergeant Andes explained that one of his roles included notifying the Critical Incident
Response Team (“CIRT”) to brief them on the incident and have them collect evidence
from the scene. The CIRT officer notified Sergeant Andes that he would not be able to
get to the scene for more than two hours.



                                             -6-
              Sergeant Andes testified that the defendant had been transported from the
scene before Sergeant Andes arrived, but medical personnel informed him that the
defendant “was very critical and it would be a miracle if he made it.” At that point,
Sergeant Andes instructed Trooper Shelton in Washington County to go to JCMC and
“try to talk with the defendant” and “to go ahead and get some blood on the defendant.”
He did not discuss obtaining a search warrant with Trooper Shelton “because [he] knew
time was of the essence,” and he “made the decision at that time there . . . just wasn’t that
time.” He stated that he knew that the defendant was “very critical” and that “if [the
defendant] made it there and once he hit the ER if we weren’t there waiting on him . . .
there was no chance for us to get any blood.” Sergeant Andes estimated that it would
have taken 20-30 minutes to draft a warrant and an additional 20-30 minutes to get it
signed by a judge, amounting to “an hour at a minimum . . . if everything goes perfect”
with additional time to take the warrant from the judge’s house to JCMC. He asserted
that he had probable cause of the defendant’s intoxication because several people on the
scene reported that they smelled alcohol on the defendant, and he could have articulated
his probable cause to a judge if he had had the time. Sergeant Andes did not know
anything of the defendant’s condition when he was transported from the scene other than
that he was “very critical.”

               Sergeant Andes stated that he knew generally where two Carter County
judges lived but did not have their telephone numbers. He had the addresses for more
than one Washington County judge and the telephone numbers for at least one. Sergeant
Andes testified that he had no experience obtaining search warrants for blood draws
except for those he did in training. He observed another officer’s obtaining a blood draw
warrant once, and, on that occasion, the process of drafting the warrant, obtaining a
judge’s signature, and going to the medical center took “well over an hour.” In this case,
he did not attempt to contact any judge, but he did try to call the district attorney shortly
after arriving on the scene but received no answer. He did not call any assistant district
attorneys because he did not have their telephone numbers. Despite his lack of
experience and despite that he made no attempt to obtain a warrant in this case, Sergeant
Andes insisted that it would have taken 20 minutes to draft the warrant, “at least [20]
minutes” to get to the house of a Carter County judge to sign the warrant, and another 30
minutes to get to JCMC with the signed warrant. Although he acknowledged that he was
capable of typing and printing a warrant from his vehicle, he noted that this equipment
had malfunctioned before. He testified that he was not aware of any judge’s permitting
electronic search warrants. He explained that the reason he did not seek a search warrant
in this case was time. He stated that he was trained that “unless there’s exigent
circumstances you need to try your best to get a search warrant.”



                                             -7-
              Sergeant Andes testified that when he arrived at the crash scene, CCSD
Lieutenant Range briefed him on the situation and remained on the scene for “probably
less than ten minutes” before going to direct traffic. In describing his own role at the
scene, Sergeant Andes explained that because the other troopers at the scene were
“seasoned,” “experienced,” and knew their roles, he did not “have to tell them what to
do”; instead, his role was “to make sure it’s done correctly.” Because he did not need “to
stand over [his officers] and make sure they’re picking up every piece of evidence,” he
contacted the CIRT leader, the CID investigator, and the district attorney general’s office
while the other troopers collected and preserved evidence. He acknowledged that he
could have had an officer try to get a search warrant to draw the defendant’s blood, but
the defendant “would have already made it to the Med Center and been going back before
we could have got anything done,” and Sergeant Andes did not “feel like it would have
been accomplished.”

               During cross-examination, Sergeant Andes clarified that he was the second
THP officer to arrive after Trooper Proffitt at the crash scene. They focused on
“[p]reserving the scene, collecting evidence, . . . [and] talking to witnesses.” Evidence
preservation included taking photographs, marking the scene, and generally preparing for
the CIRT, talking to witnesses, and collecting any tangible evidence from the vehicles.
He reiterated that emergency personnel at the crash scene included THP units, several fire
departments, and several EMT units. Trooper Shelton was in Washington County for the
duration of the investigation. Sergeant Andes again admitted that he did not attempt to
contact any judges in this case but knew there were three General Sessions Court judges
in Washington County and had been successful in contacting Judge Arnold in
Washington County for search warrants in the past. He acknowledged that the THP has
fill-in-the-blanks search warrant templates that can be typed up and printed from their
vehicles and that the THP officers also have radios and cellular telephones. He agreed
that warrants can be based on knowledge obtained from other officers. He did not have
any other Washington County judge on his list because he “rel[ies] on the troopers to be
able to get a hold of the appropriate judges.” He stated that cases with traffic fatalities
are the specialty of the THP, and the CCSD contacted THP and requested them to
investigate this case.

              Trooper William Shelton testified that on the night of the accident, he was
dispatched to JCMC to investigate because “alcohol was involved.” He testified that he
arrived at JCMC at 12:03 a.m., and it took him approximately five to seven minutes after
arriving to locate the defendant. Trooper Shelton stated that, when he found the
defendant, he “immediately went in” to the hospital room where “[t]here was several
medical personnel working on [the defendant].” He noted that “[i]t appeared that [the
defendant] was very critical,” and “[t]here was a lot of hectic activity going on with the
                                            -8-
ER, and the doctors, and nurses, and things like that.” Trooper Shelton notified “the in
charge nurse” that this incident involved alcohol and that he “was there to make
identification of the . . . person and also to obtain blood possibly.” He explained his
process of obtaining the defendant’s blood sample:

              I kind of stood around for a few minutes, and . . . could tell
              that they [were] frantically trying to do some things with him.
              . . . Somebody said that he was trying to be stable enough to
              take to the operating room. At that point I just kind of
              shouldered my way in, and . . . said, I -- I’d like to get some
              blood due to the situation. I understand there’s possibly a
              death involved.

The medical staff “was frantically trying to get [the defendant] stabilized to take him to
the [operating room].” Trooper Shelton requested the blood draw at 12:20 a.m., and the
defendant’s blood was drawn at 12:25 a.m. He testified that he was not instructed to
obtain a warrant prior to requesting that the defendant’s blood be drawn. He further
testified that, in his experience, “getting search warrants . . . [is] very time consuming.”
He continued, “In a situation like this from my experience, if I lose the person in the
emergency room when they take them off to other places in the hospital that’s generally
[the end] of my contact with them, unless, they bring them back, you know, from x-ray or
something.” In this case, he “really felt that [the defendant] wasn’t going to make it and
he wasn’t going to live and once I lost contact I felt that was it, my only opportunity to
get a sample.” He surmised that he had approximately 20-30 minutes to obtain the
defendant’s blood sample. Trooper Shelton acknowledged that he had successfully
obtained two search warrants for blood draws “since [THP has] been doing them.” Each
of those warrants took “[a]t best two hours, two and a half hours” to obtain, and in each
of those cases, he drove to Carter County to have Judge Street sign the warrant. In this
case, Trooper Shelton did not attempt to contact a judge, the district attorney general, or
any of the assistant district attorneys general.

