                                                                                            12/15/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                October 17, 2017 Session

         STATE OF TENNESSEE v. KATHERINE HART COLLIER

                   Appeal from the Circuit Court for Maury County
                       No. 25122       Stella Hargrove, Judge


                             No. M2017-00511-CCA-R3-CD


The State of Tennessee appeals the Maury County Circuit Court’s orders suppressing
evidence and dismissing the indictment, which charged the Defendant with driving under the
influence (DUI), DUI per se, violating the implied consent law, failure to maintain a motor
vehicle within a lane of traffic, and violating the open container law. On appeal, the State
contends that the trial court erred by granting the Defendant’s motion to suppress the blood
alcohol concentration (BAC) evidence and by dismissing the indictment. We conclude that
the trial court did not err by suppressing the evidence but that the court erred by dismissing
the indictment in its entirety. Although we affirm the dismissal of the indictment count
charging DUI per se, we remand the case to the trial court for reinstatement of the remaining
charges in the indictment and for further proceedings.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                     Part; Reversed in Part; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

John S. Colley III, Columbia, Tennessee, for the appellant, Katherine Hart Collier.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Brent Cooper, District Attorney General; and Adam C. Davis, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

       This case involves a March 13, 2016 traffic stop, during which the Defendant was
arrested for DUI and related offenses. The Defendant did not consent to a blood draw in
order to determine her BAC level, and as a result, the arresting officer obtained a search
warrant from a magistrate to obtain the Defendant’s blood for an analysis. On December 30,
2016, the Defendant filed a motion to suppress, which challenged the validity of the warrant
and sought a dismissal the indictment.

                                   Preliminary Hearing

       At the preliminary hearing, Maury County Police Officer Ashton Matheny testified
that on March 13, 2016, he saw the Defendant’s car drive across the center line and that he
followed the Defendant for about one mile. Officer Matheny stated that he saw the
Defendant’s car drive across the center line several times and that he stopped the
Defendant’s car at about 7:40 p.m. Officer Matheny said that the Defendant’s speech was
slurred, that her breath smelled of alcohol, and that two children were in her car. Officer
Matheny said that he asked the Defendant if she had been drinking and that she admitted
drinking wine at about 4:00 p.m.

       Officer Matheny testified that he asked the Defendant to get out of the car, that the
Defendant said she did not know why she was stopped, and that the Defendant asked if he
were “trying to frame her.” Officer Matheny said that he knew the Defendant was the city
manager and that he told her he was not trying to frame her. Officer Matheny stated that the
Defendant performed the walk-and-turn and the one-leg stand tests and that the Defendant
did not follow instructions and performed the tests poorly.

       Officer Matheny testified that he arrested the Defendant for DUI, that he drove the
Defendant to the hospital, and that the Defendant refused to consent to a blood draw. Officer
Matheny said that he took the Defendant to the jail and that he applied for a search warrant.
He stated that the magistrate granted the search warrant and that he and the Defendant
returned to the hospital for a blood draw.

        Officer Matheny testified that the affidavit and search warrant marked “original”
listed the time of issuance as “2044 a.m.” and that the Defendant’s copy of the warrant listed
the time of issuance as “2244 p.m.” Officer Matheny said that both the original search
warrant and the Defendant’s copy listed the time of execution as “2100.” Officer Matheny
said that the warrant was issued at “2044” and that the time discrepancies were clerical
errors.

       Officer Matheny testified that a form for an affidavit and search warrant was
maintained on file, that he printed four forms, and that he filled in each blank on each form.
Officer Matheny stated that he provided the four forms to Maury County Magistrate
Lawrence Bull and that Magistrate Bull filled in the date and time and signed each form.
The State asked Officer Matheny if each form would be “just a little bit different in terms of
how they’re written,” and Officer Matheny said that the wording would be the same on each
form but the penmanship would be different.


                                             -2-
       On cross-examination, Officer Matheny compared the original search warrant with the
Defendant’s copy and testified that the forms looked identical, noting he “wrote them all.”
Officer Matheny stated he did not know at the time of the blood draw that the time of
issuance on each warrant was different. Officer Matheny said that he did not inform
Magistrate Bull after the blood draw that a mistake existed and that he did not know the time
entered in the magistrate’s logbook had been changed from “2244” to “2044.” Officer
Matheny stated his copy of the warrant did not reflect a time of issuance.

