            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                             MAY 1998 SESSION
                                                     September 18, 1998

                                                    Cecil W. Crowson
STATE OF TENNESSEE,                *    No. 01C01-9705-CC-00175 Clerk
                                                  Appellate Court

                Appellant,         *    Williamson County

vs.                                *    Hon. Henry Denmark Bell, Judge

LONNY D. HAZELWOOD,                *    (Rule 9, Interlocutory Appeal)

                Appellee.          *




For Appellee:                           For Appellant:

Edward P. Silva                         John Knox Walkup
P.O. Box 664                            Attorney General & Reporter
Franklin, TN 37065
                                        Lisa A. Naylor
Roger Reid Street, Jr.                  Assistant Attorney General
339 Main Street                         425 Fifth Avenue North
Franklin, TN 37064                      Cordell Hull Building, Second Floor
                                        Nashville, TN 37243-0493

                                        Derek K. Smith
                                        Assistant District Attorney General
                                        P.O. Box 937
                                        Franklin, TN 37065-0937




OPINION FILED:___________________________


AFFIRMED AND REMANDED


GARY R. WADE, PRESIDING JUDGE
                                      OPINION

              On July 8, 1996, the defendant, Lonny D. Hazelwood, was charged

with driving under the influence. The trial court suppressed the results of a blood

alcohol test. The State of Tennessee filed this interlocutory appeal. Rule 9, Tenn.

R. App. P. The single issue for review is whether the trial court erred by

suppressing the results of the blood alcohol test.



              We affirm the ruling of the trial court. This cause is remanded for

further proceedings consistent with this opinion.



              The defendant's preliminary hearing was initially scheduled for

September 25, 1996. Although the defendant was in attendance, the state did not

have the blood alcohol test results and the hearing was continued to November

10th. On that date, the blood alcohol test results were still unavailable. A second

continuance was granted to the state and the preliminary hearing was rescheduled

for December 18, 1996. On that date, when the state was still unable to produce

the blood alcohol test results or its primary prosecution witness, the general

sessions judge dismissed the charges against the defendant for failure to prosecute.



              Almost three months later, the state presented the matter to the grand

jury which returned a true bill of indictment, charging the defendant with driving

under the influence. Within days, the defendant filed a motion for discovery

requesting the results of the blood alcohol test. On the following day, February 27,

1997, the state presented the defendant with an official report showing that the

Tennessee Bureau of Investigation had tested the blood sample shortly after the

arrest and that the defendant's blood alcohol level registered 0.13%. Six days later,

the defendant requested that the sample be preserved for independent testing.


                                           2
Assistant District Attorney Derek Smith attested that he called the TBI laboratory on

March 7, two days after the request by the defense, to have the sample preserved.

At that time, he was informed that the sample had been destroyed within twenty-four

hours of the time the state provided the defendant with a copy of the official report.



              Defense attorneys Reid Street and Ed Silva attested that they had

requested the results of the blood alcohol test from the district attorney's office on

eight occasions since July 22, 1996, and were informed as late as February 24,

1997, that the results were not available. At the evidentiary hearing, each of the

defense attorneys contended that they had no knowledge whether a test had ever

been performed on the sample until they were notified in late February.



              At the suppression hearing, the state maintained that defense counsel

should have filed a motion requesting access to the sample for independent testing

between the July 1996 arrest and the February 1997 indictment. The state also

argued that defense counsel should have contacted the TBI directly and directed the

agency to preserve the sample.



              Dr. Dawn King, a toxicologist for TBI, tested the blood sample. She

testified that the agency policy is to enter the results of the test into the computer

upon its completion. She related that the computer generates a report and that an

agency secretary then sends the report by regular mail to the district attorney. The

report includes a notice that the sample will be destroyed sixty days after testing.

Dr. King testified that she tested the sample in question on July 18, 1996, and

placed the results in the computer on July 22, 1996.



              The trial judge, noting that the state was caught in a "catch 22,"


                                            3
concluded that if the state prevailed in its argument, the defendant would then have

a Sixth Amendment ineffective assistance of counsel claim. He also observed that

the statute did not contemplate that eight months would pass before the state

submitted the matter to the grand jury and that the blood might have been destroyed

as early as September of 1996. In granting the motion to suppress, the trial judge

held that the negligence of the state had effectively deprived the defendant of his

right to a preliminary hearing:

              [It is] neglect to have the person in charge of the
              prosecution go one, two, three times to the preliminary
              hearing, a right the defendant has, without the evidence
              which th[is] judge infers got there and was there and the
              first time [the state] knew [the report was there] is when
              the evidence was presented to the grand jury, by which
              time this evidence, in the ordinary course of events, ...
              would have been long gone.

(Emphasis added).



              The findings of fact at a suppression hearing are conclusive on appeal

unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18

(Tenn. 1996); State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981); Graves

v. State, 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973); see Tenn. R. Crim. P.

12(e). Yet this court must conduct a de novo review of the trial court's application of

law to the facts. State v. Bridges, 963 S.W.2d 487, 489 (Tenn. 1997); State v.

Yeargan, 958 S.W.2d 626, 628 (Tenn. 1997).



              The statute mandates disclosure of the blood alcohol test results

"upon request." Tenn. Code Ann. § 55-10-409 (emphasis added). The person

tested is also entitled to a sample of blood for independent testing. Tenn. Code

Ann. § 55-10-410(e). The statute is silent as to how long blood samples must be

held to accommodate the rights of the accused.



                                           4
              A preliminary hearing is a critical stage of criminal prosecution

designed to determine whether there is probable cause to believe that the accused

committed the alleged offense. Tenn. R. Crim. P. 5.1. A defendant arrested before

an indictment is handed down has the right to a preliminary hearing. If the

defendant is indicted while awaiting a preliminary hearing, he or she may move to

have the indictment dismissed, so long as the motion is made within thirty days of

arrest. Tenn. R. Crim. P. 5(e). After the thirty-day period, a defendant may move to

dismiss the indictment only upon a showing of bad faith on the part of the state or

court. Moore v. State, 578 S.W.2d 78 (Tenn. 1979).



              In State v. Golden, this court held that the prosecution, acting in bad

faith, had denied Golden the right to a preliminary hearing. 941 S.W.2d 905, 906

(Tenn. Crim. App. 1996). In that case, Golden was charged with possession of drug

paraphernalia. Before his preliminary hearing, he moved to suppress evidence he

claimed had been unlawfully obtained during the search of his vehicle. As he called

the arresting officer to testify at the suppression hearing, the state represented that

it would not oppose the motion to suppress. The general sessions court granted the

motion and dismissed the case. Id. at 906. Within a month, the state, relying on the

testimony of the arresting officer, obtained an indictment from the grand jury. The

trial court dismissed the indictment, ruling that Golden had been denied his

preliminary hearing due to the acts of the prosecutor. Id. This court affirmed,

finding that the state had acted in bad faith:

              Bad faith may be defined as the state of mind involved
              when one is not being faithful to one's duty or obligation.
              The duty of a prosecutor is twofold. ... [H]e is the
              guardian of the state's interest. At the same time, the
              prosecutor is the protector of the rights of the accused.
              At all times, the prosecutor's goal remains, not that he
              shall win a case, but that justice shall be done.

Id. at 908 (internal citations omitted).


                                            5
              In our view, the office of the district attorney general failed to fulfill its

obligations in this case. The trial judge, who found that the district attorney's office

had or should have had possession of the test results but negligently failed to

present them at three scheduled preliminary hearings, obviously suppressed the

evidence. The state had the statutory obligation to provide the defendant with the

results of the test and the opportunity for independent analysis. Through no fault of

his own, the defendant was denied his right to a preliminary hearing. Suppression

of the test results was the proper remedy in this instance. The state should not gain

a tactical advantage by neglecting the duties of its office.



              Accordingly, the judgment of the trial court is affirmed and this cause is

remanded to the trial court for further proceedings consistent with this opinion.



                                            __________________________________
                                            Gary R. Wade, Presiding Judge

CONCUR:



_________________________________
David G. Hayes, Judge



_________________________________
Jerry L. Smith, Judge




                                             6
