        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

                  STATE OF TENNESSEE v. A.D. SMITH, III

                          Criminal Court for Shelby County
                                    No. 1301710



             No. W2015-00133-CCA-R9-CD - Filed December 15, 2015




JOHN EVERETT WILLIAMS, J., dissenting.


      I respectfully disagree with the conclusions of the majority opinion for two
reasons. First, the implied consent law does not satisfy the consent exception to the
warrant requirement of the Fourth Amendment. Second, the evidence does not
preponderate against the trial court‟s findings that the defendant did not freely and
voluntarily, and without duress or coercion, consent to the blood test.

        The statute under which the defendant was charged, Tennessee Code Annotated
section 55-10-406(d)(5)(B), requires a mandatory blood draw, but it does not do so while
eliminating the Fourth Amendment‟s warrant requirement. The statute is silent as to
whether a warrant is required for this mandatory blood draw, and this court has
concluded that the provision was not intended “to operate as a blanket exception to the
warrant requirement.” State v. Charles A. Kennedy, No. M2013-02207-CCA-R9-CD,
2014 WL 4953586, at *12 (Tenn. Crim. App. Oct. 3, 2014); see also State v. James Dean
Wells, No. M2013-01145-CCA-R3-CD, 2014 WL 4977356, at *13 (Tenn. Crim. App.
Oct. 6, 2014). The majority opinion, and the cases cited by the opinion, interpret the
mere act of operating a motor vehicle as dispensing with the need for a warrant to
perform a blood alcohol test and creating a per se exception to the warrant requirement.
This reasoning, however, necessitates “a conclusion that the legislature intended to create
an exception to state and federal constitutional warrant requirements,” which would
render the statute unconstitutional. Charles A. Kennedy, 2014 WL 4953586, at *13.
Additionally, a forcible blood draw is “an invasion of bodily integrity” that “implicates
an individual‟s „most personal and deep-rooted expectations of privacy.‟” Missouri v.
McNeely, 133 S. Ct. 1552, 1558 (2013) (quoting Winston v. Lee, 470 U.S. 753, 760
(1985)). As a result, I conclude that “the privilege of driving does not alone create
consent for a forcible blood draw,” and “such a search is not reasonable unless performed
pursuant to a warrant or to an exception to the warrant requirement.” James Dean Wells,
No. M2013-01145-CCA-R3-CD, 2014 WL 4977356, at *13.

        Considering the totality of the circumstances, I agree with the trial court that there
is no evidence that the defendant freely and voluntarily consented to the blood draw.
Consent will be invalid “[i]f the defendant‟s will was overborne and his or her capacity
for self-determination [was] critically impaired.” State v. Cox, 171 S.W.3d 174, 185
(Tenn. 2005). The majority concludes that the totality of the circumstances illustrate that
the defendant voluntarily consented to the blood draw. However, the record reflects that
the officers conveyed the “threat” of a mandatory blood draw to the defendant in such a
way that his consent could not have been voluntary. Both officers testified at the hearing
that it did not matter whether the defendant consented because the law permitted the
taking of the blood sample. The trial court found that even if Officer Richardson
explained the implied consent law, he did so while creating the impression that the
defendant had no option but to submit to the blood testing. The defendant testified that,
after his arrest, he felt that he had no choice but to consent to the blood draw. The trial
court also found that the defendant appeared “to have made no verbal or written consent
to the procedure,” seeming to implicitly credit the testimony of the defendant over the
testimony of Officer Richardson that the defendant verbally agreed to the blood draw.
Any consent given by the defendant was a product of duress and coercion, and it was not
voluntary. Therefore, I would defer to the trial court‟s credibility determinations and
affirm the judgment of the trial court granting the motion to suppress.


                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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