           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                             Assigned on Briefs March 11, 2015

             STATE OF TENNESSEE v. PATRICK LEE MITCHELL

                  Appeal from the Circuit Court for Williamson County
                    No. I-CR077407       Michael W. Binkley, Judge




                    No. M2014-01129-CCA-R3-CD - Filed May 22, 2015


Pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure, the defendant, who
pleaded guilty to a single count of driving under the influence (“DUI”), appeals a certified
question of law related to the trial court’s denial of his motion to suppress the results of blood
alcohol testing. Discerning no error, we affirm the judgment of the trial court.

               Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and R OGER A. P AGE, JJ., joined.

Eric L. Tate Davis, Franklin, Tennessee, for the appellant, Patrick Lee Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General (Senior Counsel); Kim R. Helper, District Attorney General; and Carlin C. Hess,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

              Originally charged with alternative counts of DUI following a traffic stop of
his vehicle in Franklin after he struck a curb while executing a right turn, the defendant
pleaded guilty to a single count of DUI for having a blood alcohol level of .16 percent in
exchange for the dismissal of the remaining charge and a sentence of 11 months and 29 days
probation.1 With the consent of the State and the trial court, the defendant reserved the
following certified question of law pursuant to Rule 37(b) of the Tennessee Rules of


       1
         The transcript of the guilty plea submission hearing is not included in the record on appeal. We
glean this information from other documents in the record.
Criminal Procedure:

                 Did the trial court err in denying the defendant’s Motion to
                 Suppress thereby allowing the defendant’s .16 grams % blood
                 alcohol test result as evidence at any trial herein where after the
                 defendant’s arrest for Driving Under the Influence-1st Offense
                 pursuant to T.C.A. § 55-10-401 and where thereafter the
                 defendant repeatedly refused his consent for a blood draw in
                 violation of T.C.A. § 55-10-406, but where the defendant was
                 transported to the Williamson Medical Center for a mandatory
                 blood draw pursuant to T.C.A. § 55-10-406(f)(2) [now
                 (d)(5)(B)], and while awaiting the mandatory blood draw, the
                 defendant consented to the same?

The trial court incorporated by reference in the judgment form an order specifying the
question and memorializing the agreement of the court and the parties that the question was
dispositive of the case against the defendant. See Tenn. R. Crim. P. 37(b)(2)(A).

              Essentially, the defendant concedes that he consented to having his blood
drawn but argues that his consent was not valid because it was coerced by the threat of the
mandatory blood draw provision of Code section 55-10-406, which provision he claims is
“inherently coercive.” The State argues that the defendant gave actual and voluntary consent
to the blood draw in this case.2

                At the hearing on the defendant’s motion, Trooper Charles Achinger testified
that after a fellow trooper placed the defendant under arrest for DUI shortly after 10:00 p.m.
on March 17, 2013, he asked the defendant if he would consent to a blood or breath test to
determine the drug or alcohol content of his blood. The defendant refused. After making
arrangements for the defendant’s vehicle to remain in the parking lot where the arrest took
place, Trooper Achinger read the Implied Consent Form to the defendant and again asked


        2
          The State did not, at any point, argue that the results of the blood alcohol test in this case were
admissible because the defendant was subject to the mandatory blood draw provision of Code section 55-10-
406, possibly because another Williamson County trial judge had declared that provision unconstitutional
just before the suppression hearing in this case.                  See State v. Charles A. Kennedy,
M2013-02207-CCA-R9-CD (Tenn. Crim. App., Nashville, Oct. 13, 2014). In Charles A. Kennedy, we
concluded that the challenged provision was constitutional but that it did not dispense with the constitutional
requirement that police obtain a search warrant before conducting a mandatory blood draw pursuant to the
statute. Id., slip op. at 18. In any event, because Trooper Achinger did not obtain a search warrant and the
State did not demonstrate any other exception to the warrant requirement, we agree that the issue of the
defendant’s consent is indeed dispositive. See id.

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whether he would submit to a blood or breath test. The defendant again refused. At that
point, Trooper Achinger explained to the defendant that because he had a prior conviction
of DUI, the defendant would be subjected to a mandatory blood draw and that his refusal to
submit to testing would result in his being charged with violating the implied consent law.
The defendant again refused, and the trooper transported him to the hospital for a mandatory
blood draw.

               At the hospital, the defendant and Trooper Achinger went into “the isolation
room . . . . where the police take people . . . to get their blood drawn,” and he again “went
over the consequences” of the defendant’s refusal to submit to blood alcohol testing. He told
the defendant that his refusal could result in the loss of his driver’s license and that his blood
would be drawn despite his refusal under the terms of the implied consent law. At that point,
the defendant “changed his mind and said he would consent.” Trooper Achinger said that
he did not charge the defendant with violating the implied consent law. The defendant then
signed the form consenting to have his blood drawn at the hospital at 11:18 p.m.

               During cross-examination, Trooper Achinger said that he did not have the
defendant sign the implied consent form memorializing his initial refusal because the
defendant was handcuffed. He said it was not his practice to remove handcuffs at the scene
of an arrest. He did not remove the defendant’s handcuffs until he was at the hospital for the
blood draw. Trooper Achinger said that he did not act out of a motivation to coerce the
defendant into consenting to the test, explaining, “I had no motivation – it was a mandatory
blood draw on him, so I was going to get it and that’s what I told him. . . . Doesn’t matter
to me.” He said that he did “want [the defendant] to make a good decision. He could get a
whole another charge added on. . . . I think that it’s just silly for somebody to do that when
they know that there’s a mandatory blood draw.” He said that, while at the hospital, he
informed the defendant that “even if he is not convicted of DUI, if he gets charged with
implied consent, he will still lose his license for a year.” It was following this admonition
that the defendant changed his mind and consented to the blood draw. He said it was his
understanding that the defendant could change his mind and consent to the test up until the
mandatory blood draw occurred.

               The defendant testified that he initially refused to submit to blood alcohol
testing because he “was scared” and had “made up [his] mind” that he “wasn’t going to do
that.” The defendant confirmed Trooper Achinger’s testimony that the two did not talk on
the way to the hospital. The defendant said that Trooper Achinger “was very courteous, very
nice” but that “he just kept pushing” the defendant to consent to the blood test. He said that
he did not want to have his blood drawn but that he “wasn’t going to fight” or “resist that.”
He said that he could not remember signing the consent form but acknowledged his signature
on the form. He said that he did not recall whether he had signed the form at the hospital or

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at the jail. He said that all of the events of the evening were “kind of a blur.” The defendant
acknowledged telling Trooper Achinger that he was “not going to resist” the blood test but
said that he did not mean that statement as consent and instead intended to “imply[]” that he
“wasn’t going to make trouble.”

              During cross-examination, the defendant said that he could not remember what
he thought he might have been signing. He said that the only reason he “might have signed
it” would have been “because of the pressure was being put on [him] to sign it.” The
defendant acknowledged that his recollection of the events of the evening was not good,
explaining that he had “a good recollection of a lot of things that happened” but not the
sequence of events.

                At the conclusion of the hearing, the trial court noted that Trooper Achinger’s
testimony was clear and his recollection of events was sure and that the defendant’s
testimony, on the other hand, was unclear. The court found that the defendant initially
refused blood alcohol testing “three or four times” before the trooper advised him a final time
of the consequences of his continued refusal, and the defendant changed his mind and
consented. The court observed that the defendant could not recall whether he signed the
consent form before or after the test or whether he or Trooper Achinger placed the check
marks in the box. The court found that “the threat of a mandatory blood draw is not, in and
of itself,” sufficient to undermine the voluntariness of the defendant’s consent. The court
again stated that the defendant was “not as clear at all about what happened” and observed,
“That is the most important part of this lawsuit, and if he’s not sure, what other testimony do
I have to rely upon. I have the officer’s testimony. . . . I’m left with the officer’s testimony
which appears to be clear.”

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

              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

                                              -4-
unreasonable searches and seizures, shall not be violated . . . .”); Tenn. Const. art. I, § 7
(“That the people shall be secure in their persons, houses, papers and possessions, from
unreasonable searches and seizures . . . .”). “[T]he most basic constitutional rule in this area
is that ‘searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well-delineated exceptions.’” Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also
State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). “The exceptions are ‘jealously and
carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.’” Coolidge, 403 U.S. at 455
(quoting Jones v. United States, 357 U.S. 493, 499 (1958), and McDonald v. United States,
335 U.S. 451, 456 (1948)). “We are not dealing with formalities. The presence of a search
warrant serves a high function.” McDonald, 335 U.S. at 455. Thus, a trial court necessarily
indulges the presumption that a warrantless search or seizure is unreasonable, and the burden
is on the State to demonstrate that one of the exceptions to the warrant requirement applied
at the time of the search or seizure. See, e.g., Missouri v. McNeely, 133 S. Ct. 1552, 1558
(2013) (“Our cases have held that a warrantless search of the person is reasonable only if it
falls within a recognized exception.”).

               Consent to search, voluntarily given, acts as an exception to both the state and
federal warrant requirements. Florida v. Bostick, 501 U.S. 429, 438 (1991) ( stating that the
“decision to cooperate with law enforcement officers authorizes the police to conduct a
search without first obtaining a warrant only if the cooperation is voluntary”); Schneckloth
v. Bustamonte, 412 U.S. 218, 243 (1973) (stating that “there is nothing constitutionally
suspect in a person’s voluntarily allowing a search”); State v. Bartram, 925 S.W.2d 227, 230
(Tenn. 1996). To satisfy the constitutional reasonableness standard, the consent must be
“‘unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.’”
State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998) (quoting State v. Brown, 836 S.W.2d
530, 547 (Tenn. 1992)). “The question of whether an accused voluntarily consented to the
search is a question of fact which focuses upon the totality of the circumstances.” State v.
Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999) (citing Schneckloth, 412 U.S. at
248-49).

               Here, the trial court accredited Trooper Achinger’s testimony that although the
defendant initially refused to submit to the blood draw, he eventually changed his mind and
voluntarily consented. The evidence does not preponderate against this finding. The
defendant testified that he was “nervous” and that he felt “pressured,” but his testimony fell
short of establishing that Trooper Achinger actually obtained his consent to search via
coercion or intimidation. Indeed, the defendant testified that Trooper Achinger never treated
him with anything other than courtesy. The 46-year-old defendant had previously been

                                              -5-
convicted of DUI, indicating at least some familiarity with the justice system. We cannot say
under these circumstances that the defendant’s initial refusal establishes that he did not later
voluntarily consent to the blood draw. See State v. McCrary, 45 S.W.3d 36, 43 (Tenn. Crim.
App. 2000) (“Logan’s initial hesitation in no way establishes that her subsequent consent was
involuntary, but rather reflects her consideration of the option, confirmed by the trooper, to
refuse consent.”). Additionally, the record does not establish that the defendant’s consent
was rendered involuntary by the threat of a mandatory blood draw. At the time of the
defendant’s arrest, Code section 55-10-406(f)(2) did, in fact, mandate the taking of his blood.
See T.C.A. § 55-10-406(f)(2) (2012) (“[T]he officer shall cause the driver to be tested for the
purpose of determining the alcohol or drug content of the driver’s blood. The test . . . shall
be performed regardless of whether the driver does or does not consent to the test.”)
(emphasis added). This court has since held that “Code section 55-10-406(f)(2) does not
dispense with the warrant requirement.”                 State v. Charles A. Kennedy,
M2013-02207-CCA-R9-CD, slip op. at 18 (Tenn. Crim. App., Nashville, Oct. 13, 2014).
That being said, our ruling in Charles A. Kennedy does not transform Trooper Achinger’s
informing the defendant that he would be subjected to a mandatory blood draw into a
“‘[b]aseless threat[].’” Ashworth, 3 S.W.3d at 30 (“‘Baseless threats to obtain a search
warrant may render consent involuntary.’” (quoting United States v. White, 979 F.2d 539,
542 (7th Cir. 1992)).

              Because the evidence does not preponderate against the trial court’s finding
that the defendant voluntarily consented to the blood draw, we affirm the judgment of the
trial court.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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