              On cross-examination, Trooper Shelton explained that the Request for
Blood Withdrawal form indicated that the blood draw was mandatory, which generally
meant that the accident resulted in injury or death, and intoxication was suspected. He
understood “mandatory” to mean that a blood sample was to be taken with or without a
warrant. He reiterated that he did not attempt to contact any judge during this
investigation. He acknowledged that the THP has template warrants that can be accessed
from their vehicles and that officers can email documents to each other. He agreed that it
was “theoretically possible” for one trooper to type up a search warrant and email it to a
trooper in another county to take to a judge to be signed. He also agreed that it was
                                            -9-
possible for a trooper to call a judge in Washington County and ask that judge to meet an
officer at JCMC to sign a warrant, but that did not happen in this case. He stated that he
did not “know where any judge lives” and that he had “never been to any of their homes.”
He confirmed that the specialty of the THP is “[p]rimarily investigation . . . of crashes.”
He had received training on obtaining search warrants for blood draws that required him
to draft a warrant and have it graded. Trooper Shelton testified that he had the telephone
numbers for a few judges in his cellular telephone, but he “usually rel[ied] on . . .
dispatch to [provide him] with numbers and such.” The Fall Branch District THP
troopers do not otherwise have a list with judge’s contact information.

             Johnson City Police Department (“JCPD”) officer Drew Guider testified
that he had completed driving under the influence (“DUI”) training and had made
approximately 60-70 DUI arrests. He explained the JCPD procedures for obtaining a
blood draw warrant:

              Upon arrival on the scene . . . [we] go through our
              investigation on the scene, clear the roadway, do whatever we
              need to do there, conduct field sobriety tests, establish our
              probable cause for . . . driving under the influence. At that
              point [we] take the person into custody and usually we have
              another officer there that we’re able to hand off our
              defendant, the suspect to, and allow them to watch them and
              we go to headquarters and transport the suspect to our police
              headquarters. There we get on the desktop computers there
              and we have the search warrant forms there. . . . [W]e write
              out our narrative, our probable cause to our warrant, all that
              kind of stuff, fill all that out while the other officer[] watches
              our suspect. When we’re close to being finished we start at
              the top of our judge call list and -- and start calling judges, or
              -- or pick one that we want to call. Once we get a hold of a
              judge and find one that will sign the warrant we go and get
              the warrant signed. Once we get the warrant signed we
              contact the other officer that has custody of our prisoner and
              have them meet us at Franklin Woods, or [JCMC]. We meet
              there with the warrant and at that point we draw the blood.

JCPD has a list of judges for officers to call. Officer Guider estimated that it would take
him approximately two hours from the time of a traffic stop to obtain a search warrant.
He testified that drafting a warrant and obtaining a judge’s signature would take
approximately 30 to 45 minutes. Officer Guider testified that he “usually call[ed] Judge
                                            -10-
Arnold” who lives only “three to four minutes away” from JCMC. In his four-and-a-half
years with the JCPD, he had always been able to find a judge to sign his warrants. He
explained that JCPD officers do not have laptops or printers in their cars.

              During cross-examination, Officer Guider testified that he had never
needed to obtain a search warrant from Judge Rice or Judge Street, and he did not know
where they lived. He estimated that the JCPD had between 15-20 officers available at
any time to assist in investigations, and this made it “much easier when you can hand off
your prisoners to somebody else.” He surmised that Johnson City, as a territory for law
enforcement, is smaller than Carter County. He explained that he usually tried to contact
Judge Arnold for a warrant because he lived three to four minutes away from JCMC; a
second judge lived “a farther distance away,” and he did not know where the third judge
lived.

              Following arguments by both parties, the trial court ruled that exigent
circumstances existed excusing the need to obtain a warrant before drawing the
defendant’s blood. Specifically, the court found that, because it would have taken the
officers one-and-a-half to two hours to obtain a warrant in this case and because the
officers “knew they had a short period of time before this very critically injured person
was going to be taken back to surgery,” exigent circumstances justified the warrantless
blood draw.

              The trial court granted the defendant’s motion for an interlocutory appeal of
the denial of his motion to suppress the results of the warrantless blood draw. This court
denied the defendant’s application for permission to appeal holding that “the defendant
has failed to establish the necessity of interlocutory review.” State v. Jerry Oaks, No.
E2017-00827-CCA-R9-CD (Tenn. Crim. App., Knoxville, June 6, 2017) (Order).

                                         B. Trial

              At trial, the victim’s wife, Kim Hitechew, testified that on the night of the
accident, she and the victim attended a charity dinner, and the victim left the event
shortly after 11:00 p.m. to get something he had forgotten. When she could not get in
touch with the victim, Mrs. Hitechew contacted the THP, who informed her that there
had been an accident. A friend of Mrs. Hitechew’s went to the scene to verify that the
accident involved the victim. Officers later transported Mrs. Hitechew to the hospital and
informed her what had happened. Mrs. Hitechew testified that she had no interaction
with law enforcement officers other than their keeping her up to date on the case.



                                           -11-
              Lieutenant William Buchanan, an officer with the Avery County Sheriff’s
Office in Newland, North Carolina, testified that he was traveling home from Johnson
City with his family when he came upon the crash scene. He first noticed “what
appeared to be some kind of object in the road.” As he neared, he realized that object
was a vehicle. It was not “until [he] actually got out of [his] car and walked up to the
first vehicle that [he realized] it was actually a two vehicle accident.” Lieutenant
Buchanan testified that this accident occurred in Carter County. He described the night
of the accident as “extremely dark,” but he noticed “a small puff of smoke coming from
what appeared to be a . . . Jeep Commander, or a Jeep Liberty.” After retrieving a flash
light, he saw that someone was in the driver’s seat of the other vehicle. He attempted to
find a pulse for that driver, but could not. He then heard a noise from the Jeep and found
the defendant “passed out” and “just kind of moaning.” He described the defendant as
“very addled, didn’t know where he was at.” Lieutenant Buchanan testified that he had
“never actually seen . . . a wreck that -- that bad where it was two cars had -- had become
one.”

              Lieutenant Buchanan testified that “the flames w[ere] starting to come over
the hood, or the top of the car.” By that time, an EMS worker named Sean was on the
scene, and together they attempted to open the defendant’s car door. When the car door
would not open, they attempted to pull the defendant out of the back of the car, but the
fire prevented them from doing so. They then used a tow strap attached to another
vehicle to pull the door open on the defendant’s vehicle. The defendant’s “legs w[ere]
stuck under the dash where the car had crumpled in on him,” so Lieutenant Buchanan had
to “pull[] with all [his] might” to remove the defendant from the vehicle. After moving
the defendant away from the burning vehicles, Lieutenant Buchanan “held him in
traction” while an EMT began medical care. Lieutenant Buchanan noted that the
defendant “never even realized that he was in a wreck at that time.” Lieutenant
Buchanan was not able to remove the victim from his vehicle because “there was a very
small hole where the window used to be, but it had crumpled so bad that you could just
barely stick your hand in there to . . . feel around to see if somebody was in the car.”

               Lieutenant Buchanan testified that he was at the crash scene for
approximately 10-15 minutes before emergency responders arrived. He did not provide
additional assistance after law enforcement and other emergency responders arrived on
the scene. He explained that the fire in this case “was in the motor housing” and “started
somewhere near the fuel line.” He saw “just a little bitty puff of smoke,” but water was
unavailable to put the fire out because “it was the dead middle of winter, everything was
froze[n].” The fire grew from a “puff of smoke” to “flames [that were] probably even
forty, fifty foot above the car.” When he and Sean pulled the defendant from his vehicle,


                                           -12-
the defendant’s pants and shoelaces were on fire “but nothing else.” He speculated that
“the fire was so extreme” because there were “two vehicles with both full of gas.”

               Lieutenant Vaughn testified that he arrived on the scene “probably within
five minutes of the initial call.” He described the vehicles at the crash scene as “in
opposing directions, but they were . . . pretty well mated in the right-hand lane that would
have been leaving Elizabethton.” He first saw “a white male in the driver’s seat of a
black sedan” and “started calling out to them.” Lieutenant Vaughn was unable to find a
pulse on that driver and moved to the other side of the vehicle. He saw “several people
off in the ditch line . . . with the driver of the SUV,” later identified as the defendant. It
was unclear whether there were additional passengers in either vehicle, so he “went back
to the vehicles to try to see if [he] could see anyone else.” Deputy Malone arrived on the
scene, and together they attempted to remove the driver from the black sedan. They were
unable to move the victim because he “couldn’t get the doors open” and “the dash was
impacted around him.” He testified that he believed the victim to be deceased because he
was unable to find a pulse, “saw no signs of breathing,” and the victim did not respond to
verbal or physical stimuli.

              Lieutenant Vaughn recalled that while he tried to figure out a way to
remove the victim from his vehicle, “the fire had spread into the engine compartment and
we had -- I mean for safety reasons we had to back off. Things were starting to cook and
pop off.” The vehicles became “fully engulfed” by the fire. After Lieutenant Range
arrived, Lieutenant Vaughn’s role became one “simply for support purposes; any traffic
control needed; if they had any questions; if they needed [him] to do anything for them;
answer -- run interference with people who were showing up on scene.” He also aided
the THP by contacting the victim’s spouse and taking her to the hospital.

             On cross-examination, Lieutenant Vaughn agreed that the road where the
accident occurred was very dark and did not have any street lights or other lighting.

              During redirect examination, Lieutenant Vaughn explained that the area
where the accident occurred was in “a very rural section of the county,” “there’s no
residence that’s close that would [provide] . . . any ambient light from a street light or
anything like that.” That particular stretch of road is “a long straightway. It’s got a
general slope. . . . [T]here’s nothing extreme about that stretch of road. It’s just a . . .
long stretch of highway.” He noted that there are some hills and “the road does bounce
up and down kind of like a roller coaster in places, but . . . it’s not extreme dips[,] it’s just
a rolling highway.”



                                              -13-
              The night of the accident, four CCSD officers, including Lieutenant Range,
were working. Lieutenant Range explained that Carter County had three zones with an
officer assigned to each zone and the shift commander overseeing all three zones. When
a 9-1-1 call came in, the dispatcher notified the officer in the appropriate zone, and if the
call required additional responders, Lieutenant Range would respond or assign another
officer to respond. The night of the accident, a 9-1-1 call came in at 11:10 p.m., and
Lieutenant Vaughn arrived on the scene at 11:16 p.m. Lieutenant Range testified that,
although the CAD notes2 indicated he arrived on the scene at 11:16 p.m., he actually
arrived 12-15 minutes after Lieutenant Vaughn. When he arrived on the scene, he “saw
two vehicles front end to front end on fire” and both vehicles were positioned “in the
southbound lane.”

              Lieutenant Range testified that, in this case, Lieutenant Vaughn assessed
the scene and told him over the telephone “what we had.” Lieutenant Range decided to
call the THP for assistance before he arrived at the crash scene because the CCSD “are
not reconstructionists. We do not have the extensive training in working motor vehicle
accidents that the [THP] has. And when we’ve got something that serious in nature also
being on a state highway . . . it would be best if [THP] investigated the crash.”

               Lieutenant Range testified that Lieutenant Vaughn and Deputy Malone
were at the scene when he arrived, and Deputy Malone had already blocked the road
south of the accident. Lieutenant Range managed traffic on “the north end to allow
emergency vehicles, fire trucks and ambulances . . . to arrive on the scene.” After
blocking off the road, Lieutenant Range left the scene and directed Lieutenant Vaughn
and Deputy Malone to remain at the scene to assist the THP as needed. Lieutenant Range
reviewed the 9-1-1 records and explained that the West Carter County Fire Department
arrived at the scene at 11:22 p.m., and the Elizabethton Fire Department arrived at 11:40
p.m. Lieutenant Range never made contact with the defendant and did not “know
anything about his medical treatment.”

                Trooper Proffitt testified that fire crews and EMS were already on the scene
before he arrived. He saw emergency medical personnel treating a person, later
identified as the defendant, “off to the side of the shoulder of the road,” so Trooper
Proffitt “let them do their job . . . [and didn’t] get in the way of that.” He spoke with one
of the emergency responders but did not make contact with the defendant. He explained
that, in this case, the fire “was the main focus,” but it was being handled by the fire

2
       Although none of the witnesses explained what CAD stood for, Lieutenant Range described it as
“the CAD notes from the 911 system,” and the exhibit appears to be a log of all activity of emergency
responders, other than the THP, dispatched in this case.

                                                -14-
crews. The “other focus, of course, was traffic, which the sheriff’s department was
taking care of.”

               Trooper Proffitt testified that, after learning from other emergency
responders that one person was deceased and that emergency personnel smelled alcohol,
he notified his dispatcher that this crash was a potential vehicular homicide case.
Trooper Proffitt explained that in such cases, a supervisor dispatched to the scene “makes
the call from there as far as the investigation goes. We mark the scene, take pictures, and
then an attempt is made to get a blood sample, and that process.” Sergeant Andes, the
supervisor for this accident, arrived on the scene 15-20 minutes after Trooper Proffitt
notified dispatch of the potential vehicular homicide. After Sergeant Andes arrived,
Trooper Proffitt took on a supporting role, in which he “help[ed] take pictures, mark[ed]
the scene, and protect[ed] the scene, protect[ed] the evidence.” Trooper Proffitt remained
there for four hours. He estimated that it took 45 minutes for the fire crews to extinguish
the fire.

              During cross-examination, Trooper Proffitt testified that he was the first
THP officer on the scene, and when he arrived, the defendant was lying on the shoulder
of the road. He did not speak with the defendant because EMTs were working on him.
He did not observe any alcohol containers in the defendant’s car. There was no
indication that the defendant was driving in excess of the 50 miles-per-hour speed limit.
Trooper Proffitt explained field sobriety tests, but noted that he could not give these tests
to the defendant. He agreed that there were no witnesses to this accident and that he
could not “rule out the possibility of there being . . . an obstruction in the roadway.” He
acknowledged that “possibly” some of the photos of the scene showed snow on the side
of the roadway.

               On redirect examination, Trooper Proffitt clarified that he could not give
the defendant any field sobriety tests because the defendant was incapacitated. He
testified that he did not notice the road being slick or having any patches of ice the night
of the accident.

              Trooper Tester, who had previously worked as a CIRT crash
reconstructionist, testified that he was a patrol officer in Washington County the night of
the crash. He arrived on the scene at 11:39 p.m. He saw vehicles on fire and that “[t]he
fire departments were there. The EMS were there . . . . The sheriff’s department was
there.” He helped Trooper Proffitt “mark the scene,” including “marking the vehicles
where they were at, taking photographs, and basically, that’s about it.” He explained that
“marking a scene” also entailed looking for “gouge marks, scrap marks,” and marking
vehicle and tire locations. The CIRT used this information to “recreate the scene.”
                                            -15-
Trooper Tester described several photographs of the crash scene indicating gouge and
scratch marks and the position of vehicles after the crash. He testified that this crash was
notable because “[i]t was a true head-on crash and both vehicles were in the same lane of
travel, and -- and the fire of course.” He testified that there was no indication at the scene
that either vehicle made any attempt to avoid the crash. He explained that if either
vehicle had attempted to avoid the other, “you’d have an off-angle hit, or different
positioning in the roadway.” He pointed out that the gouge and scratch marks indicating
the point of impact were in the victim’s lane, and the vehicles came to rest in the victim’s
lane. He agreed that the scene was “kind of a mess.” The two vehicles “were together,”
and “[i]t took two wreckers [to] pull[] them apart.”

              On cross-examination, Trooper Tester confirmed that he did not see any
evidence of braking, such as skid marks, at the scene. He described the location of the
accident as a straight part of the road at “a hillcrest.” He explained that CIRT analyzes
the vehicles after a crash and does “a full 360 degree measurement of the vehicle and put
them back to scale” to check for vehicle malfunction.

               On redirect examination, Trooper Tester clarified that the crash occurred
“right on top of the hillcrest.” He described the view from the victim’s direction
ascending the hill as “blind till you get to the top” and explained that a driver traveling in
the same direction as the victim would not have been able to see a car traveling on the
other side of the hill.

              On recross-examination, Trooper Tester agreed that the defendant also
would not have been able to see an oncoming car from his side of the hill. He testified
that there were no brake marks or skid marks from the victim’s direction.

               Sergeant Andes testified that he was a supervisor the night of this incident
and received a call of “a crash with injuries and possible fire.” He testified that, in this
type of incident, he relied “on the troopers, the first officers, the troopers on the scene to
relay the information to [him],” from which information he then discerns whether the
incident will become a felony investigation, in which case, he “would need to notify the
district attorney’s office” and CIRT. Before Sergeant Andes arrived at the scene,
Trooper Proffitt advised him that he “had a confirmed fatality and there may be alcohol
involved.” After Sergeant Andes arrived, Trooper Proffitt informed him that witnesses
had reported smelling alcohol on the defendant. Based on this information, Sergeant
Andes “believe[d he] had to start an investigation.” Sergeant Andes testified that he
attempted to call General Clark at the district attorney’s office, but General Clark did not
answer immediately and did not return his call until “sometime later.” He explained that
he contacted the district attorney’s office to “see if they can offer any assistance, any
                                            -16-
advice certainly.” The defendant had already been transported to the hospital when
Sergeant Andes arrived at the scene, so he wanted to discuss with the District Attorney
“[t]he lack of time to obtain a search warrant for the defendant’s blood due to him being
transported to the hospital.”

              Sergeant Andes testified that he arrived at the crash scene “around
midnight.” He explained that his role as supervisor is “to ensure the steps and the process
of the investigation [are] being completed thoroughly” and “to ensure that the proper
steps are being taken and the guidelines are being met for a proper investigation.” As
part of these duties, Sergeant Andes directed Trooper Shelton to go to JCMC to obtain a
blood sample from the defendant “due to time . . . and the condition of the defendant.”
Sergeant Andes “looked at the scene,” but he “didn’t physically look in cars, or anything.
[He] just observed the crash on the roadway.” He noted that this crash stood out to him
because of how “perfectly head-on in one lane of travel” the cars were positioned in the
victim’s lane of travel. He described the stretch of road where the accident occurred as
“very dark at night” and “a pretty long straightaway with a hillcrest” that limits sight on
the road.

              Trooper Shelton testified that he obtained a blood sample from the
defendant. He testified that while Trooper Proffitt and Sergeant Andes “were en route
[he] was advised to go to the hospital and receive the sample of blood from one of the
drivers.” He arrived at JCMC “right before midnight.” He observed that the medical
personnel “were hurriedly performing life saving measures. There were a lot of people
getting a trauma room ready, a lot of medical staff was running around. It was kind of a
chaotic scene to be honest with you.” He stated that such a chaotic environment for a
blood draw is “[s]omewhat” a-typical, but “[i]t has occurred in the past a few times.”
Trooper Shelton testified that he was trained to “try to get a blood sample as soon as
possible,” but this can be difficult “when it’s a critical situation . . . like this one” because
the medical staff is occupied with medical treatment.

              To obtain a sample of the defendant’s blood, Trooper Shelton “mentioned it
to a couple of the medical staff . . . that was working on [the defendant]” who told him
they would “get to [him] shortly.” Trooper Shelton testified, “After several minutes
when I realized that they were -- appeared to be stabilizing him, or taking him to another
part of the hospital I just kind of got in their way and said, I need some blood and handed
some tubes to them.” He explained that THP officers carry a blood toxicology kit with
tubes to obtain blood samples for analysis, and he used this kit to obtain the defendant’s
blood. He filled out a copy of the blood sample request form and gave it and the tubes to
one of the nurses. According to the blood sample request form, the defendant’s blood
was drawn at 12:20 a.m. Trooper Shelton stated that he witnessed the defendant’s blood
                                              -17-
draw from “a foot or two” away and described the defendant as “appear[ing] very
critical,” and he “felt it was life threatening. [The defendant] was unconscious, not alert,
. . . unable to talk or anything.”

               Sean Ochsenbein testified that he was “a resident at Wake Forest in
Emergency Medicine” and was previously an EMT with the Putnam County Ambulance
Service. On the night of the crash at issue in this case, Mr. Ochsenbein was driving with
his fiancée and “arrived upon a motor vehicle accident.” He stated that he “saw that two
vehicles had had a head-on collision that was quite severe.” He “realized that there was
fire dripping from one of the vehicles” and he “knew that [there] wasn’t a lot of time, so,
something needed to occur quickly.” An off-duty sheriff’s deputy was also at the scene
and was calling 9-1-1. Mr. Ochsenbein, who had also been “a vehicle extrication
instructor for Tennessee EMS,” approached one of the vehicles and determined that the
person inside was deceased because he “had no pulse” and because “there was extensive
entrapment on the car.” He approached the second vehicle and found a person, later
identified as the defendant, coming “in and out of consciousness.” Mr. Ochsenbein and
the off-duty deputy attempted to pull the defendant out of the vehicle through the
window, but were “unsuccessful due to the entrapment and the wreck scene.” Mr.
Ochsenbein attempted to remove the defendant “from the rear” of the vehicle, but the
smoke from the fire made it impossible. Mr. Ochsenbein tied a tow strap between his
vehicle and the defendant’s driver’s side door and was able to pull the door partially off
of the defendant’s car. He cut the defendant out of the seatbelt and “pulled [him] down
onto the ground, but [the defendant’s] legs were still entrapped under the dash of the
vehicle. Mr. Ochsenbein and the off-duty deputy pulled the defendant free from the
vehicle, and Mr. Ochsenbein immediately began administering medical treatment. After
EMS providers arrived, they took over the defendant’s care.

              Tennessee Bureau of Investigation (“TBI”) Special Agent Jonathan
Thompson, a forensic scientist in the toxicology unit of the TBI who was certified as an
expert in toxicology and blood analysis, testified that he performed blood alcohol testing
on the defendant’s blood, and the test results showed the blood sample was “0.225 gram
percent alcohol.” The defendant’s blood sample was not subjected to further testing for
the presence of drugs. Special Agent Thompson explained that a blood alcohol level of
.08 was “pretty significant” because alcohol “is a central nervous system depressant . . . .
[and] can cause an individual to feel drowsy, slurred speech, loss of coordination, loss of
muscle function.”

             April Douglas testified that trauma patients brought into JCMC emergency
room are coded by level. Level one refers to the most serious trauma patients who are
“unresponsive” and “intubated.” According to the defendant’s medical records, he was
                                            -18-
treated as a level one trauma patient. Ms. Douglas explained that when a law
enforcement officer requests a blood sample, her ability to perform the blood draw
“depends on if we have a minute . . . , on how serious the patient is.” Ms. Douglas
assisted the THP in drawing the defendant’s blood in this case.

