                                                                                           08/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 10, 2017 Session

              STATE OF TENNESSEE v. ROBERT A. FRANKLIN

                Appeal from the Criminal Court for Hamilton County
                          No. 286862 Don W. Poole, Judge
                     ___________________________________

                           No. E2017-00334-CCA-R3-CD
                       ___________________________________

The Hamilton County Grand Jury indicted Robert A. Franklin, the Defendant-Appellant,
for driving under the influence of an intoxicant (DUI by impairment), driving while the
alcohol concentration in his blood or breath was 0.08% or more (DUI per se), violating
the financial responsibility law, and violating the vehicle registration law. Prior to trial,
Franklin filed a motion to suppress evidence from his search, seizure, and arrest on the
basis that the sobriety checkpoint where this evidence was obtained was unconstitutional.
After the trial court denied this motion to suppress, Franklin filed a motion to reconsider,
which was also denied. Franklin next filed a motion to dismiss the indictment, or in the
alternative, to exclude the evidence from his blood test, arguing that Code section 55-10-
413 is unconstitutional because it creates a fee system that violates the right to due
process and a fair trial. Although Franklin’s request to dismiss the indictment or exclude
the evidence was denied, the trial court granted his request for a jury instruction
regarding the fee in Code Section 55-10-413(f). Thereafter, during voir dire, Franklin
asserted that the State engaged in purposeful discrimination in violation of Batson v.
Kentucky, 476 U.S. 79 (1986), when it used its peremptory challenges to exclude two
African-American individuals from the jury pool. At the ensuing trial, the jury convicted
Franklin of DUI per se and violating the vehicle registration law but acquitted him of
DUI by impairment, and the State dismissed the charge for violating the financial
responsibility law. On appeal, Franklin argues that the trial court erred in: (1) denying
his motion to suppress because the checkpoint was unconstitutional; (2) overruling his
Batson challenge; and (3) denying his motion to dismiss the indictment, or in the
alternative, to exclude the evidence based on the unconstitutionality of Tennessee Code
Annotated section 55-10-413(f) (2017). Because the trial court erred in denying the
motion to suppress given the unconstitutionality of the checkpoint, we reverse the
judgments of the trial court, vacate Franklin’s convictions, and dismiss the charges.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;
                    Convictions Vacated; Charges Dismissed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and ROBERT L. HOLLOWAY, JJ., joined.

Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Robert A. Franklin.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Kate Lavery, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       Motion to Suppress. Franklin filed a motion to suppress, as well as two
supplements to this motion, generally arguing that evidence from his search, seizure, and
arrest should be suppressed because the sobriety checkpoint where this evidence was
obtained violated the Fourth Amendment of the United States Constitution and article I,
section 7 of the Tennessee Constitution.

       At the April 15, 2013 hearing on Franklin’s motion to suppress, District Captain
David McGill of the Tennessee Highway Patrol (THP) testified that he requested a
sobriety checkpoint, or roadblock, take place on June 15, 2012, from 11:00 p.m. to 12:30
a.m. at an old motel on Cherokee Boulevard in Chattanooga (hereinafter “checkpoint”).
Captain McGill stated that he completed a THP Checkpoint Request/Authorization form
(hereinafter “Request/Authorization form”) regarding his request and that this checkpoint
was approved by Lieutenant Colonel Wayne Springer, his superior officer. This
Request/Authorization form, which was admitted as an exhibit, stated that “[a]ll
personnel participating in Checkpoints will be responsible for following procedures
outlined in General Orders” and ordered that “[a]ll” vehicles at the checkpoint would be
“momentarily stopped and the operator asked to exhibit the necessary information.”

       Captain McGill acknowledged that although the normal procedure was to provide
advance notice of the checkpoint to the media, the media was never notified of this
checkpoint. The THP Checkpoint Site Selection/Removal Checklist form (hereinafter
“Site Selection/Removal Checklist”) for the Cherokee Boulevard site, which was entered
as an exhibit, had boxes that could be checked if certain factors had been considered for a
particular checkpoint location. For the checkpoint in issue, all of the boxes on the form
were checked, indicating that the following factors had been considered for that site: the
frequency of traffic violations or traffic crashes; historical statistical evidence and the
knowledge of alcohol related or other types of crashes where impairment was indicated
as a contributing factor; the location provided for the safety of motorists and officers and
provided adequate visibility for oncoming traffic; the location avoided undue
inconveniences to the public; the location gave motorists adequate prior warning that a
                                           -2-
checkpoint was ahead; the location provided sufficient space to display adequate advance
warning signs and sufficient lighting to ensure motorists’ and officers’ safety; the
location provided ample room for police and subject vehicles; the location provided a
safe area to move a vehicle from traffic in the event further inquiry of the driver was
necessary; the location was away from businesses, residential driveways, alleys, and
intersecting streets or highways that could be impacted by the operation; the location was
free from obvious hazards on the highway; and the deterrent effect created by the
operation of the checkpoint.

       Captain McGill noted that he and Lieutenant Phillips signed this Site
Selection/Removal Checklist.” The form itself shows that Lieutenant Phillips and
Captain McGill signed the form on December 31, 2010, approximately two-and-a-half
years prior to the time the checkpoint took place. Lieutenant Phillips signed under the
portion of the form stating “Inspected By.” The form also had boxes where the District
Captain could check “Approved” or “Denied,” and Captain McGill checked the box for
“Approved.”

       Captain McGill affirmed that he was not present at the checkpoint. He
acknowledged that he could not confirm whether all the factors marked on the Site
Selection/Removal Checklist had actually been considered prior to choosing the June 15,
2012 checkpoint location, only that these were the factors the Tennessee Highway Patrol
had said it considered when choosing this site.

       THP Lieutenant Christie Phillips testified that she and Captain McGill requested
the checkpoint and that the checkpoint had been approved by Lieutenant Colonel
Springer, their superior officer. Lieutenant Phillips said the checkpoint site had come
from a list of approved sites that had been prepared “years ago,” prior to the time that she
became a lieutenant. She said that this particular site was chosen because there had been
crashes on Highway 27, but because THP could not conduct a checkpoint on Highway
27, they had chosen Cherokee Boulevard as the location for the checkpoint because it ran
parallel to Highway 27. Lieutenant Phillips confirmed that an event known as the
Riverbend Festival had taken place on the same night as the checkpoint.

       Lieutenant Phillips confirmed that neither she nor Captain McGill worked at the
checkpoint and that the site supervisor had the discretion to cancel the checkpoint for bad
weather or insufficient personnel. She also said that if traffic became congested, the site
supervisor also had the discretion to wave traffic through in order to keep vehicles
moving for safety reasons. Lieutenant Phillips identified Exhibit 3, General Order 410-1
(“the Order”), which supplied the guidelines the THP used for sobriety checkpoints. She
stated that Section (E) of this Order required that the supervisor not participate in
stopping vehicles, that there be at least four uniformed personnel at the checkpoint, and
                                           -3-
that the supervisor determine the number of other personnel involved in the checkpoint.
She also said that Section (F) of this Order provided the standard operating procedure
requiring the use of traffic cones, marked patrol vehicles, good lighting, and vests and
flashlights by officers. In addition, Lieutenant Phillips noted section (G) stated that
sobriety checkpoints were to be conducted for a minimum of one hour and a maximum of
two hours. She confirmed that the site supervisor had the discretion to terminate a
checkpoint if the site was causing a hazardous condition.

        Lieutenant Phillips stated that she and Captain McGill signed the THP Checkpoint
Activity Report (“Activity Report”), which was completed after the conclusion of the
checkpoint. This Activity Report showed the date, time, and location of the sobriety
checkpoint, the personnel participating in the checkpoint, the fact that patrol units had
their emergency lights activated, that the site had been approved, that the media had been
notified, that traffic cones had been used, and that the checkpoint location had been
illuminated. The report specifically stated that THP Sergeant David Matthews, Trooper
Billy Collins, and Trooper Ronnie Swafford as well as six police officers, presumably
from the Red Bank Police Department (RPD), were present at the June 15, 2012 sobriety
checkpoint. Lieutenant Phillips confirmed that although the “media notified” box on the
Activity Report had been checked, the media had not been notified of the checkpoint.
She added that this was the first time she was aware of the media not being notified of an
impending checkpoint. The State stipulated that a media release had not been completed
for this checkpoint.

       A copy of the Activity Report, which was entered as an exhibit, specified that a
review of department guidelines had been conducted, that the site had been approved
prior to the checkpoint, that the site had been approved by Lieutenant Phillips, and that
the media had been notified by way of “radio” and “printable” materials. The Activity
Report also stated that it had been “submitted by” and “keyed by” Sergeant Steve
Bearden, an officer who was not present at the checkpoint.

        Lieutenant Phillips confirmed that 285 vehicles passed through the checkpoint on
June 15, 2012. He stated that one person was written a citation for “DUI,” eight
individuals were written citations for “DWI,” and several individuals were written
citations for “open container” and other minor violations during the checkpoint.
Lieutenant Phillips also said that one person was arrested for a felony and one person was
arrested for a misdemeanor at the checkpoint.

       Lieutenant Phillips acknowledged that there were only three THP officers at the
checkpoint even though Section III(E)(2)(a) of the Order required a minimum of four
uniformed officers. She said that because she was not present at the checkpoint, she
relied upon what the officers, who were present at the checkpoint, told her regarding the
                                          -4-
location of the traffic cones and vehicles. After acknowledging that the THP kept
statistics regarding vehicle wrecks in specific areas, Lieutenant Phillips identified a
document from the THP that contained statistics for traffic crashes on Cherokee
Boulevard in the area between Frazier Avenue, North Market Street, and West Bell
Avenue, the general area in which the checkpoint in this case was located. This
document, which was admitted as an exhibit, stated that during the period from 2003 to
2012, there were no alcohol-related crashes involving fatalities and only four alcohol-
related crashes with injuries at the location of the June 15, 2012 checkpoint. The record
shows that Lieutenant Phillips did not actively consider these statistics when the decision
to have a checkpoint at that location was made and that the site for the checkpoint came
from a preauthorized list of locations for checkpoints.

        THP Sergeant David Matthews testified that he was the site supervisor for the
checkpoint conducted on June 15, 2012, on Cherokee Boulevard. He confirmed that he
had nothing to do with the selection of the checkpoint location, the authorization of the
checkpoint, or the time of the checkpoint. Sergeant Matthews said he conducted a pre-
checkpoint briefing, where he told the officers that they should stop every vehicle
momentarily and that if they did not observe any signs of impairment or another
violation, they should allow the vehicle to pass through the checkpoint. Sergeant
Matthews added that he “[n]ormally” completes the Activity Report. When asked how
the media notification box was checked on the Activity Report when no media
notification actually occurred for this checkpoint, Sergeant Matthews said that as site
supervisor, he had “no way of really knowing” whether the media had been notified. He
said he was “under the assumption” that the media had been notified because the
checkpoint had been approved by the chain of command and that “the chain of command
in the higher ups [we]re the one that’s [sic] supposed to see to that.”

        Sergeant Matthews said signs were placed to warn drivers of the checkpoint, and
street lights and a four-lane road provided sufficient light and space to ensure the safety
of motorists and officers. He also said there were parking lots located close to the site,
where vehicles could be moved if further investigation was needed. Sergeant Matthews
asserted that although THP policy required that the checkpoint last a minimum of one
hour and a maximum of two hours, he had the authority as site supervisor to terminate the
checkpoint for bad weather, or an emergency, or if arrests reduced the number of officers
present at the checkpoint. He said that while a supervisor and three officers were
required to be present, these officers did not have to be state troopers. Sergeant
Matthews confirmed that he, Trooper Collins, and Trooper Swafford were the only state
troopers at the checkpoint.

      Sergeant Matthews said that when Trooper Collins and Trooper Swafford left the
checkpoint to transport Franklin following his arrest, he was the only THP officer at the
                                           -5-
site, so he decided to terminate the checkpoint. Although Sergeant Matthews
acknowledged that he could have continued the checkpoint with just the officers who
were present from the Red Bank Police Department, he claimed this would have kept
these Red Bank officers from responding to their priority calls.

       Sergeant Matthews also stated that he terminated the checkpoint for safety reasons
because of heavy traffic. He explained, “After about an hour[,] Riverbend [Festival] had
started letting out pretty heavily[,]” and they were “getting an extreme amount of traffic
coming through the tunnel” and could not allow the vehicles to back up into the tunnel
for safety reasons. Sergeant Matthews said that at that point, the officers were motioning
so much traffic through that they were unable to check anyone, so he terminated the
checkpoint.

       Sergeant Matthews was unable to recall where he was when Franklin came
through the checkpoint and could not remember whether traffic became congested before
or after Franklin passed through the checkpoint. He acknowledged that he did not
personally notify the district attorney of this checkpoint, as was required by the Section D
of the Order. In addition, although Section D required that all local law enforcement
agencies within the jurisdiction be notified of the checkpoint, Sergeant Matthews was
unsure whether the Chattanooga Police Department or the Hamilton County Sheriff’s
Office had been notified in accordance with the Order. Moreover, although the Order
required the district captain to prepare a press release to the local media stating that the
Tennessee Highway Patrol would be conducting checkpoints, he did not personally
ensure that this was done. Sergeant Matthews admitted that he did not ensure that all the
requirements listed on the Site Selection/Removal Checklist were completed and
assumed that Lieutenant Phillips and Captain McGill, who signed that form, had made
sure that those requirements had been completed.

        Sergeant Matthews acknowledged that all checkpoints had to be recorded. He
stated that although he had not viewed these recordings, a video recording had been made
of the vehicles passing through the checkpoint and a second video recording had been
made of Franklin’s field sobriety tests. He stated, “[I]f you’re talking to the subject and
anything you’re doing with the subject[,] then you’re supposed to have [the microphone]
on. But if they’re discussing things between themselves about it[,] then they can [turn the
microphone off].” While Sergeant Matthews said he would not recommend that THP
officers turn off their microphones while discussing a subject’s performance on field
sobriety tests, he was unsure whether doing so was actually a violation of THP policy.

      THP Trooper William Collins testified that he stopped Franklin at the checkpoint.
At the time of the stop, he noted that Franklin had “an odor of intoxicant” emanating
from his person and saw that Franklin’s license tags had expired. Thereafter, Trooper
                                           -6-
Collins and his trainee, Trooper Swafford, had Franklin perform field sobriety tests, and
based on Franklin’s performance on these tests, Trooper Collins believed Franklin was
impaired. When Trooper Collins was asked whether he thought it was necessary that his
dialogue with trainee Trooper Swafford be included in the video recording from the
checkpoint, he replied, “Yes. I mean, you know, I don’t want it to look like we’re hiding
anything.” Trooper Collins said that if the video recording did not include his
conversation with Trooper Swafford, this was “[b]y accident.” He stated that Franklin’s
blood alcohol content was later found to be 0.12%.

       Trooper Collins asserted that there was a tunnel near the checkpoint, and there
were signs instructing drivers about the checkpoint on the north end of the tunnel. Once
a vehicle entered the tunnel, there was no way to turn around to avoid the checkpoint, and
the only way to avoid the checkpoint was to exit the tunnel and then turn down Ashmore
Avenue. Trooper Collins said that as traffic began backing up in the tunnel, the site
supervisor told them to wave vehicles through the checkpoint. He did not recall whether
Franklin was stopped at a time when all the vehicles were being stopped or when traffic
was being waved through the checkpoint. He confirmed that when traffic began backing
up into the tunnel where it could cause an accident, then the site supervisor instructed
them to wave traffic through the checkpoint. The recordings of Franklin’s field sobriety
tests and arrest as well as the two recordings of the checkpoint were introduced as
exhibits during Trooper Collins’ testimony.

       THP Trooper Ronnie Swafford testified that he noticed that Franklin had an
expired tag as he was passing through the sobriety checkpoint. He approached Franklin’s
window, told him his tag had expired, and asked him if he had been drinking that night.
When Franklin responded that he had consumed a couple of drinks, Trooper Swafford
noticed that Franklin had “a little slurred speech” and “was fumbling around in the
vehicle looking for his insurance and for his registration.” Franklin was also looking for
his driver’s license in his billfold, even though his license was hanging from a lanyard
around his neck. In addition to these observations, Trooper Swafford said he smelled
alcohol coming from Franklin’s person. At that point, he asked Franklin to pull over to
the side of the road, where he had him perform field sobriety tests. When Franklin
performed poorly on these tests and had indicators showing his blood alcohol
concentration (BAC) was above the legal limit, he was arrested. Because Trooper
Swafford and Trooper Collins left the scene after they arrested Franklin, Sergeant
Matthews was the only trooper who remained at the checkpoint. Franklin’s impairment
was later verified when TBI testing of Franklin’s blood sample showed that his BAC was
0.12%.

      Trooper Swafford acknowledged that the checkpoint was on one side of the tunnel
and that all of the signs warning drivers were on the same side of the tunnel as the
                                          -7-
checkpoint and the officers. He said that he and the other officers waved cars through the
checkpoint when traffic became congested in the tunnel and that he did not recall any
backup of vehicles when Franklin came through the checkpoint. Trooper Swafford
acknowledged that he and Trooper Collins turned their microphones off when they
conferred after Franklin completed his field sobriety tests.

        Following Trooper Swafford’s testimony, a letter from THP Administrative
Sergeant James D. Van Dyke was entered into evidence. This letter, which was in
response to defense counsel’s request for information about the June 15, 2012
checkpoint, stated that “[r]ecords pertaining to media notification [of the June 15, 2012
sobriety checkpoint in Hamilton County], required by Department of Safety General
Order 410-1, could not be located,” which led Sergeant Van Dyke to conclude that “the
required media notification of this sobriety checkpoint was not accomplished.” This
letter explained that the only records related to this checkpoint were “the request and
approval to hold this checkpoint and the checkpoint activity sheet.”

       Jeffrey Street testified that on June 15, 2012, he left his work and drove downtown
to pick up his friend Melissa Powell, who had attended the Riverbend Festival. Street
drove Powell to her car on the North Shore. Thereafter, Street and Powell, who were in
separate cars, drove down Cherokee Boulevard to Dayton Boulevard, where they drove
through the tunnel prior to encountering the checkpoint. Street said that there were not a
large number of vehicles stopped as he went through the tunnel and that he did not recall
a lot of traffic as he approached the checkpoint. He added that he was allowed to go
through the checkpoint without being stopped.

       Melissa Powell testified that when she drove through the tunnel on Cherokee
Boulevard, she saw blue lights flashing. She stated that she never saw any indication that
there was a checkpoint before she exited the tunnel. Powell said she stopped prior to
reaching the checkpoint but was allowed to pass through the checkpoint without being
questioned by any officers and without having to roll down her window. She said she
drove through the checkpoint at 11:45 p.m., and there did not appear to be a lot of traffic
backed up in the tunnel at that time, although she acknowledged that there was traffic on
the road.

      On May 10, 2013, the trial court entered an order denying the motion to suppress,
which stated in pertinent part:

             The Court understands the [S]tate to contend that, because [State v.
      Downey, 945 S.W.2d 102 (Tenn. 1997),] recognizes a compelling state
      interest in deterring motorists from driving under the influence of an
      intoxicant and sobriety checkpoints on public roads advance that interest, it
                                           -8-
need never prove that any particular checkpoint advances that interest. The
Court agrees that Downey recognizes, for all cases, a compelling state
interest in deterring motorists from driving under the influence of an
intoxicant. It respectfully disagrees, however, that, by also recognizing the
value of sobriety checkpoints, Downey entirely establishes the value of any
particular checkpoint. The [Elliott] Aloyo court does not treat Downey as
doing so. It remarks on the number of arrests at the checkpoint and the
possible deterrent effect of the checkpoint because of prior publicity before
finding that “this checkpoint has met the second prong of the Downey test,”
[No. M2008-02359-CCA-R3-CD, 2010 WL 596435, at *4 (Tenn. Crim.
App. Feb. 19, 2010)].

       In this case, unlike Aloyo, there was no advance publicity and
therefore no possible advance deterrent value. In addition, the arrest rate in
this case, one arrest in one hour, was twenty-five percent less than in
Aloyo, three arrests in two-and-one-quarter hours, or one arrest in three-
quarters of an hour. Furthermore, in this case, unlike Aloyo, apparently,
there was no knowledge or review of recent statistics from the site and the
only reason for the selection of the site was a years-old approval.

        It seems to the Court, however, that what gives the checkpoint in this
case deterrent value, future deterrent value, is its proximity, temporal and
spatial, to a summer festival at which, presumably, some festival goers
consume intoxicants. Nor does the Court regard the termination of the
checkpoint after one arrest as nullifying this value. Although the initial
number of uniformed officers in this case and the number of officers in
Aloyo, nine, was the same, one of the officers in this case was in training.
In addition, the traffic in this case, more than two hundred eighty-five
vehicles (two hundred eighty-five vehicles checked; an unknown number
greater than two not checked) in one hour was more than twenty percent
heavier than in Aloyo, five hundred twelve vehicles (five hundred eleven
vehicles checked and one vehicle not checked) in two and one-quarter
hours.

        The Court understands the defendant to contend there were several
flaws in the execution of the checkpoint and, as a consequence, even if the
checkpoint satisfies the public-interest and efficacy parts of the Downey
test, it does not meet the interference-with-individual-liberties part of the
Downey test. The Court respectfully disagrees.



                                    -9-
       First, the officers in the field did not make the decision to conduct
the checkpoint. A superior did so. Second, in conducting the checkpoint,
the officers in the field were implementing “neutral standards previously
fixed by an administrative decision or regulation[,”] the general order,
Exhibit 3.

      Third, the lack of one or more avoidance routes before the
checkpoint does not violate the general order. The general order contains
no requirement that one or more avoidance routes be available to motorists
who wish to avoid the checkpoint. Section V(H) of the order provides as
follows:

               The placement of personnel at locations to observe for
       and procedures to follow when detection occurs of a motorist
       turning around to avoid the checkpoint will also be addressed
       [in the pre-checkpoint briefing].

             1. A motorist who chooses to avoid a checkpoint
       should be allowed to proceed unless traffic violations are
       observed or probable cause exists to take other action.

        Fourth, that officers did not stop all vehicles does not necessarily
violate the general order. The checkpoint authorization, Exhibit 1, requires
officers to stop “all” vehicles and ask their operators to exhibit the
necessary information. The checkpoint-activity report, Exhibit 4, also
states that the predetermined sequence or pattern for stopping vehicles was
“every vehicle[.”] Subsection III(G)(5)(c) of the general order, however,
provides in part:

      If traffic backs up creating a hazardous condition, all vehicles will be
allowed to pass until the back-up is cleared.

        In this case, Mr. Street testified that officers did not stop him, though
traffic in the tunnel was unremarkable, and Ms. Powell, who was following
Mr. Street, testified that she stopped at the checkpoint but did not open her
window. Mr. Street and Ms. Powell, however, may not have noticed
congestion in the tunnel because they arrived at the back of a group of
vehicles cleared through the checkpoint and were included in the group.
The site supervisor was in a better position than any motorist to assess the
necessity to clear traffic.

                                     - 10 -
       Nor does the average volume of traffic belie the site supervisor’s
testimony in this respect. In Aloyo, nine officers were able to stop an
average of about five cars a minute without having to clear congestion.
Traffic, however, ebbs and flows. It is not reasonable to presume a
constant volume. In addition, the rate of detentions in this case, ten in one
hour, was more than twice than in Aloyo, nine in two-and-one-quarter
hours. Absent a video recording of the checkpoint approaches that belies
the site supervisor’s account of the necessity to clear traffic through the
checkpoint, the Court accredits his testimony that there was such a
necessity.

       Fifth, in finding the site supervisor in a better position than motorists
to assess congestion at the checkpoint, the Court recognizes the difficulty
for defendants in challenging the execution of a sobriety checkpoint
without a video recording. The general order, however, does not require a
video recording. Nor does any Tennessee case of which the Court is aware.

       Sixth, the early termination of the checkpoint after one hour for lack
of personnel does not necessarily violate the general order. In criticizing
the decision to terminate the checkpoint on the ground that his arrest
occupied only two troopers, leaving the site supervisor and six [Red Bank
Police Department] officers to man the checkpoint, the defendant does not
consider that the number of personnel above the minimum necessary to
man a checkpoint depends in part on the volume of traffic and the
coincidence, number, and duration of other detentions.

       Seventh, although the record does not contain proof that the
checkpoint was bi-directional, as section III(G)(5)(a) of the general order
requires, the Court does not attribute the omission to a violation of the
general order in this respect. The defendant did not allege any violation of
the general order in this respect.

       The Court does find one flaw in the execution of the checkpoint: the
lack of advance publicity. The site supervisor assumed and reported media
notification, but, as a letter to counsel, Exhibit 8 reflects, officials were
unable to locate any record of media notification. As the [S]tate contends,
however, the constitutionality of a checkpoint does not depend on flawless
execution and no one circumstance is necessarily outcome determinative.
Considering that the lack of media notification did not deprive the
checkpoint of all deterrent value, only advance deterrent value, the Court
does not regard this omission as outcome-determinative.
                                     - 11 -
        Motion to Reconsider. On June 30, 2013, Franklin filed a motion to reconsider
the denial of the motion to suppress, arguing that testimony from the April 15, 2013
hearing established that the sobriety checkpoint failed to comply with the Order because
(1) there was no warning of the checkpoint until after the cars had entered the area of the
checkpoint, (2) there was no media announcement given prior to the checkpoint and (3)
the State and its agents failed to preserve audio recordings related to his field sobriety
tests that were critical to establishing that the checkpoint was conducted in conformity
with the Order and constitutional mandates.

        At the September 30, 2013 Hearing on Franklin’s motion to reconsider, RPD
Officer Mark Taylor testified that he assisted with the checkpoint. He stated that drivers
exiting the tunnel could turn onto Ashmore Avenue before they reached the checkpoint
and that many drivers did avoid the checkpoint by turning onto this road. Officer Taylor
stated that he was at the entrance to the Cherokee Motel, and there were officers closer to
the tunnel than he was. He said that no law enforcement officers should have been
posted between the tunnel and Ashmore Avenue.

       Franklin, the Defendant-Appellant, testified that he attended the Riverbend
Festival prior to encountering the checkpoint on June 15, 2012. He said he did not see
any signs indicating that there was a checkpoint as he entered the tunnel from the south.
However, “[a]bout one or two car lengths” after exiting the tunnel, Franklin observed a
“sea of blue lights” and saw officers in the road. Franklin stated that the officers were
positioned “right at Ashmore [Avenue] . . . in the intersection essentially” and that he
never saw any signs stating that he could avoid the checkpoint by turning onto Ashmore
Avenue. He said he did not attempt to avoid the checkpoint, and an officer waved him
out of the line of cars “right there at Ashmore.” He recalled being stopped at Ashmore
Avenue because he pulled his car over in front of the porte cochere in front of a pet
grooming business, which is at the intersection of Ashmore Avenue and Dayton
Boulevard. Franklin asserted that he never had an opportunity to avoid the checkpoint
and that he never observed any vehicles turning onto Ashmore Avenue that night.

       On October 14, 2013, the trial court entered an order denying the motion to
reconsider, stating the following:

               With respect to the issue of entrapment, to the extent that the
       defendant now suggests that the constitutionality of the checkpoint stop
       depends on its consensual nature and therefore on the existence of one or
       more escape routes, which, in this case, is now perhaps more doubtful that
       it was, the Court respectfully disagrees. State v. Downey, 945 S.W.2d 102,
       104 (Tenn. 1997) and State v. Varner, 160 S.W.3d 535, 547 (Tenn. Crim.
       App. 2004), classify checkpoint stops as suspicionless seizures. Cf. State v.
                                          - 12 -
Moats, 403 S.W.3d 170, 186 n.7 (Tenn. 2013) (noting that, “since the
United States Supreme Court decided [Cady v. Dombrowski, 413 U.S. 433,
93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973)], the community caretaking
function has been extended to include ‘sobriety checkpoints, border
searches, drug testing, inventory searches, and searches in public schools’”)
(citations omitted).

       Furthermore, neither Downey nor Varner recognizes a right of
avoidance or treats the existence of one or more escape routes as relevant
on the issue of the constitutionality of a checkpoint. Presumably, consent
would render a Downey analysis redundant.

        As for the issue of unpreserved evidence, the defendant does not
dispute that the only part of the recording that is inaudible is one or more
pre-arrest consultations between trainer and trainee troopers. The Court
respectfully disagrees with the defendant that the failure to preserve this
evidence entitles him to dismissal of the indictment or a jury instruction on
the failure to preserve evidence.

       ....

       The Court finds that the troopers did not have a duty to preserve
their consultations. The defendant does not cite and the Court is not aware
of any discovery rule that requires the disclosure of such consultations,
despite the potential impeachment value of every prior statement. See
Tenn. R. Crim. P. 16(a)(1)(G), (a)(2) (conditioning the necessity to disclose
the results or reports of examinations, tests, or experiments in part on the
existence of the results or reports and generally excepting from disclosure
internal state documents and witness statements, respectively). Cf. Tenn.
R. Crim. P. 26.2 (requiring production of certain witness statements).

       Furthermore, to the extent that the troopers’ consultation is relevant,
its outcome, the defendant’s arrest, indicates that, on the whole, their
observations and conclusions were not favorable to him. In [State v.
Merriman, 410 S.W.3d 779, 795 (Tenn. 2013),] “[t]he lost evidence was
significant because it recorded Ms. Merriman’s conduct, which provided
the factual basis for her charges.” . . . A consultation between trainer and
trainee troopers, however, does not have the same significance to the
defense as the conduct underlying a charge.



                                    - 13 -
               The Court observes that, even if the troopers did have a duty to
       preserve their consultations and their failure to do so was a matter of policy,
       as Sgt. Matthews’ testimony at the hearing on the original motion to
       suppress seems to indicate, the defendant’s conduct, including his
       performance on field sobriety tests, was reported in an affidavit of
       complaint at least and was recorded. There is therefore equally or more
       reliable substitute evidence on the issues of impeachment and guilt.

               In addition, the significance of the troopers’ consultation(s) remains
       low. Although, at the second hearing, Off. Taylor did not testify about the
       reasons for the defendant’s arrest for driving under the influence, at the first
       hearing, before the sufficiency of the evidence against the defendant was in
       issue, Sgt. Matthews testified that a video recording was made of the
       checkpoint and the defendant’s field sobriety tests and [Troopers] Collins
       and Swafford testified that the defendant smelled of alcohol, admitted that
       he had been drinking, fumbled for his registration, performed poorly on
       field sobriety tests, and had a blood-alcohol concentration of twelve-
       hundredths of one percent. The affidavit of complaint, too, recites
       sufficient cause for the defendant’s arrest for driving under the influence:
       his admission to consumption of two or three drinks, the strong odor of
       intoxicant on his person, and his performance on field sobriety tests,
       including swaying, having watery eyes, on the walk-and turn, starting too
       soon, being unable to keep his balance, stepping from the line one time, and
       not placing heel to toe several times, and, on the one-leg stand, placing a
       foot on the ground inappropriately and raising his hands.

        Motion to Dismiss, or in the Alternative, Motion to Exclude. On January 31,
2014, Franklin filed a motion requesting the trial court to dismiss his case, or
alternatively, exclude all evidence related to blood or breath testing. In this motion,
Franklin argued that Code section 55-10-413 is unconstitutional because it creates a fee
system that violates his right to due process and a fair trial. Franklin’s motion was later
consolidated for the purpose of argument with the motions of over twenty similarly-
situated defendants and heard before the three Hamilton County Criminal Court Judges,
sitting en banc.

       We note that the companion case on this issue is State v. Rosemary L. Decosimo,
No. E2017-00696-CCA-R3-CD, 2018 WL 733218 (Tenn. Crim. App. Feb. 6, 2018),
perm. app. granted (Tenn. Mar. 21, 2018). On March 21, 2018, the Tennessee Supreme
Court granted the State’s application for permission to appeal our decision in Rosemary
L. Decosimo on the issue of whether the fee system established in Code section 55-10-
413(f) violates due process. State v. Rosemary L. Decosimo, No. E2017-00696-SC-R11-
                                            - 14 -
CD (Tenn. Mar. 21, 2018) (order granting the State’s application for permission to appeal
pursuant to Tennessee Rule of Appellate Procedure 11(a)). Because Franklin’s motion
on the unconstitutionality of Code section 55-10-413 was consolidated for the purpose of
argument with Decosimo’s motion as well as the motions other similarly-situated
defendants, the proof offered at Franklin’s motion hearing is substantially the same as
that offered at Decosimo’s motion hearing, and a detailed summary of this proof can be
found at Rosemary L. Decosimo, 2018 WL 733218 at *1-6.

       Denial of Motion to Dismiss, or in the Alternative, Motion to Suppress. On
December 11, 2014, the three Hamilton County Criminal Court Judges, sitting en banc,
entered an order denying the motion but granting the defense’s request for a jury
instruction. In this order, the trial court made the following findings of fact and
conclusions of law:

      [W]hat the Court must determine is whether the statute in issue creates such
      pressure on TBI forensic scientists and expert witnesses that admission of
      their evidence deprives defendants of due process or a fair trial.

              The statutory financial interest is not negligible. It is true that, in
      any one case, the interest is small. Were there no statute, i.e., were there no
      reason to consider more than one case at a time, thorough cross-
      examination and jury instruction would suffice to preserve a defendant’s
      rights to due process and a fair trial.

             The statute, however, not only creates a contingent-fee system, like
      the one in Brown [v. Edwards, 721 F.2d 1442 (5th Cir. 1984),]; it creates a
      contingent-free-dependent system. In the aggregate of cases, the financial
      interest is very large. The statutory fees fund laboratory positions,
      equipment, professional development, and more.

             Arguably, the statutory, contingent-fee dependent system encourages
      both personal and institutional bias in scientific work much of the value of
      which even the state recognizes depends on the lack of influence on the
      scientist. Apparently, too, such a system is unnecessary, the state not
      disputing the existence of acceptable alternatives. Furthermore, that the
      parties do not cite and the Court does not find any precedent for giving
      forensic scientists and laboratories a statutory financial interest in DUI
      convictions suggests that other states, who, presumably, share this state’s
      legitimate goal of discouraging DUI in part by making offenders
      responsible for laboratory costs, do not regard such an interest as fair.

                                          - 15 -
              Despite the magnitude of the aggregate financial interest, however,
       the Court concludes that it does not necessitate the exclusion of the results
       of breath or blood tests. Presumably, it is impossible to calibrate breath-test
       machines to overstate any positive result. Thus, no financial interest on the
       calibrator’s part can affect the results of breath tests.

              As for blood tests, presumably, despite the evidence of
       acknowledged and unacknowledged errors in blood tests, it is impossible to
       calibrate blood-test machines to overstate any positive result. The sole
       acknowledged error in the record was a transposition error; perhaps the
       unacknowledged errors in the record lie within the margin of error.
       Presumably, too, despite the statement in the reports in the record that
       “[t]he above represents the interpretations and opinions of the analyst[,”]
       blood tests are subject to minimal, if any, interpretation or opinion.

              Although deliberate falsifications attributable to financial interest
       remain a possibility, presumably, what protects defendants from accidental
       transposition errors also protects them from deliberate falsifications: the
       availability of independent analysis of blood, at state expense in appropriate
       cases, and the availability of underlying “technical notes and data” that,
       according to a statement in the reports in the record, the laboratory
       maintains in its case records. Thus, the financial interest in obtaining DUI
       convictions is offset by financial and other interests in continuing to have
       employment and avoiding criminal liability, making the possibility of a
       deliberate falsification attributable to financial interest remote without
       necessarily changing defendants’ calculations regarding the advisability of
       independent analysis.

        Denial of Application for Interlocutory Appeal. Following entry of the
December 11, 2014 order, Franklin and the other defendants filed a consolidated motion
for an interlocutory appeal, which the trial court granted. Thereafter, this court denied
the defendants’ application for an interlocutory appeal, and the Tennessee Supreme Court
denied the defendants’ application to appeal from this court’s order of denial. The State
also filed a motion for an interlocutory appeal regarding the trial court’s decision to grant
a jury instruction regarding the $250 BADT fee, but this motion was denied by the trial
court on the grounds that the motion was untimely, that another hearing on the State’s
motion would subject the defendants to additional and unnecessary burden and expense,
and that the State could file an extraordinary appeal pursuant to Rule 10 of the Tennessee
Rules of Appellate Procedure. Following the denial of the interlocutory appeal, the trial
judge assigned to Franklin’s case recused himself from the case, and the case was
reassigned to another Hamilton County Criminal Court judge.
                                           - 16 -
        Trial. The evidence at Franklin’s trial substantially conformed to the evidence
presented that the suppression hearing. During trial, TBI Special Agent Kelly Hopkins
testified that she tested Franklin’s blood sample and determined that it had a BAC of
0.12%. She noted that Franklin declined to request an independent test of his sample.
Agent Hopkins explained that defendants convicted of DUI were assessed a $250 fee that
helped defray the costs of testing blood samples. She said that she did not personally
benefit from this $250 fee, that the money from this fee went into the TBI general fund,
and that she was a salaried employee who did not receive more or less money based on
the results of the tests she performed. However, Agent Hopkins acknowledged that she
had not read the statute creating this $250 fee and did not know how the money from this
$250 fee was used because information about these fees was not shared with TBI
employees. Agent Hopkins said she had tested “thousands” of blood samples and had
testified on behalf of both the prosecution and the defense. She added that her
employment with the TBI would be terminated if she falsified any test result. Hopkins
said the TBI’s crime labs in Memphis, Nashville, and Knoxville were accredited
November 2014 by ASCLD Lab International and that prior to that date, the labs were
ASCLD Lab Accredited. She said these different accreditations reflected different
standards related to competency of testing and calibration for laboratories.

       Franklin also testified, asserting that he consumed three drinks over the entire
night of June 15, 2012.

       Following the presentation of proof, the defense requested the following special
instruction regarding the TBI’s conflict of interest regarding the $250 fee for blood or
breath tests:

              I charge you that in considering the credibility of the Tennessee
       Bureau of Investigation (TBI) expert witness, Kelly Hopkins, you may
       consider whether her testimony was influenced in any manner by the fact
       that her employer (TBI) receives two hundred fifty to three hundred fifty
       dollars ($250.00-$350.00) for each Driving Under the Influence conviction
       under T.C.A. § 55-10-401 where she analyzes a sample of the defendant’s
       blood.

After the trial court provided its own jury instruction on this issue, which follows, the
defense objected to it because it failed to identify Agent Kelly Hopkins. The court
overruled this objection and provided the following instruction on this issue to the jury at
trial:

              Credibility of witnesses. It is your job to decide what the facts of
       this case are. You must decide which witnesses you believe and how
                                           - 17 -
       important you think their testimony is. You do not have to accept or reject
       everything a witness said. You are free to believe all, none, or part of any
       person’s testimony.

              In deciding which testimony you believe, you should rely on your
       own common sense and everyday experience. There is no fixed set of rules
       for judging whether you believe a witness, but it may help you to think
       about these questions.

              ....

              Nine, does the witness or the witness’s employer have a financial
       interest in the defendant’s conviction. State law provides that upon
       conviction for driving under the influence, a motorist who submitted to a
       blood alcohol test must pay, in addition to all other fines, fees, costs and
       punishments now prescribed by law, a fee of $250, which goes to the
       Tennessee Bureau of Investigation to fund forensic scientist positions, to
       employ[] forensic scientists to fill the positions, to purchase equipment and
       supplies, pay for education, training and scientific development of
       employees, or for any other purpose so as to allow the Bureau to operate in
       a more efficient and expeditious manner, and, to the extent that additional
       funds are available, employ[] personnel, purchase equipment and supplies,
       pay for the education, training and scientific development of employees, or
       any other purpose so as to allow the bureau to operate in a more eff[i]cient
       and expeditious manner.

                                       ANALYSIS

       I. Denial of Motion to Suppress. Franklin argues that the trial court erred in
denying his motion to suppress on the ground that the checkpoint was unconstitutional.
Specifically, he claims that the checkpoint violated the Fourth Amendment to the United
States Constitution and article I, section 7 of the Tennessee Constitution because it failed
to comply with the Order and because it violated the standards for checkpoints
established in Tennessee case law. The State counters that the checkpoint constituted a
reasonable seizure and that the trial court properly denied the motion to suppress.

       A trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise. State v. Odom, 28 S.W.2d 18, 23 (Tenn. 1996). The
prevailing party in the trial court “is entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” Id. Moreover, “[q]uestions of
                                           - 18 -
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.” Id.
Despite the deference given to trial court’s findings of fact, this court reviews the trial
court’s application of the law to the facts de novo with no presumption of correctness.
State v. Montgomery, 462 S.W.3d 482, 486 (Tenn. 2015) (citing State v. Walton, 41
S.W.3d 75, 81 (Tenn. 2001)). When evaluating the correctness of a trial court’s ruling on
a motion to suppress, this court may consider not only the proof offered at the
suppression hearing but also the evidence presented at trial. State v. Bishop, 431 S.W.3d
22, 34-35 (Tenn. 2014).

       Both the Fourth Amendment of the United States Constitution and article I,
section 7 of the Tennessee Constitution protect against unreasonable searches and
seizures. U.S. Const. amend. IV (“The right of the people to be secure in their persons,
houses, papers, and effects, against 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 . . . .”). The
Tennessee Supreme Court has concluded that article I, section 7 of the Tennessee
Constitution is “identical in intent and purpose” with the Fourth Amendment. State v.
Hicks, 55 S.W.3d 515, 521 (Tenn. 2001) (citing State v. Binette, 33 S.W.3d 215, 218
(Tenn. 2000); State v. Vineyard, 958 S.W.2d 730, 733 (Tenn. 1997)).

       The essence of this protection against unreasonable searches and seizures “is to
‘safeguard the privacy and security of individuals against arbitrary invasions of
government officials.’” Downey, 945 S.W.2d at 106 (quoting Camara v. Municipal
Court, 387 U.S. 523, 528 (1967)). Under the United States Constitution and the
Tennessee Constitution, “‘a warrantless search or seizure is presumed unreasonable, and
evidence discovered as a result thereof is subject to suppression unless the State
demonstrates that the search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.’” State v. Hayes, 188 S.W.3d 505, 511
(Tenn. 2006) (quoting State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

       We recognize that the “the temporary detention of individuals during the stop of a
vehicle by police, even if only for a brief period and for a limited purpose, constitutes a
‘seizure’ which implicates the protection of both the state and federal constitutional
provisions.” Vineyard, 958 S.W.2d at 734; see Yeargan, 958 S.W.2d at 631. While
officers must generally possess probable cause or reasonable suspicion that unlawful
conduct has occurred in order to stop a motorist, “[a] roadblock seizure . . . is a departure
from these fundamental constitutional principles” because “[i]t permits officers to stop
and question persons whose conduct is ordinary, innocent, and free from suspicion.”
Downey, 945 S.W.2d at 104. Consequently, when determining the reasonableness of a

                                             - 19 -
seizure at a checkpoint, “we must balance the public interest served by the seizure with
the severity of the interference with individual liberty.” Id.

        In Downey, the Tennessee Supreme Court held that a sobriety checkpoint that is
“established and operated in accordance with predetermined guidelines and supervisory
authority that minimize the risk of arbitrary intrusions on individuals and limit the
discretion of law enforcement officers at the scene is valid under the Tennessee
Constitution.” Id. at 112. The court adopted a three-part balancing test, which specified
that the reasonableness of a sobriety checkpoint depends on the balancing of “‘(1) the
gravity of the public concerns served by the seizure, (2) the degree to which the seizure
advances the public interest, and (3) the severity of the interference with individual
liberty.’” Id. at 107, 110 (quoting Michigan v. Sitz, 496 U.S. 444, 457 (1979)). The
State has the burden of establishing the reasonableness of a checkpoint. Hicks, 55
S.W.3d at 535; Varner, 160 S.W.3d at 540. The Downey court held that such seizures are
constitutionally permissible so long as “an individual’s reasonable expectation of privacy
is not subject to arbitrary invasions solely at the unfettered discretion of officers in the
field, and the seizure is carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers.” Downey, 945 S.W.2d at 110.

       A. Gravity of Public Concerns Served by Checkpoint. While Franklin
concedes that this first factor can be generally satisfied in the case of sobriety
checkpoints, he claims that the State’s interest in detecting and deterring drunk drivers
had diminished for this particular checkpoint site. Cf. State v. Kenneth B. Nevels, No.
M2007-00902-CCA-R3-CD, 2008 WL 4071877, at *4-5 (Tenn. Crim. App. Sept. 3,
2008) (recognizing the defendant’s argument that the State had to show that intoxicated
drivers remained a problem of “grave public interest” in the county where the checkpoint
took place but concluding that the defendant failed to present any evidence that the
State’s compelling interest in detecting and deterring drunk drivers had diminished or that
the county at issue was immune to the problem of intoxicated drivers). Franklin asserts
that the “lack of statistical support” showing that a checkpoint at this location would
address problems regarding drunk driving prevents the State from establishing that
intoxicated drivers remained a problem of grave public interest in this area.

       Referencing the Order, Section III, which requires that a site location for the
checkpoint be chosen “based on historical statistical evidence and the knowledge of
alcohol related to other types of crashes where impairment was indicated as a
contributing factor,” Franklin contends that if a checkpoint is to address the public’s
concern, then the statistical evidence must show a history of drunk driving in the area.
He notes that in this case, the statistical evidence of crashes in the area of the checkpoint
showed that there had been zero fatal accidents related to alcohol from 2003 to 2012 and
only four alcohol-related accidents resulting in injuries during that same time frame.
                                           - 20 -
Franklin also notes Lieutenant Phillips’ testimony that the site for the checkpoint was
chosen because crashes had occurred on a parallel highway and not Cherokee Boulevard
itself. For these reasons, Franklin contends that the statistical evidence for this
checkpoint and law enforcement’s concern about the safety on a parallel highway do not
support a finding that this checkpoint served the State’s compelling interest in detecting
and deterring impaired drivers.

        In response to these arguments, the State insists that individuals who drink and
drive constitute a grave public concern and that this concern was served by the
checkpoint in this case. Citing Downey, 945 S.W.2d at 110, it reiterates that the State has
a compelling interest in decreasing drunk driving and that checkpoints are an effective
tool for detecting impaired drivers. Moreover, as to Franklin’s assertion that the
statistical evidences does not support Cherokee Boulevard as an acceptable checkpoint
site, the State contends that Franklin has failed to provide any authority supporting his
claim and that nothing in the Order requires the THP to only consider crashes involving
death or injury in determining the site for a checkpoint.

       We note that the first Downey factor is satisfied when the State asserts that it has a
“compelling interest in detecting and deterring motorists who drive while under the
influence of alcohol.” Id. at 110. The Downey court specifically recognized that “more
deaths and injuries have resulted from such motor vehicle accidents on our nation’s
highways than from all the wars this country has fought.” Id. (citing Sitz, 496 U.S. at 456
(Blackmun, J., concurring)).

        At the suppression hearing, the State generally argued that it had a compelling
interest in “detecting and deterring DUI drivers.” However, given the State’s concession
at that hearing that no advance public notice of the checkpoint in this case was given, any
attempt by the State to rely on the deterrence of impaired drivers as a justification for the
checkpoint is substantially diminished. Because the record in this case shows that the
State had a compelling interest in detecting impaired drivers, we conclude that this first
Downey factor has been established, and we will consider Franklin’s arguments
regarding the absence of statistical evidence of drunk driving at the checkpoint site under
the second Downey factor, which considers the degree to which this particular checkpoint
advanced the public interest.

       B. The Degree to Which the Checkpoint Advanced the Public Interest.
Franklin also argues that the checkpoint failed to advance the public interest because (1)
there was no advance publicity of the checkpoint and (2) the checkpoint was terminated
for lack of manpower after a single DUI arrest. He claims that because law enforcement
obtained only one DUI arrest after stopping 285 cars over the course of the one-hour
checkpoint, the State’s interest in reducing impaired driving was not advanced. The State
                                           - 21 -
counters that the checkpoint advanced the public’s interest in deterring and detecting
impaired drivers.

       We note that the second Downey factor, the degree to which the checkpoint
advanced the public interest, may be established “when one can fairly say that roadblocks
contribute in a meaningful way to achieving the sufficiently compelling state interest
[established under the first Downey prong].” Hicks, 55 S.W.3d at 531. In other words,
the State must demonstrate “some meaningful link between its establishment [of the
roadblock] and the achievement of its compelling interest.” Id. at 532. However, the
State is not required to show that the checkpoint was the most effective means of
achieving its stated goal. Id. at 531.

       First, Franklin contends that that the checkpoint in this case failed to advance the
public interest given that there was no advance publicity of it. While the State
acknowledges that no advance notice was given of the checkpoint, it asserts that the lack
of advance publicity does not invalidate the checkpoint.

       Franklin references Section III(D) of the Order, which provides the notification
requirements for checkpoints:

      D. Notification to the Public:

      1. The District Attorney of the area in which the sobriety checkpoint is to
      be conducted should be notified by the District Captain or a designated
      representative.

      2. All local law enforcement agencies within the jurisdiction where the
      checkpoint is to be held should be notified, and their participation in all
      activities will be accepted and welcomed.

      3. The District Captain, or designated representative, shall prepare a press
      release for distribution to the local media in the area of the checkpoint,
      advising that the Tennessee Highway Patrol will be conducting sobriety
      checkpoints. In urban areas, it may not be possible to notify each news
      media because of the large number involved. In these cases, the District
      Captain or designated representative may contact the Public Information
      Officer (PIO) who is permitted to make checkpoint notifications to media
      contacts throughout the state.




                                          - 22 -
             a. This notification will include the date and county the checkpoint
             will be held. The notification will also identify the general location
             the checkpoint will be conducted.

             b. This notification will be given no later than two (2) weeks prior
             to the date the checkpoint is to be held.

             c. An example of a press release is attached with this Order.

             d. After media notification has been made, it is the responsibility of
             the site supervisor to verify that each checkpoint has been publicized
             prior to beginning checkpoint activity.

                    (1) Checkpoints shall not be conducted unless they have been
                    publicized.

        Franklin argues that Section III(D) of the Order was violated because the record
clearly shows that there was no advance publicity of the checkpoint. Specifically, he
cites to Section III(D)(3)(d)(1), which states, “Checkpoints shall not be conducted unless
they have been publicized.” He also mentions Section III(D)(3)(d), which provides, “[I]t
is the responsibility of the site supervisor to verify that each checkpoint has been
publicized prior to beginning checkpoint activity.” Franklin also contends that Section
III(D)(1) and (2) were violated because the District Attorney and all local law
enforcement were never given advance notice of the checkpoint. Although the record
shows that the Red Bank Police Department participated in this checkpoint, Franklin
contends that the order’s requirement that “all local law enforcement agencies within the
jurisdiction” be notified of the checkpoint necessarily included the Chattanooga Police
Department and the Hamilton County Sheriff’s Office, who were never notified of this
checkpoint.

       At the suppression hearing, THP Captain McGill testified that although the
normal procedure was for a media release to be completed, there was no media release
done in this case. In addition, THP Lieutenant Phillips testified that although the box on
the Activity Report had been checked indicating that the media had been notified, no
media notification of the checkpoint had been given. THP Sergeant Matthews, the site
supervisor for the checkpoint, admitted that he checked the box regarding the media
release on the Activity Report because he assumed that those officers higher in
command had notified the media. Following this testimony, the State stipulated that “a
media release was not done for this checkpoint.” Later in the hearing, the defense
admitted a letter from THP Sergeant James Van Dyke, stating that he had searched the
records for a media notification for the relevant checkpoint and because had been unable
                                          - 23 -
to such a notification, his “only conclusion [was] that the required media notification of
this sobriety checkpoint was not accomplished.” We agree with Franklin that the
language in Section III(D) of the Order requires media notification, and we conclude that
neither Captain McGill, Sergeant Matthews, nor any other individual had the discretion
to disregard this requirement.

        Franklin also argues that in addition to the specific notice requirements in the
Order, several Tennessee cases have emphasized the importance of advance publicity on
the basis that advance notice of an impending checkpoint can deter drunk driving. See
Downey, 945 S.W.2d at 111 (“We believe advance publicity furthers the deterrence
rationale for use of a sobriety roadblock . . . . It is the publicity about roadblocks [that]
is the chief means of deterring driving while intoxicated.”); Hicks, 55 S.W.3d at 532,
534 (concluding that advance publicity may be essential if the State relies on deterrence
as a rationale to support the checkpoint and that advance publicity provides citizens with
“the important choice of not exposing themselves to state intrusion without prior
suspicion of wrongdoing” and allows citizens to “‘anticipate and understand the
circumstances’ of the stop” (citation omitted)). While acknowledging that the number of
DUI arrests does not necessarily indicate the success of a checkpoint because publicity
can deter individuals from impaired driving, Franklin argues that the lack of advance
publicity of the checkpoint resulted in zero individuals being deterred from drinking and
driving on the night in question, which means that the State cannot rely on DUI
deterrence when determining whether the checkpoint advanced the public interest.

        Second, Franklin argues that the checkpoint failed to advance the public interest
because it was terminated after only one DUI arrest. He references the Activity Report,
which shows that there was only one misdemeanor arrest for DUI, which was Franklin’s
arrest, and only one felony arrest. In addition, Franklin argues that Sergeant Matthews’
testimony, that he terminated the checkpoint because Trooper Collins and Trooper
Swafford had left the scene and because he did not want to keep the Red Bank police
officers from their priority calls, undermines the State’s claim that the checkpoint
advanced the public interest of detecting drunk drivers. He claims that one DUI arrest
after stopping 285 cars did not effectively curb impaired driving.

       As to this claim, the State, citing the unpublished case of Elliott Aloyo, 2010 WL
596435, at *4, argues that the number of arrests is not determinative of whether a
checkpoint advances the public interest. In Elliott Aloyo, this court held that the relevant
question is not whether the checkpoint was the most effective way of achieving the
State’s goal but whether “‘one can fairly say [the roadblock] contributes in a meaningful
way to achieving the sufficiently compelling state interest.’” Id. (quoting Hayes, 188
S.W.3d at 515). The court also recognized that checkpoints were effective tools for
stopping impaired drivers. Id. Based on Elliott Aloyo, the State asserts that the
                                            - 24 -
checkpoint in this case, which took place on Cherokee Boulevard near Highway 27 where
several DUI incidents had occurred, prevented accidents and, consequently, advanced the
public interest in reducing drunk driving.

        Lastly, we consider Franklin’s argument from the previous section, that the
statistical evidence for this checkpoint and law enforcement’s concern regarding the
safety on a parallel highway do not support a finding that this checkpoint served the
State’s compelling interest in reducing drunk driving. While the State acknowledges that
the statistical information showed no fatal alcohol-related crashes and only four alcohol-
related crashes with injuries, it asserts that Franklin has cited no authority to support his
claim that the THP can only consider crashes involving death or injury and that the Order
does not contain such a requirement. The State also asserts that the checkpoint, which
was chosen from the THP’s pre-approved list, was set up on Cherokee Boulevard to
prevent impaired drivers from accessing Highway 27 and causing accidents. We agree
with both of these arguments.

        The record shows that the State generally argued that it had a compelling interest
in both “detecting and deterring DUI drivers.” We agree with Franklin that the
legitimacy of the State’s deterrence argument is greatly diminished because the public
was never given notice of the impending checkpoint. Removing deterrence as a rationale
severely undercuts the State’s claim that the searches and seizures at this checkpoint were
justified. See Hicks, 55 S.W.3d at 531-32 (“[S]o long as the State chooses to rely on
deterrence as a rationale supporting any roadblock, we reiterate that advance publicity of
the roadblock may be essential, and in those cases where this factor is absent, the State’s
ability to rely upon deterrence to justify the stops is correspondingly diminished.”).

       Therefore, proceeding on the basis that the State’s only interest served by the
checkpoint was to detect impaired drivers, we must next consider whether the method
employed by the State advanced this more limited interest. In considering this issue, we
note that the checkpoint resulted in a single arrest for DUI. We also recognize that
because of the excessive traffic from the Riverbend Festival, the checkpoint had to be
terminated early because officers were waving large numbers of cars through the
checkpoint without stopping them. Despite this evidence, we recognize that some
minimal proof was presented that suggested that the time and location of the sobriety
checkpoint was chosen because of its effectiveness in detecting impaired drivers who had
attended the Riverbend Festival. The proof also established that four alcohol-related
accidents resulting in injuries had occurred at this location during the period from 2003 to
2012 and that the site for this checkpoint was chosen because crashes had occurred on a
parallel highway. Consequently, the site for this checkpoint, which was located on one of
the major thoroughfares for traffic exiting the Riverbend Festival, logically relates to the
State’s interest in detecting impaired drivers. Therefore, we conclude that the sobriety
                                           - 25 -
checkpoint in this case contributed in a meaningful way to achieving the State’s interest
in detecting impaired drivers in that area on June 15, 2012.

        C. Severity of the Checkpoint’s Interference with an Individual’s Liberty or
Privacy. As for this third Downey factor, Franklin contends that the checkpoint severely
interfered with his privacy and liberty because the officers strayed too far from the
guidelines of the Order and exercised too much discretion in the operation of the
checkpoint. He reiterates that there was no advanced publicity of the checkpoint, in
contravention of the Order. He also claims that law enforcement exercised too much
discretion in failing to place adequate signs warning drivers of the checkpoint, in
preventing motorists from avoiding the checkpoint, in determining which cars to stop, in
failing to record a discussion between troopers immediately after Franklin’s field sobriety
tests, and in deciding when to terminate the checkpoint. In response, the State argues that
the lack of advance notice of the checkpoint did not invalidate it and that the checkpoint
did not interfere with Franklin’s liberty or privacy interests because the officers’
discretion at the scene was sufficiently limited. We conclude that the lack of advance
notice, the officers’ exercise of substantial discretion at the scene, and the substantial
deviations from the Order severely interfered with Franklin’s privacy and liberty.

       In considering this third Downey factor, this court must determine whether the
checkpoint was “‘established and operated in accordance with predetermined operational
guidelines and supervisory authority that minimize the risk of arbitrary intrusion on
individuals and limit the discretion of law enforcement officers at the scene.’” Id. at 533
(quoting Downey, 945 S.W.2d at 104); see 5 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 10.8(d) (5th ed. 2017) (“[A] police procedure is less
threatening to Fourth Amendment values when the discretionary authority of the police
(and thus the risk of arbitrary action) is kept at an absolute minimum.”).

       We recognize that “the most important attribute of a reasonable roadblock is the
presence of genuine limitations upon the discretion of officers in the field.” Hicks, 55
S.W.3d at 533. Factors to be considered when determining whether the officers’
discretion on the scene was properly limited are the following: “(1) the decision to set up
the roadblock in the first instance cannot have been made by the officer or officers
actually establishing the checkpoint, and (2) the officers on the scene cannot decide for
themselves the procedures to be used in operating the roadblock.” Id. The absence of
either of these factors will result in the invalidation of the roadblock. Id. In all roadblock
cases, the State must establish that “some authority superior to the officers in the field
decided to establish the roadblock, particularly as to its time and location, and that the
officers adhered to neutral standards previously fixed by administrative decision or
regulation.” Id. “[A]ctive and careful supervision is critical to the constitutional
reasonableness of any roadblock[.]” Id. at 536. In addition, “[t]he central concern with
                                            - 26 -
suspicionless seizures . . . is not how an officer exercises his or her discretion in the
field, but whether he or she exercises an inordinate amount of it” and “[a]ny deviation




                                                                              -
from established guidelines indicates that an on-site officer’s discretion is not properly
limited.” Varner, 160 S.W.3d at 547.

       There are three steps when evaluating the third Downey factor:

       First, the court must decide whether the initial decision to conduct a
       roadblock was made by an authority superior to the officers in the field.
       Second, the court must decide whether the officers conducting the
       roadblock decided for themselves what procedures to use, or if they
       adhered to neutral standards previously fixed by an administrative decision
       or regulation. These two steps can be outcome-determinative in that the
       failure to abide by Downey and its progeny with respect to either
       necessarily terminates our inquiry and invalidates the stop. But if the
       roadblock at issue survives the first two steps, the court then examines the
       execution of the roadblock to determine if it has the other characteristics of
       a constitutionally permissible roadblock. However, unlike in the first two
       steps, the presence or absence of a particular characteristic is not
       necessarily outcome-determinative.

Elliott Aloyo, 2010 WL 596435, at *6.

       1. