       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                         MAY SESSION, 1997
                                                            FILED
                                                        January 20, 1998
STATE OF TENNESSEE,             )    C.C.A. NO. 02C01-9612-CC-00485
                                )                      Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
           Appellee,            )
                                )    BENTON COUNTY
                                )
V.                              )
                                )    HON. JULIAN P. GUINN, JUDGE
WILLIAM ROY HOPPER,             )
                                )
           Appe llant.          )    (VEHICU LAR HO MICID E)




FOR THE APPELLANT:              FOR THE APPELLEE:

D.D. MADDOX                     JOHN KNOX WALKUP
MADDOX, MADDOX & MADDOX         Attorney General & Reporter
105 East Main Street
P.O. Box 430                    KENNETH W. RUCKER
Huntingdon, TN 38344            Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                G. ROBERT RADFORD
                                District Attorney General

                                TODD ALAN ROSE
                                Assistant District Attorney General
                                111 Church Street
                                P.O. Box 686
                                Huntingdon, TN 38344


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

       The Defendant, W illiam R oy Ho pper, a ppea ls as of r ight from his con viction

of vehicular hom icide following a jury trial in the Circuit Co urt of Benton C ounty.

Defendant raises five (5) issues in this appeal: (1) whether the trial court erred

by denying his motion to suppress the blood alcohol sample and test results from

the samp le drawn at Bento n Cou nty General Hospital; (2) whether the trial cou rt

erred by denying his motion to suppress the blood alcohol sample and test

results from the sample taken at Vanderbilt University Medical Center; (3)

whether it was error for the trial court to allow the prosecution to introduce

evidence of the testing of a sample of blood drawn at Vanderbilt University

Medical Center from the Defendant without consent and while he was

unconscious; (4) whether his constitutional rights were violated by the use of

blood samples taken while he was unconscious; and (5) whether a comment by

the trial court concerning the contractual status of Smith-Klien-Beecham

Laboratories with the State of Tennessee was plain error.               We affirm the

judgm ent of the tria l court.



       On Decem ber 15, 1995, State Trooper John Clem was on duty when he

came upon a two-car crash on U.S . Highw ay 641 in Cam den, T enne ssee , shortly

after 8:00 p.m . At the scene he found a blue Chevrolet Lumina, driven by the

Defen dant, facing so uthbou nd and a grey C hevrolet M onte Carlo, driven by the

victim, Nelda Johnson, sitting up on a guardrail facing northeast. Trooper Clem

radioed for rescue person nel. He th en approached the blue car and heard the

Defendant making gurgling noises in his throat, and observed that he was still



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breathing. Troo per C lem w ent ove r to the o ther ca r but did not se e anyo ne in

the driver’s seat. He subsequently discovered the victim in the back seat and

was un able to loc ate a pu lse in the victim ’s neck.



       Medical personnel arrived a short time later and confirmed that the victim

was dead.     Rick Davidson, an emergency medical technician with Camden

Gen eral, noticed a strong smell of alcohol on Defendant. Trooper Clem also

noticed a strong odor of alcohol on the Defendant and in his car. Trooper Clem

looked in Defe ndan t’s vehic le and discovered a partially consumed six-pack of

beer, an em pty twelve-pack beer box, another twelve-pack box containing some

beers, two empty beer cans in the passenger side flo orboa rd, and a partia lly full

beer bo ttle in the driver ’s side do or com partme nt.



       The ambulance took the Defendant to C amd en G enera l Hosp ital.

Thereafter, Troop er Clem called the Benton Coun ty Sheriff’s Office and the

Camden Police D epartm ent, and asked them to send o fficers to the h ospital to

request a blood sample from Defendant because he needed to continue his

investigation at the accident scene.            He also told Lori Lessenberry, the

paramedic, that he needed a blood test run on Defendant. Dr. T imothy Linder

treated Defendant in the Camden General Hospital emergency room.                 He

testified that he noticed the smell of alcohol on Defendant while he was intubating

him. At the reque st of Dr. Lind er, Steph anie Floy d, a me dical tech nologist a t

Camden Gen eral H ospita l, collecte d bloo d from the De fenda nt. Floyd ran a

cross-match of Defenda nt’s blood in order to d etermine the type neede d for a

transfusion. Dr. Linder also requested that another sample be taken for the

purpose of determ ining the D efenda nt’s blood alcohol lev el. Dr. Linder testified

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that he did not rec all bein g ask ed by a param edic o n beh alf of Troo per Clem to

draw blood for a blood alcohol test. Floyd sent that blood sample to the Smith-

Klien-Beecham Laboratories to be analyzed for alcohol content because Camden

Gene ral did not h ave the e quipm ent to per form this a nalysis.



      Dr. Linder d ecided to transfer Defendant to Vanderbilt University Medical

Center beca use C amd en G enera l did not have the resourc es to treat D efenda nt.