              On cross-examination, Ms. Douglas agreed that the defendant “was
seriously injured” when he arrived at the emergency room.

              Doctor Martina Schmidt was certified as an expert in forensic pathology.
Doctor Schmidt testified that she reviewed, but did not perform, the victim’s autopsy in
this case. Doctor Schmidt explained the autopsy process, including an external and
internal examination of the body and toxicology. Doctor Schmidt reviewed the victim’s
autopsy report and testified that the victim’s pathologic diagnoses included multiple blunt
force trauma and thermal injury. She explained that blunt force trauma can include
“gunshot wound injuries, or sharp force injuries.” The victim’s cause of death was
multiple blunt force trauma. The victim’s toxicology report revealed the presence of
“Ethanol . . . , Alprazolam, Oxycodone, Phenfermine, Diphenbydramine, [and]
Fluoxetine.” No carbon monoxide was present, which, Doctor Schmidt explained,
indicates the victim was “deceased at the time of the fire.” The victim’s blood alcohol
content “was .256 grams percent.” The drugs revealed in the victim’s toxicology report
included an anti-anxiety sedative, two opiates, an appetite suppressant, an antihistamine-
sedative, and an anti-depressant.

              On cross-examination, Doctor Schmidt testified that the autopsy report
indicated that the victim’s “manner of death is accident” and “[t]he thermal injury
occurred postmortem.” The report also indicated that the victim had been drinking at a
dinner party before driving himself the night of the crash. Doctor Schmidt explained that
the victim’s blood alcohol content was .256, which was more than three times the legal
limit of .08. She confirmed that the level of Oxycodone noted on the victim’s toxicology
report was “in the toxic to potentially lethal range.” Doctor Schmidt agreed that the
amount of alcohol in the victim’s blood would have rendered him under the influence at
the time of the crash.

              During redirect examination, Doctor Schmidt explained the difference
between “cause of death” and “manner of death,” explaining that “[t]he cause of death is
the immediate cause, what made the person stop breathing . . . . Manner of death is the
mechanism for why it occurred.” The manner of death is determined by “the
circumstances surrounding the death.” In vehicular homicide cases, the manner of death
is classified as an accident unless the circumstances indicate that the other person
“intentionally hit [the victim], or intentionally r[a]n them off the road.” Doctor Schmidt
                                           -19-
added that the manner of death listed on the victim’s autopsy report was “the medical
examiner[’s] representation” and not a legal conclusion. She explained that the amount
of drugs in a person’s system can be categorized as sub-therapeutic, therapeutic, super-
therapeutic, toxic, and lethal. She further explained that a person can develop a tolerance
for drugs, such as Oxycodone or Hydrocodone, which could affect whether a dosage is
toxic or lethal to that person.

              On recross-examination, Doctor Schmidt reiterated that she did not perform
the victim’s autopsy in this case and did not know how long he may have been taking any
of the drugs found in his system.

               Doctor Kenneth Ferslew testified that he was a full professor of
pharmacology at the Quillen College of Medicine and the director of the William L.
Jenkins Forensic Center. He stated that, as a toxicologist, he looks at three factors in DUI
cases: (1) whether there is evidence of mis-operation of the vehicle; (2) whether there is
evidence of the driver’s psycho-motor impairment; and (3) whether the driver’s
toxicology report indicates the presence of drugs or alcohol in the blood. Doctor Ferslew
testified that the defendant’s blood alcohol concentration was 0.225 gram percent.
Calculating an average of .022 during the 80 minutes that elapsed between the crash and
the blood draw, Doctor Ferslew estimated the defendant’s “blood alcohol at the time of
the crash would have been a .247.” Based on the defendant’s body weight, he determined
that the defendant consumed “between 4.65 and 5.11 ounces of ethanol” prior to the
crash. The defendant’s blood alcohol concentration was “two and a half, almost three
times over” the .08 limit in Tennessee. Doctor Ferslew described the effects of such a
high level of blood alcohol as including “loss of inhibition,” “change in cognition[] or
ability to concentrate,” “loss of eye/hand coordination,” “delayed reaction time,”
“inability to focus,” and “psycho-motor impairment.” Doctor Ferslew concluded that the
amount of alcohol in the defendant’s system at the time of the crash “would have been
sufficient to impair his ability, or psychomotor capabilities and contributed to his mis-
operation of the vehicle.”

              Doctor Ferslew testified that the victim had a blood alcohol concentration
of 0.256 and was still absorbing alcohol at the time of the crash. The victim’s blood was
negative for carbon monoxide indicating that “he died in the crash and was not breathing
when the fire occurred.” Additional tests revealed that the victim had also ingested
Alprazolam, two opiates, Phentermine, Diphenhydramine, and Fluoxetine. Doctor
Ferslew explained that the victim had “therapeutic concentrations of the opiates . . . [and]
a therapeutic and toxic concentration of the Alprazolam.” The victim “would have been
under the influence of multiple opiates and other CNS depressants, and those can produce
an additive to synergistic effect on him. In other words it can be more impairing because
                                            -20-
he’s combined drugs of multiple mechanisms to CNS depression.” Doctor Ferslew
clarified that “[i]t is not the toxicologist’s position to say what the significance of these
effects are on [the] autopsy. That is a call of the medical examiner, or the forensic
pathologist.” Doctor Ferslew described the drug ranges as, (1) “[s]ub-therapeutic, you
haven’t taken enough drug to produce a response”; (2) “[t]herapeutic, you have taken it
and it has . . . achieved a blood range that gets the desired response”; (3) “[t]oxic, . . .
you’re getting an adverse effect”; and (4) lethal. He explained that “in certain ranges
everyone is going to have an [e]ffect versus no drug being present,” but “[t]he extent of
that effect could be highly variable” in part based on a person’s tolerance of the
substance.

              During cross-examination, Doctor Ferslew agreed that the defendant was
eliminating alcohol from his system, but the victim was absorbing alcohol at the time of
the accident. He acknowledged that the Oxycodone in the victim’s system was in the
“toxic to potentially lethal range.” He explained that this level of opiate combined with
other drugs would cause “a delay in consciousness,” “an altered reaction time,” and “a
loss of cognition.” The additive effects of the victim’s high blood alcohol level with the
drugs would have caused “sedation,” “loss of cognition,” “delayed reaction time,”
“eye/hand coordination problems,” “generalized psychomotor impairment, or a
combination of cognition to motor function.” Doctor Ferslew concluded that the victim’s
alcohol and drug levels would have impaired his ability to operate his vehicle.

              On redirect examination, Doctor Ferslew agreed that the victim and the
defendant would have exhibited similar symptoms resulting from their blood alcohol
levels. Doctor Ferslew noted, however, that he had no indication that the victim mis-
operated his vehicle and “no evaluation of his psychomotor capabilities” because he died
at the scene. Therefore, he could not attest to the level of the victim’s impairment.

               THP CIRT Officer Michael Heatherly, who was certified as an expert in
accident reconstruction, investigated the crash scene in the present case. Another officer
at the scene with CIRT training “mark[ed] and photograph[ed] the scene,” and Officer
Heatherly went to the scene the following day. In beginning his analysis, he met with
“the investigating trooper and the on scene supervisor; g[o]t a rundown of what . . . was
collected, . . . what happened on the scene, what all they did, [and] what needed to be
done.” The CIRT team then took photographs and surveyed the scene. The vehicles
were no longer at the scene when Officer Heatherly did his analysis, but he did examine
the vehicles at the wrecker lot.

          Officer Heatherly described several photographs, noting that “the Jeep
Commander was traveling north and the Lexus was traveling south, and the crash
                                            -21-
happened entirely within the southbound lane.” He identified the point of impact and the
final resting place of the vehicles in the photographs. He stated that this “was just an odd
crash” because neither vehicle rotated after impact and “you can follow the path clearly
from where they impacted to where they final rest.” Officer Heatherly explained that
gouge and scratch marks in the road can indicate “either driver input, some sort of
mechanical failure, [or] something happened to cause that vehicle to come over into that
lane.” Based on the gouge and scratch marks, Officer Heatherly determined that the
vehicles traveled 71 feet after impact, which was not unusual for the weight difference of
the two vehicles. Officer Heatherly testified that there was no evidence at the scene to
indicate that the victim was intoxicated. He also found no evidence that the victim or the
defendant braked before impact.

               Officer Heatherly testified that he conducted an examination of both
vehicles on the day following the crash, checking “for any kind of mechanical failure[]”
and to “see if there’s any evidence of a seatbelt being worn, . . . [or] airbag deployment. .
. . We just look at a little bit of everything for the vehicle mechanically and interior.” He
stated that the “extensive amount of fire damage” made the examination of these two
vehicles difficult, but he did not find any evidence of a mechanical failure. He testified
that he could not determine how fast the vehicles were traveling or whether either vehicle
had its bright headlights on at the time of the crash.

               On cross-examination, Officer Heatherly agreed that the photographs he
took at the crash scene were taken in the daylight, but the accident occurred at night. He
acknowledged that there were no street lights on the part of the road where the accident
occurred. He stated that he did not attempt to speak with the defendant. In conducting
the vehicle inspections, Officer Heatherly examined the tires, suspension, and lights on
the vehicles. He used the general vehicle inspection form in completing the vehicle
examinations and exhibited these forms for both vehicles to his testimony. Officer
Heatherly reiterated that he did not believe speed was a factor in this crash.

              On redirect examination, Officer Heatherly testified that “the damage
profile we did on [the Lexus] . . . was so extensively destroyed by fire we just did a
perimeter of it. . . . [Y]ou can’t really see the damage profile on the front like you can on
the other vehicle.” He did not believe that the removal of the vehicles from the crash
scene impacted the examination of the vehicles.

              The defendant moved for a judgment of acquittal on the ground of
insufficient evidence, which motion the trial court denied. After a Momon colloquy, the
defendant waived his right to testify and presented no evidence.


                                            -22-
              During defendant’s closing argument, the State objected to his arguing facts
not in evidence. The following exchange was had:

                     MR. TAYLOR: . . . Some of the vehicle examination
             reports were admitted in evidence, and you’ll be able to take
             these back there with you to the jury room and look at them.
             The first one I would mention, and again you guys can take
             this back there and look.         Trooper Heatherly in his
             examination of the vehicles he examines the front lights and
             the rear lights. The options that he had to mark on here, in
             use at the time of crash; not in use; damaged/missing. Well,
             on Mr. Oaks Jeep damaged/missing is marked for the front
             lights. Damaged/missing is marked for the rear lights. Look
             at his examination of Mr. Hitechew’s Lexus, front lights,
             damaged/missing; rear lights does he mark damaged/missing?
             No. He marks not in use at the time of the crash, not in use.
             We know that with most cars you turn on the headlights the
             rear lights come on. You turn them off, the rear lights go off.

                    GENERAL ROARK: Judge, I’m going to object. This
             is arguing facts not in evidence.

                   MR. TAYLOR: It was admitted as an exhibit, Your
             Honor.

                    GENERAL ROARK: Well, making inferences that
             things turn on or turn off I just . . .

                    THE COURT: That particular area of questioning was
             not explored. There was no testimony that I recall from the
             Trooper about whether those lights were operable, but that the
             vehicle was damaged to the extent that it could not be
             evaluated, so I’ll sustain that objection.

                   MR. TAYLOR: Your Honor, if I could just briefly be
             heard on it. He said that the front -- there was front end
             damage, but he couldn’t tell anything about the back. Well,
             he authored this report and it’s been admitted as an exhibit
             without objection from the [S]tate and it says unequivocally


                                           -23-
              that the rear lights were not in use at the time of the accident.
              And I think the jury should know that.

                      GENERAL ROARK: Well, Judge, we don’t know if
              those were brake lights. We don’t know if those were
              running lights. We don’t know if those are back-up lights.
              It’s just lights. It’s just a check box, Judge.

                    THE COURT: That[] specific small area was not
              explored. I’ll sustain the objection.

               The jury found the defendant guilty of vehicular homicide by intoxication,
and the trial court imposed an effective sentence of 16 years’ incarceration.

              In his timely motion for a new trial, the defendant argued that the trial court
erred by finding exigent circumstances and admitting the results of his warrantless blood
draw; that the trial court erred by sustaining the State’s objection during the defendant’s
closing argument; and that the evidence was insufficient to support the guilty verdict.
The court denied the defendant’s motion.

               In this timely appeal, the defendant reasserts that the trial court erred by
finding exigent circumstances to justify the warrantless blood draw; that the trial court
erred by sustaining the State’s objection raised during the defendant’s closing argument;
and that the jury’s guilty verdict is not supported by sufficient evidence. The State
contends that the trial court did not err and that the evidence was sufficient to sustain the
guilty verdict.

                                  II. Motion to Suppress

              When reviewing a trial court’s findings of fact and conclusions of law on a
motion to suppress evidence, we are guided by the standard of review set forth in State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
at 23. When the trial court does not set forth its findings of fact upon the record of the
proceedings, however, the appellate court must decide where the preponderance of the
evidence lies. Fields v. State, 40 S.W.3d 450, 457 n. 5 (Tenn. 2001). As in all cases on
appeal, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate view
of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)). We review the trial court’s conclusions of law
                                            -24-
under a de novo standard without according any presumption of correctness to those
conclusions. See, e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher,
989 S.W.2d 295, 299 (Tenn. 1999).

               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) (alteration in
original) (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,
569 U.S. 141, 148 (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, 569
U.S. at 148 (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.



                                           -25-
             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 blood draw in this case.

               “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, 569 U.S. at 149 (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 alleged exigency based “on its own facts and
             circumstances.” Go–Bart Importing Co. v. United States, 282
             U.S. 344, 357 (1931).

McNeely, 569 U.S. at 149-50.

              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,
569 U.S. at 145. The Court ruled,

             In those drunk-driving investigations where police officers
             can reasonably obtain a warrant before a blood sample can be
                                             -26-
              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, 569 U.S. at 152-53. 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 158. 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 160.
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 165
(“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 determining whether an exigency existed to justify a warrantless search,
our supreme court explained,

              [T]he inquiry is whether the circumstances give rise to an
              objectively reasonable belief that there was a compelling need
              to act and insufficient time to obtain a warrant. The exigency
              of the circumstances is evaluated based upon the totality of
              the circumstances known to the governmental actor at the
              time of the entry. Mere speculation is inadequate; rather, the
              State must rely upon specific and articulable facts and the
              reasonable inferences drawn from them. The circumstances
              are viewed from an objective perspective; the governmental
              actor’s subjective intent is irrelevant.

State v. Meeks, 262 S.W.3d 710, 723 (Tenn. 2008) (footnotes omitted) (emphasis added).

             In this case, Trooper Proffitt developed probable cause of the defendant’s
intoxication within only a few minutes of his 11:25 p.m. arrival on the scene. He
immediately notified his supervisor, Sergeant Andes, who arrived on the scene at 11:39
p.m. The defendant was transported from the scene sometime after Trooper Proffitt’s
                                            -27-
arrival but before Sergeant Andes’ arrival on the scene. The defendant did not enter the
operating room until 12:55 a.m., an hour and a half after Trooper Proffitt arrived at the
crash site and 52 minutes after Trooper Shelton arrived at the hospital. Testimony
established that a Washington County General Sessions Court judge lived within a four-
minute drive from the hospital. Perhaps that judge may have been unavailable, but such
is unknowable because no effort was made to contact him or her. Without an effort to
seek a warrant, we cannot conclude that obtaining a warrant would have been
impractical.

               The record indicates that multiple fire departments, EMS units, the CCSD,
and a coroner were present on the scene in addition to three THP officers. The THP
officers at the scene worked solely on the criminal investigation while Sergeant Andes
performed a supervisory role. The seriousness of the crash and the fact that it involved a
fire and a fatality did not, standing alone, create an exigency because the evidence
established that the officers at the scene spent their time processing the scene, preserving
evidence, and interviewing witnesses; they had no responsibilities involving the fire,
emergency medical care, or traffic control.

              Although each trooper testified that there was insufficient time to secure a
warrant before the defendant was taken into surgery, each also testified that he had no
experience obtaining a blood draw warrant prior to this case. Therefore, the officers’
testimony regarding the amount of time it would have taken to secure a warrant during
this case is mere speculation and not based on articulable facts. Trooper Proffitt’s
estimation of the time needed to obtain a warrant was premised on the distance to the
homes of two Carter County judges, but his testimony did not account for the availability
or distance of any Washington County magistrate. The evidence overwhelmingly
established that no officer made any attempt to obtain a warrant or contact any magistrate
to inquire about his or her availability to sign a warrant. In this case, because the
defendant was located in Washington County, a magistrate with jurisdiction in
Washington County would have had to sign the warrant. See Tenn. R. Crim. P. 41(a) (“A
magistrate with jurisdiction in the county where the property sought is located may issue
a search warrant authorized by this rule.”).3 That THP officers may not have the contact
3
        Because Carter and Washington counties are in the same judicial district, a circuit court or
criminal court judge located in Carter County would have jurisdiction to issue a warrant to conduct a
search throughout the judicial district, including Washington County. See State v. Frazier, 558 S.W.3d
145, 146 (Tenn. 2018) (concluding that “the geographical jurisdiction of a circuit court judge [is
confined] to the judge’s statutorily defined and assigned judicial district”); see also T.C.A. 16-2-
506(1)(A) (“The first judicial district consists of the counties of Carter, Johnson, Unicoi and
Washington.”). However, the signature of a circuit court or criminal court judge is not necessary, and a
magistrate in Washington County would also have had jurisdiction to issue a warrant for the drawing of

                                                 -28-
information readily available for all judges in certain counties is not a factor contributing
to exigent circumstances. See State v. James K. Gardner, No. E2014-00310-CCA-R3-
CD, slip op. at 11 (Tenn. Crim. App., Knoxville, Nov. 12, 2014) (stating that “the lack of
experience and knowledge does not give rise to sufficient exigent circumstances
justifying the failure to obtain a warrant”).

               Furthermore, neither Trooper Proffitt nor Trooper Shelton believed at the
time that a warrant was needed to obtain a blood sample from the defendant. Trooper
Shelton stated that he believed the mandatory blood draw statute required the taking of
the defendant’s blood with or without a warrant. Sergeant Andes’ testimony that he did
not believe, in hindsight, that he would have had time to secure a warrant in this case was
based upon his recollection that the defendant was “very critical” and that “once [the
defendant] hit the ER if we weren’t there waiting on him . . . there was no chance for us
to get any blood.” However, the record indicates that Sergeant Andes was told that the
defendant was “very critical” and “it would be a miracle if he made it” shortly after his
arrival at the scene. Yet, Sergeant Andes waited another 20 minutes to order Trooper
Shelton to obtain a blood sample. Mere speculation of a defendant’s need for surgery is
insufficient to support a finding of exigent circumstances. See State v. Micah Alexander
Cates, No. E2014-01322-CCA-R3-CD, slip op. at 13 (Tenn. Crim. App., Knoxville, Sept.
28, 2015) (A law enforcement officer’s “concerns about surgery were based upon nothing
more than mere speculation and were not supported by any specific and articulable facts.
To support a finding of exigent circumstances, the Fourth Amendment demands more.”)
(citing Meeks, 262 S.W.3d at 723)) rev’d on other grounds No. E2014-01322-CCA-R3-
CD, slip op. at 14 (Tenn. Crim. App., Knoxville, July 17, 2017).

              Although Trooper Shelton observed the seriousness of the defendant’s
injuries and learned that the defendant would be taken into surgery, these circumstances
do not justify an exigency because no attempt was made to secure a warrant prior to
Trooper Shelton’s learning of the defendant’s imminent need for surgery. Officers
cannot create an exigency by delaying a decision to seek a warrant.

               The case of Micah Alexander Cates is quite similar to the present case.
Micah Alexander Cates involved “a high impact collision,” and when police officers
arrived at the scene, they found Cates “lying in the roadway with an open fracture to his
leg.” Micah Alexander Cates, slip op. at 2. One officer testified that he was “concerned

the defendant’s blood. During the suppression hearing, Trooper Proffitt and Sergeant Andes speculated
as to the amount of time it would have taken them to secure a warrant based on the distance to the homes
of two Carter County judges; they did not estimate the time to obtain a warrant from a Washington
County judge.

                                                 -29-
not only with the injuries that we observed externally, but [also] the internal injuries that
[Cates] could have.” Id. (first alteration in original). That officer stated that, based on
seeing Cates’s injuries, he “knew that he was going to be going into surgery and [he]
didn’t want anything else to be put into his system prior to us drawing that blood.” Id.,
slip op. at 3. This court reversed the trial court’s finding of exigent circumstances, stating
that “these circumstances [were] not unique nor [did] they, without more, create exigent
circumstances to justify the warrantless blood draw.” Id., slip op. at 13 (“There was no
evidence in the record about the length of time it actually would have taken to obtain a
warrant, and there was nothing to suggest that obtaining a warrant on this particular night
would have taken longer than in other cases.”).

               The State argues that the THP officers here were “concerned that . . . [the
defendant’s] blood would be diluted by life-saving measures before the troopers could
obtain a blood sample”; however, the State presented no proof either at the suppression
hearing or the trial to support such a conclusion. First, the evidence clearly established
that, like the officer in McNeely, the officers did not attempt to obtain a warrant because
they “believed it was not legally necessary to obtain a warrant.” See McNeely, 569 U.S.
at 163. Indeed, as we have indicated, the officers waited more than 20 minutes after
Sergeant Andes’ arrival to order the blood draw and then waited another 17 minutes from
the time Sergeant Andes gave the order for the blood draw and the time the defendant’s
blood was drawn. Moreover, the State adduced no proof that the officers knew, at the
time of the blood draw, that a blood transfusion would be required or of the effect that
drugs or a blood transfusion could have on the results of a blood test. Even if the State
had shown the deleterious effects of the introduction of drugs or donated blood into the
defendant’s system, Sergeant Andes did not know that the defendant would need such
procedures when he made the decision to have Trooper Shelton obtain a blood sample
without a warrant. Sergeant Andes’ speculation about treatment the defendant may have
required is not sufficient to give rise to exigent circumstances. See Micah Alexander
Cates, slip op. at 13.

              This court has found exigent circumstances justifying a warrantless blood
draw only twice since the McNeely decision. See State v. Scarlet I. Martin, No. M2016-
00615-CCA-R3-CD, slip op. at 11-12 (Tenn. Crim. App., Nashville, Feb. 15, 2017)
(finding exigent circumstances because a law enforcement officer worked a crash scene
alone, had to remain at the scene for a tow truck to remove the vehicle, and did not
develop probable cause until two hours after the crash); State v. Darryl Alan Walker, No.
E2013-01914-CCA-R3-CD, slip op. at 6-7 (Tenn. Crim. App., Knoxville, May 20, 2014)
(same). In both of these cases, there was no evidence of intoxication at the scene, and
each officer had to wait for the defendant to complete a medical procedure before
speaking with him or her at the hospital. Scarlet I. Martin, slip op. at 10-11; Darryl Alan
                                            -30-
Walker, slip op. at 6-7. We have declined to apply the exigent circumstances exception
post-McNeely in those cases where more than one officer was present at the scene and
where a similar amount of time passed between the officers’ developing probable cause
and the blood draw. See James K. Gardner, slip op. at 11-12 (refusing to apply exigent
circumstances exception when “[t]he blood draw occurred about forty-four minutes after
the traffic stop began” and “[t]hree law enforcement officers were present at the scene”);
see also State v. Boyce Turner, No. E2013-02304-CCA-R3-CD, slip op. at 10-11 (Tenn.
Crim. App., Knoxville, Dec. 30, 2014) (refusing to apply exigent circumstances
exception when there were “at least five Johnson City police officers that responded to
the scene”); State v. James Dean Wells, No. M2013-01145-CCA-R9-CD, slip op. at 6-7
(Tenn. Crim. App., Nashville, Oct. 6, 2014) (upholding trial court’s finding that no
exigency existed when, among other things, “five officers were simultaneously
investigating the incident”). In the present case, there were multiple officers working the
crash investigation, and probable cause developed within minutes of Trooper Proffitt’s
arrival at the scene.

              We hold that the evidence in the record preponderates against the trial
court’s finding of exigent circumstances, and such a finding was in error.

                                  III. Closing Argument

               The defendant argues that the trial court erred by sustaining the State’s
objection raised during his closing argument. The defendant contends that he drew the
jury’s attention to the vehicle inspection report of the victim’s Lexus “in an attempt to
point out to the jury that the [victim’s] rear lights were ‘not in use’ at the time of the
accident and, therefore, the logical inference would be that the headlights were likewise
off at the time of the collision.” The State argues that, because the defendant did not
question Officer Heatherly about his reporting the victim’s rear lights as “not in use” on
the vehicle inspection form, the defendant was arguing facts not in evidence.

                Our supreme court “has long recognized that closing arguments are a
valuable privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147,
156 (Tenn. 2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978).
Accordingly, counsel for both the State and the defendant are generally permitted “wide
latitude . . . in arguing their cases to the jury.” State v. Bigbee, 885 S.W.2d 797, 809
(Tenn. 1994); see also Terry, 46 S.W.3d at 156. However, “[a]rgument must be
temperate, predicated on evidence introduced during the trial, relevant to the issues being
tried, and not otherwise improper under the facts or law.” State v. Middlebrooks, 995
S.W.2d 550, 557 (Tenn. 1999). “[T]he trial court has significant discretion in controlling
these arguments,” and this court will not overturn a trial court’s decision absent “a
                                           -31-
showing of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing Smith v. State,
527 S.W.2d 737, 739 (Tenn. 1975)).

               In this case, the trial court sustained the State’s objection because “[t]here
was no testimony . . . from the Trooper about whether those lights were operable, but that
the vehicle was damaged to the extent that it could not be evaluated.” The record
supports the trial court’s ruling. The defendant did not question Officer Heatherly about
why he marked the victim’s rear lights as “not in use” but all other lights as
“damaged/missing.” He also did not ask Officer Heatherly to which specific lights “rear
lights” referred. We hold that the trial court did not abuse its discretion by finding that
the defendant’s argument exceeded the permissible bounds of reasonable inferences.

                              IV. Sufficiency of the Evidence

               Finally, the defendant argues that the evidence adduced at trial was
insufficient to sustain his conviction for vehicular homicide. The State asserts that “there
was more than sufficient evidence to show that [the defendant’s] intoxication and his
driving on the wrong side of the road caused the victim’s death.” We agree with the
State.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 324 (1979) (superseded on other grounds); State v. Winters, 137 S.W.3d 641, 654
(Tenn. Crim. App. 2003). This standard applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

             As relevant to this case, Code section 39-13-213(a)(2) provides, “Vehicular
homicide is the reckless killing of another by operation of an automobile . . . as the
                                            -32-
proximate result of . . . [t]he driver’s intoxication, as set forth in § 55-10-401.” T.C.A. §
39-13-213(a)(2). Pursuant to Code section 55-10-401,

              It is unlawful for any person to drive or to be in physical
              control of any automobile or other motor driven vehicle on
              any of the public roads and highways of the state . . . while:

              (1) Under the influence of any intoxicant, marijuana,
              controlled substance, controlled substance analogue, drug,
              substance affecting the central nervous system, or
              combination thereof that impairs the driver’s ability to safely
              operate a motor vehicle by depriving the driver of the
              clearness of mind and control of oneself that the driver would
              otherwise possess; [or]

              (2) The alcohol concentration in the person’s blood or breath
              is eight-hundredths of one percent (0.08%) or more . . . .

T.C.A. § 55-10-401(1)-(2). Furthermore, a blood alcohol concentration of .08 or more
“shall create a presumption that the defendant’s ability to drive was sufficiently impaired
thereby to constitute a violation of § 55-10-401(1).” Id. § 55-10-411(a).

               The State’s evidence established that the defendant was driving his vehicle
while his blood alcohol concentration was .247, which is three times more than the limit
established by statute. See id. § 55-10-401(2). Doctor Ferslew testified that such a blood
alcohol concentration “would have been sufficient to impair [the defendant’s] ability, or
psychomotor capabilities and contributed to his mis-operation of the vehicle.” The
evidence also showed that the defendant was driving in the wrong lane of traffic at the
time of the accident and that he made no last-minute swerve, turn, or other maneuver into
that lane; rather, his northbound vehicle was squarely in the southbound lane of traffic
when the head-on collision occurred. There was no evidence of any mechanical failure
of the defendant’s vehicle. Several law enforcement officers testified that this crash was
unusual in how the vehicles were perfectly aligned in a single lane of traffic. It was
reasonable for a jury to conclude that the defendant was driving in the wrong lane of
traffic because his level of intoxication impaired his ability to safely operate his vehicle.
Accordingly, we hold that the evidence is sufficient to support the defendant’s conviction
of vehicular homicide by intoxication.




                                            -33-
                                       Conclusion

              The trial court did not err by sustaining the State’s objection during the
defendant’s closing argument. Furthermore, the evidence produced at trial was sufficient
to support the jury’s guilty verdict as to vehicular homicide by intoxication; however, the
trial court erred by denying the defendant’s motion to suppress the results of his
warrantless blood draw. Accordingly, we reverse the judgment of the trial court, vacate
the defendant’s conviction, and remand for a new trial.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




                                           -34-