        Officer Matheny testified that the Defendant was unable to walk heel-to-toe during
the field sobriety test and that she used her arms for balance, took an incorrect number of
steps, and made an improper turn. Officer Matheny said that he asked the Defendant to
“imagine a straight line” from the bumper of his police car to the Defendant’s car because no
roadway line was available. Officer Matheny stated that he did not recall whether the
roadway had a center line when he stopped the Defendant’s car but conceded the roadway
might have had a fog line. Officer Matheny said that the Defendant displayed poor balance
on the one-leg stand test.

       Officer Matheny testified that he did not believe Magistrate Bull was present when he
returned the Defendant to the jail after the blood draw. Officer Matheny stated that the arrest
warrants were entered as “2205” in the magistrate’s logbook and that Magistrate Bull logged
the arrest warrants. On redirect examination, Officer Matheny testified that he filled out
each warrant individually after printing the forms from a computer.

       Maury County Magistrate Lawrence Bull testified for the defense that he filled in the
date and the time of issuance on each search warrant and that he mistakenly circled “a.m.” on
the original warrant. Magistrate Bull stated that he signed the four search warrants and that
he was unaware of the time discrepancies until after the warrant was executed. Magistrate
Bull said that he changed the time of issuance in his logbook from “2244” to “2044” while
documenting the search warrant and that he immediately caught his error. Magistrate Bull
acknowledged that he wrote a time of “2244” on Officer Matheny’s affidavit and on the
Defendant’s copy of the search warrant and that the times were clerical errors.

        Magistrate Bull testified that he was present when Officer Matheny arrived at the jail
after the blood draw and that he entered the arrest warrants for the Defendant in the logbook
at “2205.” Magistrate Bull was asked if the original and the copies of the search warrant had
to be “identical,” and he responded, “I would say so.”

      The general sessions court found that probable cause existed but refused to rule on the
motion to suppress the blood analysis results because the analysis had not yet been



                                              -3-
completed. The court, however, opined that the time discrepancies were clerical errors and
that Officer Matheny’s testimony was credible.

                                    Motion to Suppress

       Officer Matheny testified that he arrested the Defendant at about 7:30 p.m., that he
drove her to the hospital, and that she refused to provide a blood sample. Officer Matheny
said that he took the Defendant to the jail and that he left her in the booking area while he
applied for a search warrant.

       Officer Matheny testified that forms for the affidavit and the search warrant were
contained in a “single packet” and that he printed and completed the original forms. Officer
Matheny said that he made a copy of the affidavit and search warrant for his and the
magistrate’s records and that he made a third copy for the Defendant. Officer Matheny
stated that he filled in the blanks on the original before making copies with a photocopy
machine and that he made one original and three identical copies of the search warrant.

       The original affidavit and search warrant were received as an exhibit and reflected
“original” written in the top right corner. The Defendant’s copy of the search warrant was
received as an exhibit and reflected “Defendant” written in the top right corner. Another
copy of the search warrant was received as an exhibit but did not reflect a party designation
in the top right corner. The magistrate’s copy of the affidavit and search warrant was
received as an exhibit and reflected “Court” written in the top right corner. Officer
Matheny’s copy was received as an exhibit and reflected “Officer” written in the top right
corner. Officer Matheny stated that his copy of the search warrant appeared to be identical to
the copy without a party designation in the top right corner. Officer Matheny said that he
took the search warrants to the magistrate and that the magistrate signed them.

       Officer Matheny recalled stating at the preliminary hearing that he had filled out each
form individually. He testified, though, that he did not have an opportunity to review the
documents before the preliminary hearing and that he realized the week before the motion to
suppress hearing that he had testified incorrectly at the preliminary hearing.

       Officer Matheny testified that the original search warrant listed the time of issuance as
“2044,” that “a.m.” was circled on the form, and that the time of 2044 a.m. did not exist in
military time. Officer Matheny stated that the time of issuance on the Defendant’s copy of
the warrant was “2244” and that “p.m.” was circled. Officer Matheny said that the
magistrate’s copy listed the time of issuance as “2244” and that neither “a.m.” nor “p.m.”
was circled. Officer Matheny stated that his copy did not reflect a time of issuance.




                                              -4-
        Officer Matheny testified that he did not know why each warrant reflected different
times and that he was present when the magistrate signed the warrants. Officer Matheny said
that he was not aware of the time discrepancies before the blood draw and that he received a
telephone call from the district attorney informing him of the discrepancies before the
preliminary hearing.

       The magistrate’s logbook was received as an exhibit. Officer Matheny testified that
the magistrate changed the logbook entry time relative to the search warrant issuance time
from “2244” to “2044.” Officer Matheny said that after the magistrate signed the search
warrants, he took the Defendant to the hospital for the blood draw, and that he took the arrest
warrants to Magistrate Bull afterward. Officer Matheny stated that the logbook reflected the
time of entry for the arrest warrants as “2205.”

        On cross-examination, a “complaint card” was received as an exhibit, and Officer
Matheny testified that the card was “a time base of events that happened while on-call.”
Officer Matheny stated that according to the card, the Defendant was in custody at “1940:58”
and that they arrived at the hospital at “2003.” Officer Matheny said that he and the
Defendant returned to the hospital at “2049,” that they arrived at the hospital at “2052,” and
that they arrived at the jail at “2100 and [ten] minutes.” The request for a blood draw form
was received as an exhibit and reflects a time of “2110 p.m.”

       Officer Matheny testified that Magistrate Bull wrote the “date, the month and the
time” on the original affidavit and search warrant but that Magistrate Bull did not sign or
date Officer Matheny’s copy of the warrant. Officer Matheny stated that he did not change
the time in the magistrate’s logbook and that he did not discuss the time discrepancies with
Magistrate Bull until after the preliminary hearing.

       Officer Matheny testified that he informed the grand jury that he obtained a search
warrant and of the results of the blood analysis. Officer Matheny said that he did not address
the time discrepancies on the warrants or the magistrate’s logbook in the grand jury
proceeding. Officer Matheny stated that he thought he was testifying truthfully at the
preliminary hearing.

        On redirect examination, Officer Matheny testified that he reviewed the preliminary
hearing transcript the week before the suppression hearing. Officer Matheny said that the
district attorney told him a handwriting expert would be called to testify about whether the
forms were originals or photocopies. When asked, “And is it then that you decided that
instead of making four originals back on March 13, 2016, you made one and made copies of
them,” Officer Matheny responded, “Yes sir.”




                                              -5-
        Upon examination by the trial court, Officer Matheny testified that he had sought a
search warrant from a magistrate “[m]aybe one time prior.” Officer Matheny stated that he
left the magistrate’s office with the original warrant and all of the copies, except the
magistrate’s copy, and that he believed the warrants were identical.

        Thomas Vastrick, a forensic document examiner and handwriting analysis expert,
testified that he reviewed the original affidavit and search warrant, the copies of the affidavit
and search warrant, and the magistrate’s logbook. Mr. Vastrick stated that he was highly
confident that the time in the logbook had been altered and that he was moderately confident
that the time was changed from “2244” to “2044.” Mr. Vastrick said that the magistrate’s,
officer’s, and the Defendant’s affidavits and search warrants were photocopies of the original
affidavit and search warrant.

      Magistrate Bull testified that he entered the Defendant’s search warrant into the
logbook directly after he issued the warrant. Magistrate Bull stated that he may have written
“2244” in the logbook initially but was unsure. Magistrate Bull said that he did not know
when he changed the time to “2044” in the logbook but that he tried to correct a mistake.

        Magistrate Bull testified that he signed the original affidavit and search warrant and
each copy of the warrant, that he wrote the date and time on each warrant, and that he gave
the warrants to Officer Matheny. Magistrate Bull stated that the time on the original
affidavit was “2244,” that the time on the original search warrant was “2044 a.m.,” and that
he made a mistake while completing the forms. Magistrate Bull did not recall if he signed
the original warrant first but said the time on the Defendant’s copy of the search warrant was
“2244 p.m.” Magistrate Bull stated that his copy of the affidavit showed the time as “2247”
but that the time on the search warrant was “2244.” Magistrate Bull said that the time
discrepancies were clerical errors.

       Magistrate Bull testified that he inadvertently wrote the incorrect time in the logbook
and that he “obviously made a change in [the logbook] to reflect a timeline that was not –
inaccurate.” Magistrate Bull denied changing the time of issuance on the search warrants
and said that he had no explanation why all of the versions of the affidavits and search
warrants were not identical.

       On cross-examination, Magistrate Bull testified that he signed each affidavit and
search warrant individually and that he changed the time in the logbook from “2244” to
“2044” while logging the arrest warrants. Magistrate Bull recalled stating at the preliminary
hearing that he changed the time in the logbook as soon as he issued the search warrant but
that he could not definitively state when he changed the time. Magistrate Bull said that he
did not have a conversation with Officer Matheny about the time discrepancies, that he first



                                               -6-
learned of the discrepancies when he received a subpoena, and that the discrepancies
occurred because he made a mistake.

       Upon examination by the trial court, Magistrate Bull testified that at the time of the
hearing, he had been a magistrate for “just over a year” and that the Defendant’s search
warrant was the first warrant he had issued without any assistance. Magistrate Bull stated
that he did not fill in the officer’s name on his copy of the search warrant, that his copy of
the warrant had a time of issuance of “2244,” and that he realized at the preliminary hearing
the importance of all of the documents being identical.

       Although the trial court filed a written order after the motion hearing, the trial court
made limited findings of fact and conclusions of law from the bench. The court noted that
Tennessee Rule of Criminal Procedure 41(c)(3)(D) required that a magistrate endorse on the
warrant the hour, date, and name of the officer to whom the warrant was delivered for
execution. The court found that the officer’s name was not filled in correctly on all of the
warrants and that the officer’s name was left blank on Magistrate Bull’s copy. The court
found, though, that the mistake was not fatal. The court also found that the time was not
exact on each warrant and that the error was fatal because Rule 41(d) required the magistrate
to “prepare an original and two exact copies of each search warrant.” The court granted the
Defendant’s motion to suppress the blood analysis results.

        The trial court inquired as to whether the State would proceed on the remaining
charges if it dismissed the DUI per se charge, and the State said that it could proceed based
on Officer Matheny’s testimony and a video recording of the Defendant’s performance on
the field sobriety tests. The court asked the State whether Officer Matheny had the blood
analysis results with him during his grand jury testimony, and the State responded
affirmatively. The court determined that the State was prosecuting the Defendant based on
the indictment and that one of the elements the grand jury focused on during its deliberation
was the blood analysis results. The court dismissed the indictment in its entirety.

        In the trial court’s written order granting the motion to suppress and dismissing the
indictment, the court found that at the preliminary hearing, Officer Matheny testified eight
times that he made four originals of the search warrant to obtain the Defendant’s blood and
that he made a clerical error resulting in the warrant showing various times of issuance. The
court found, without making a finding regarding Officer Matheny’s intent, that based upon
his testimony at the suppression hearing, Officer Matheny testified “incorrectly” at the
preliminary hearing.
        The trial court found that Officer Matheny maintained he had written four originals of
the warrant until one week before the suppression hearing at which time he was confronted
with a preliminary hearing transcript and Mr. Vastrick’s determinations that three of the four
were photocopies and that the magistrate’s logbook entry had been altered. The court found


                                              -7-
that Officer Matheny admitted at the suppression hearing that his preliminary hearing
testimony was incorrect.

       The trial court found that of the six times Magistrate Bull endorsed the time of
issuance, two provided an issuance time of 2244 p.m., two provided an issuance time of
2244, one provided an issuance time of 2044 a.m., and one originally provided an issuance
time of 2244 but was changed by Magistrate Bull to 2044. The court found that neither
Magistrate Bull nor Officer Matheny could explain satisfactorily how the various times could
have been entered on the search warrant copies as a matter of simple negligence or clerical
error. The court determined, as a result, that the disparate times in the versions of the search
warrant and the logbook were not the result of clerical errors. The court also determined that
it was “not impressed” with Officer Matheny’s testimony that he might have confused this
case with another case in which the photocopy machine was “broken,” resulting in his
handwriting all four search warrants.

        The trial court determined that Magistrate Bull failed to comply with Tennessee Rule
of Criminal Procedure 41, requiring the magistrate to endorse upon the search warrant the
time of issuance and to prepare an original and two exact copies. Although the court
acknowledged the Exclusionary Rule Reform Act, providing that evidence obtained based
upon a warrant which included “technical violations” shall not be suppressed, the court
found that the discrepancies in the various copies of the warrant “were not the product of
mere negligence or clerical error.” The court determined that Officer Matheny’s and
Magistrate Bull’s explanations for how the errors occurred and how they attempted to correct
them were not credible. The court, likewise, determined that it “cannot afford . . . a ‘good
faith’ exception under the facts of this case.” Relying on due process principles and State v.
Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993), the court determined that Officer
Matheny “repeatedly failed to testify truthfully . . . regarding the search warrant used to
obtain the Defendant’s blood sample” and “used the illegally obtained blood test results to
procure [an] indictment.” The court granted the Defendant’s motion to suppress the
evidence and determined that the appropriate remedy was a dismissal of the indictment in its
entirety. This appeal followed.

A.     Motion to Suppress Evidence

       The State contends that the trial court erred by granting the Defendant’s motion to
suppress, arguing that the magistrate’s writing the incorrect time of issuance on the copies of
the search warrant was a clerical error. The Defendant responds that the trial court properly
suppressed the evidence obtained based upon the warrant.

       A trial court’s findings of fact on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);


                                              -8-
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the
“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928
S.W.2d at 23. The prevailing party is entitled to the “strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State v. Hicks, 55 S.W.3d
515, 521 (Tenn. 2001). A trial court’s application of the law to its factual findings is a
question of law and is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997). In reviewing a trial court’s ruling on a motion to suppress, this court may
consider the trial evidence as well as the evidence presented at the suppression hearing. See
State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998); see also State v. Williamson, 368
S.W.3d 468, 473 (Tenn. 2012).

         The Fourth Amendment to the United States Constitution and Article I, section 7 of
the Tennessee Constitution “safeguard the privacy and security of individuals against
arbitrary invasions of government officials.” Camara v. Municipal Court, 387 U.S. 523, 528
(1967); see State v. Hayes, 337 S.W.3d 235, 251 (Tenn. Crim. App. 2009). Tennessee
Criminal Procedure Rule 41 governs the issuance and execution of search warrants. Rule
41(c)(3)(D) states that “[t]he magistrate shall endorse on the search warrant the hour, date,
and name of the officer to whom the warrant was delivered for execution.” Rule 41(c)
provides mandatory “procedural safeguards . . . intended ‘to secure the citizen against
carelessness and abuse in the issuance and execution of search warrants.’” State v. Coffee,
54 S.W.3d 231, 233-34 (Tenn. 2001) (quoting Talley v. State, 345 S.W.2d 867, 869 (Tenn.
1961)). The purpose of the magistrate’s endorsement required by Rule 41(c) is “to ensure
that if a search warrant is executed prior to its issuance, such discrepancy will be apparent on
the face of the warrant.” State v. Bobadilla, 181 S.W.3d 641, 645 (Tenn. 2005).

       Rule 41(d) states,

       The magistrate shall prepare an original and two exact copies of each search
       warrant. The magistrate shall keep one copy as a part of his or her official
       records. The other copy shall be left with the person or persons on whom the
       search warrant is served. The exact copy of the search warrant and the
       endorsement are admissible evidence.

Rule 41(g)(1) permits

       [a] person aggrieved by an unlawful or invalid search or seizure [to] move the
       court . . . to suppress any evidence obtained in the unlawful search or seizure. .
       . . The motion shall be granted . . . if the evidence in support of the motion
       shows that . . . the search or seizure was made . . . illegally with an invalid


                                              -9-
       search warrant, or in any other way in violation of the constitutional protection
       against unreasonable searches or seizures[.]

Rule 41(g)(5) also requires suppression of the evidence if “the magistrate did not . . . make
an original and two copies of the search warrant . . . or did not endorse on the warrant the
date and time of issuance and the name of the officer to whom the warrant was issued[.]”

       The original search warrant reflects a time of issuance of 2044 a.m., which does not
exist. The defendant’s copy of the warrant, though, reflects a time of issuance of 2244 p.m.
The copy retained by Magistrate Bull reflects only 2244. Therefore, copies of the warrant do
not comply with Rule 41(d) requiring one original and two exact copies of the search
warrant. The State concedes that the warrant and the copies fail to comply with Rule 41(d).
We note that the original warrant reflects the warrant was executed at 2100 and that the
complaint card reflects that the blood draw was requested at 2110 p.m.

       The record supports the trial court’s determination that the search warrant failed to
comply with Rule 41 because the original and the copies of the warrant are not identical and
do not reflect on the face of the documents that the blood draw occurred before the search
warrant was issued by the magistrate. Our supreme court has concluded that a warrant must
“explicitly show that it was issued then executed.” Bodadilla, 181 S.W.3d at 645. Based
upon this principle, this court has concluded that “[l]ogically, in order to ensure that the
warrant is first issued, then executed, not only must the time be endorsed, but the accurate
time must be endorsed.” Hayes, 337 S.W.3d at 254 (emphasis in original).

        However, the Exclusionary Rule Reform Act, codified after Bodadilla and Hayes,
states the following:

       Notwithstanding any law to the contrary, any evidence that is seized as a result
       of executing a search warrant issued pursuant to . . . Tennessee Rules of
       Criminal Procedure Rule 41 that is otherwise admissible in a criminal
       proceeding and not in violation of the constitution of the United States or
       Tennessee shall not be suppressed as a result of any violation of this part or
       any violation of Tennessee Rules of Criminal Procedure Rule 41 if the court
       determines that such violation was the result of a good faith mistake or
       technical violation made by the law enforcement officer, court official, or the
       issuing magistrate[.]

T.C.A. § 40-6-108(a) (2014). A good faith mistake or technical violation is defined, in
relevant part, as “[a]n unintentional clerical error or clerical omission made by a law
enforcement officer, court official or issuing magistrate in the form, preparation, issuance,



                                             -10-
filing and handling of copies, or return and inventory of a search warrant[.]” Id. § 40-6-
108(c)(1).

        Although the State argues that the time of issuance discrepancies were mere clerical
errors, the trial judge explicitly discredited the Officer Matheny’s and Magistrate Bull’s
explanations how the time discrepancies occurred and how each of them attempted to correct
the discrepancies. Questions about the “credibility of the witnesses, the weight and value of
the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact.” Odom, 928 S.W.2d at 23. The record reflects inconsistent
accounts of how the warrant and the copies were prepared, of when the magistrate and the
officer learned of the discrepancies, and of how each attempted to correct the discrepancies.

        At the preliminary hearing, Officer Matheny testified that he printed four uniform
search warrants and that he completed each form individually. He stated that the original
warrant and the Defendant’s copy of the warrant were identical, but during cross-
examination, he conceded the times of issuance were not identical and denied knowing the
magistrate’s logbook showed the time of issuance had been modified from 2244 to 2044. At
the suppression hearing, though, Officer Matheny testified that he completed the original
affidavit and search warrant and subsequently made three duplicates using a photocopy
machine. He said that he realized about one week before the suppression hearing that he had
testified incorrectly at the preliminary hearing regarding the procedure he followed to make
the original and three copies of the warrant. Officer Matheny could not explain the
discrepancies in the times of issuance, and he agreed the magistrate’s logbook had been
modified to reflect a time of issuance from 2244 to 2044. However, Officer Matheny also
testified that he received a telephone call from the district attorney informing him of the
discrepancies before the preliminary hearing.

       Magistrate Bull testified at the preliminary hearing that he signed four search warrants
and that he was unaware of the discrepancies until after the warrant was executed. He said
that he changed the time of issuance in his logbook from 2244 to 2044 when he initially
entered the search warrant into the logbook but that he immediately caught his error. At the
suppression hearing, Magistrate Bull was less certain and testified that he did not know when
he changed the time of issuance to 2044 and could not explain why the warrants were not
identical. On cross-examination, Magistrate Bull testified that he changed the time of
issuance in his logbook to 2044 when he entered information relative to the Defendant’s
arrest warrants. He could not, with any certainty, explain to the trial court when he changed
the time in his logbook.

        Although the trial court intentionally did not render a finding relative to the intent of
the officer and the magistrate, the court determined that neither witness could explain how
the discrepancies were the result of negligence or clerical error. The record does not


                                              -11-
preponderate against the court’s finding in this regard, based upon the court’s discrediting
the testimony from the magistrate and the officer, the inconsistent testimony provided by
each witness, and the absence of a definitive explanation for the discrepancies during the
suppression hearing. As a result, the record does not preponderate against the court’s
determination that the discrepancies were not mere technical violations or good faith
mistakes.

        Furthermore, the State’s reliance on State v. Pruitt, 510 S.W.3d 398 (Tenn. 2016), is
misplaced. The search warrant in Pruitt reflected two dates, October 18 and 19, rendering
unclear from the face of the warrant whether it was issued before it was executed. The
officer who obtained the warrant testified at the suppression hearing that the warrant was not
executed until the magistrate endorsed and issued the warrant. The officer also explained
that the time discrepancy could have been due to the late hour at which the warrant was
obtained, near midnight, or that the magistrate had simply made a mistake when completing
the warrant. Id. at 409. Our supreme court concluded that the warrant would have been
invalid pursuant to Rule 41 because it was not clear whether the issuance occurred before the
execution. Id. The court’s analysis, though, continued to determine, pursuant to the
Exclusionary Rule Reform Act, whether the time discrepancy was a mere technical violation
that would have saved an otherwise invalid search warrant. The court noted that the only
evidence at the suppression hearing was the warrant itself and the officer’s testimony, that
the officer testified that the warrant was issued before it was executed, and that the trial court
determined the statute validated the search warrant because the discrepancy in the dates was
a good faith mistake or technical violation. Id. at 418. The Pruitt court determined that
based upon the limited evidence at the suppression hearing, the credibility of the officer’s
testimony was critical to the trial court’s ruling. Id. The Pruitt court stated that although the
“actual error” was “a textbook example of a clerical error made during the preparation of the
search warrant,” it was the implicitly credited testimony of the officer that “tend[ed] to show
that the clerical error was unintentional.” Id.

        However, in the present case, the trial court discredited the testimony from Officer
Matheny and Magistrate Bull that the time discrepancies were simple mistakes and clerical
errors, and this court will not disturb those credibility determinations. We note that the trial
court found that the officer “repeatedly failed to testify truthfully . . . regarding the search
warrant used to obtain the Defendant’s blood sample.” Similar to Pruitt, whether the
evidence obtained by the warrant should have been excluded hinges on the credibility of the
witnesses. Because the trial court discredited the witness testimony in this case, we conclude
that the record supports the trial court’s determination that the discrepancies were not the
product of negligence, technical violations, or good faith mistakes. As a result, we conclude
that the court did not err by suppressing the evidence of the Defendant’s BAC level obtained
pursuant to a search warrant. The State is not entitled to relief on this basis.



                                              -12-
        We note that DUI per se is defined as the “unlawful . . . [driving] . . . of any
automobile or other motor driven vehicle on any public roads and highways of the state . . .
while the alcohol concentration in the person’s blood or breath is eight-hundreds of one
percent (0.08%) or more[.]” T.C.A. § 55-10-401 (2012). In this case, the State cannot prove
beyond a reasonable doubt that the Defendant’s BAC was 0.08% or greater at the time of the
traffic stop without the blood analysis results. Because we have concluded that the trial court
did not err by suppressing the BAC evidence, the court also did not err by dismissing the
indictment count alleging DUI per se. We will now consider whether the dismissal of the
indictment in its entirety was proper.

B.     Dismissal of the Indictment

         The State also contends that the trial court erred by dismissing the indictment, arguing
that the court failed to make findings relative to how the Defendant had been prejudiced in
her efforts to present a defense. The State argues that no legal authority supports the court’s
decision to dismiss the indictment based upon a witness’s erroneous testimony to an issue
that is irrelevant to any issue at a trial. The Defendant responds that the State’s complicity in
the conduct of Magistrate Bull and Officer Matheny required a dismissal of the indictment.

        “A citizen has the right to due process of law under the Fourteenth Amendment to the
United States Constitution and under the ‘law of the land’ provision of article I, section 8 of
the Tennessee Constitution.” State v. Culbreath, 30 S.W.3d 309, 317 (Tenn. 2000). “[D]ue
process is flexible and calls for such procedural protections as the particular situation
demands.” Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993) (internal
citations omitted). A dismissal of an indictment returned by a grand jury is a rarely used
remedy, but such remedy may be appropriate when a defendant is denied the constitutional
right of due process. See id. This court has held that “an indictment may be dismissed ‘on a
proper showing of grand jury abuse.’” State v. Charles Raymond, No. M2000-03083-CCA-
R3-CD, 2002 WL 31051628, at *10 (Tenn. Crim. App. Aug. 30, 2002) (quoting U.S. v.
Claiborne, 765 F.2d 784, 791 (9th Cir. 1985)).

       In dismissing the indictment, the trial court found that the Defendant’s due process
rights were violated because the State “used the illegally obtained blood test results to
procure [an] indictment.” This court has held that “a grand jury can consider evidence
obtained in violation of an accused’s constitutional rights notwithstanding the fact the
evidence will be inadmissible at the ensuing trial.” State v. Dixon, 880 S.W.2d 696, 700
(Tenn. Crim. App. 1992). In fact, the “legality of the evidence considered by a grand jury is
not subject to judicial review.” Id. Therefore, we conclude that the trial court erred by
dismissing the indictment on the basis that the grand jury considered the suppressed evidence
showing the Defendant’s BAC level. The Defendant’s due process rights were not violated
on this basis.


                                              -13-
        Additionally, the trial court relied, in part, on State v. Spurlock, which notes that “the
[S]tate’s knowing use of false testimony to convict an accused is violative of the right to a
fair and impartial trial as embodied in the Due Process Clause of the Fourteenth Amendment
to the United States Constitution and Article I, [section] 8 and 9 of the Tennessee
Constitution.” 874 S.W.2d at 617. However, the court purposefully did not render findings
relative to Officer Matheny’s and Magistrate Bull’s intent. Although the record shows that
the court found that the witnesses provided “incorrect” and “false” testimony relative to how
the original search warrant and the copies were prepared and that the witnesses could not
explain the time discrepancies, no evidence shows that the State knowingly presented false
testimony during any proceeding. Likewise, no evidence shows that Officer Matheny or
Magistrate Bull knowingly testified falsely. The court found that the witness testimony was
not credible, which led to the suppression of the blood analysis results. However, we
conclude that the testimony was not unfairly prejudicial to the Defendant in relation to the
remaining counts of the indictment and that the court erred by dismissing the indictment in
its entirety.

         The trial court asked the State during the motion to suppress hearing whether it
would proceed to a trial without the blood analysis results. The State responded that it would
proceed with the DUI, violating the implied consent law, failure to maintain a motor vehicle
within a lane of traffic, and violating the open container law allegations. The State said that
the remaining evidence included a video recording of the Defendant’s performing the field
sobriety tests and Officer Matheny’s testimony relative to the traffic stop and to the
Defendant’s demeanor and performance on the field sobriety tests. This evidence is
sufficient to permit the State to continue its prosecution of the remaining charges.

        In consideration of the foregoing and the record as a whole, the order of the trial court
suppressing the evidence is affirmed. The order of the trial court dismissing the indictment
in its entirety is reversed, and the case is remanded to the trial court for dismissal of the DUI
per se charge, reinstatement of the remaining charges, and for further proceedings.


                                             _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




                                              -14-