Camden General notified Vanderbilt of the transfer, the Defendant’s injuries, and

the fact that he smelled strongly of alcohol.         When Defendant arrived at

Vand erbilt, a registered nurse drew a blood sample from the unconscious

Defen dant. Because of Defendant’s physical condition, he was not asked to sign

a consen t form. A m edical tec hnolog ist at Vand erbilt analyz ed the b lood. It

showed that Defendant’s blood alcohol level was .16.          Dr. John Promes was

called as a witness by the defense at trial.         Dr. Promes was one of the

Defenda nt’s attending physicians at Vanderbilt University Medical Center. During

cross-examination, Dr. Promes testified that he was a ware th at a blo od sa mple

was taken from the Defendant for blood alcohol analysis. Dr. Promes further

testified that he relied on these blood alcohol test results in his care and

treatment of Defendant. This sample was destroyed by medical personnel one

week la ter.



      Trooper Clem arrived at Camden General after Defendant had been

transported to Vanderbilt. He asked about the blood sample from Defendant, and

was informed that it “had already gone in with his medical records,” so Trooper

Clem never received the sample. At this point he requested that a sample of

blood be drawn from the victim. This was done and given to Trooper Clem who

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sent it to the TBI crime lab for analysis. The analysis showed no alcohol was

present in the victim’s blood. The analysis by Smith-Klien-Beecham of the blood

drawn from Defendant at Camden General showed his blood-alcohol level to be

.19.   The test was done two days after the accident, and the sample was

destroyed one wee k later bec ause th e lab wa s not aw are that the test results

would b e used in litigation.



       W hile ruling on an objection made by Defendant’s counsel, the trial judge

stated in the jury’s presence tha t it was his understanding that the State of

Tennessee had a co ntract with Smith-Klien-Beecham Laboratories. The Defense

made no objection to this statement. However, a later witness from Smith-Klien-

Beecham stated to the jury that he was not aware of any such contract with the

State of T ennes see. Th e jury con victed the D efenda nt of vehicu lar hom icide.



       Defe ndan t’s first two issues can be considered together.               The

uncontradicted proof in this record is that Trooper Clem asked certain persons

to reque st me dical personnel at Camden General Hospital to withdraw a blood

sam ple from Defendant for a blood alcohol analysis. However, the medical

technologist who drew the sample testified that she did so at the request of D r.

Linder.   Dr. Linder confirmed that in the normal course of his work as an

emergency room physician , he frequ ently requ ests blood alcohol analysis in the

treatment of patie nts. Dr . Linde r did no t recall a nyone askin g him to withdraw

blood at the request of Trooper Clem. Carol Wells, a nurse in the emergency

room at Vanderbilt University Medical Center, testified that she drew blood from

the Defendant during the course of his treatment at that facility. The purpose of

getting the blood alcohol sample was to know how a patient might react if other

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drugs were administered into his system. She further testified that if a patient

cannot give cons ent to draw blood, they do the procedure anyway in order to, if

necessa ry, save the patient’s life. There is no question concerning the extensive

nature of injuries to the Defendant, and that the Defendant remained unco nscious

for thirteen (13) days after being admitted to Vanderbilt.          Dr. Promes, the

attending physician at Vanderbilt, testified that he was aware the blood sam ple

was taken from th e Def enda nt for blo od alc ohol a nalysis , and that he exp licitly

relied on the blood alcohol test results from the Defendant in his care and

treatme nt of Defe ndant.



      Defendant argues on appeal that there is no proof that the blood alcohol

test results were a ctually used for medical purposes either at Camden General

Hospital or Vand erbilt Unive rsity Medical Ce nter. In fact, it is undisputed that the

test results from the blood drawn at Camden General were not available until two

(2) days after the blood was drawn from Defendant, during which time he had

already been transferred to Vanderbilt University Medical Center. However, in

State v. Ridge, 667 S.W.2d 502 (Tenn. Crim. App. 1982), our Court held in a

vehicular homicide case that “the sample of blood drawn pursuant to a medical

request was analyzed by hospital personnel and the resu lts of that analysis were

properly adm itted into evidence.” Id. at 505 (emp hasis adde d).



      Even though Trooper Clem attempted to request the hospital personnel to

draw blood from the Defe ndant fo r a blood alcohol te st, the record reflects that

this request was never com mun icated to the m edica l perso nnel w ho ac tually

drew the blood which led to the test results later admitted into evide nce in this

case. There is nothing in the cas e law wh ich require s proof tha t the test res ults

                                          -6-
were actually us ed for m edical pu rposes . It is only require d that the blood be

drawn pursuant to a m edica l request. Therefore, D efendant’s first two issue s are

without m erit.



       Defe ndan t’s third issue that the trial court erred by allowing the prosecution

to introduce the test results of a blood sample drawn from Defendant while at

Vand erbilt University Medical Center without his consent and while he was

uncon scious is like wise witho ut merit.



       The Defendant argues that since a consent and release form for

withdrawal of blood by Vanderbilt was not signed by the Defendant or by anyone

else on his behalf, then the use by the State of the test results as evidence was

improper. He states in his brief that there is no lawful right for a hospital or

medical personnel to draw blood from any patient for medical purposes when the

patient refuses, or would refuse, if the patient was able to do so. Ho wever,

Defendant does not cite an y authority to this Court for that proposition or how that

proposition would prohibit introduction of the evidence in a criminal case during

the State’s case in chief. Ridge clearly holds that blood drawn pursuant to a

medical request and analyzed for blood alcohol content may be properly admitted

into evidence. 667 S.W .2d at 505. While it is correct that Tennessee Code

Annotated sectio n 55-1 0-406 (b) pro vides th at the b lood a lcoho l test results of

blood drawn from a person who is unconscious or otherwise unable to consent

to the test is not admissible without the consent of the person so tested, that

statute only applies to situations where a law enforcement officer requests the

test to be m ade. Ridge, 667 S.W.2d at 505. It is conc eded by De fenda nt in his

brief that law enforc eme nt office rs did n ot requ est withdrawal of the blood at

                                            -7-
Vanderbilt University Medica l Center. Defen dant may o r may not ha ve a valid

dispute with Van derbilt Un iversity Medical Ce nter. Howeve r, there is nothin g in

the law that prohibits introduction of the evidence of the blood alcohol te st results

from Vand erbilt U niversity Medic al Cen ter sim ply because that institution did not

obtain a consent form from Defendant to withdraw the blood.



       In his fourth issue, Defendant argues that he is denied his equal protection

of the law since he was in a class of perso ns wh ere ev idenc e of blo od alc ohol is

admitted into evidence when the person is unconscious, but under similar

circumstances, blood alcohol test results would not be available against persons

who are conscious and able to refuse consent to draw blood.



       Defendant cites State v. Tester, 879 S.W .2d 823 (Te nn. 1994) in su pport

of his argu ment o n this issue . In essence, the Defendant argues there are two

classes of perso ns involve d in his eq ual prote ction argume nt: Those w ho are

conscious, and those, like himse lf, who are unconscious when taken to medical

facilities for treatment wh ere blo od alc ohol te sts m ight be advan tageo us in

treatme nt.   We do no t feel tha t the pu rporte d class ifications set forth by

Defendant are subject to equal protection analysis. The case law which allows

admis sibility into eviden ce of bloo d alcoho l test results ta ken pursuant to a

medical request does not distinguish between blood drawn from conscious and

unconscious persons. Simply because a conscious person might refuse consent

to withdraw blood during me dical treatmen t, and therefore prevent the withdrawal

of the blood, does not rise to the creation of two classifications which are treated

unequa lly. In his brief, Defendant also makes a passin g argum ent that his rights

to due p rocess , his right to be protecte d from s elf-incrimin ation, and his right to

                                          -8-
be protected against unlawful searches and seizures, was violated. However, he

cites no authority in s upport o f this argum ent, and therefore it is waived. Tenn.

R. App. P. 27(a)(7); Te nn. Ct. Crim. A pp. R. 10(b). In any event, we find these

assertion s by De fendan t to be witho ut merit.



       In his final issue, Defendant argues that it was plain error for the trial court

to make a com ment, while ruling on an objection made by defense counsel, that

Smith-Klien-Beecham Laboratories had a contract with the State of Tennessee

to do bloo d alcoho l analysis tes ts.



       The Defendant argues in his brief that it was an issue during the jury trial

as to wheth er or not th e Sm ith-Klien-B eecha m Lab oratories had a co ntract with

the State of Tennessee to perform the blood alcohol test for use in criminal

proceedings. How ever, h e doe s not c ite to an y portio n of the record where this

was a material issue in the case. Tenn. R. App. P. 27(a)(7) and (g); Tenn. Ct.

Crim. App. R. 10(b). In any event, our review of the record reflects that whether

or not the State had a contract with Smith-Klien-Beecham Laboratories was not

a material issue. No objection was m ade b y the D efend ant to th e trial co urt’s

comm ent. Neithe r was th is issue included in Def enda nt’s m otion fo r new tr ial.

As such, the issue is waived on appeal. Tenn. R. App. P. 36() and 3(c). In any

event, we do not feel that the trial court’s comments, if error, rise to the level of

“plain error” as it does not affect “the substantial rights of an accused.” Tenn. R.

Crim. P . 52(b).



       Finding no error in the issues raised by Defendant, we affirm the judgment

of the trial cou rt.

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                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Judge


___________________________________
JOHN H. PEAY, Judge




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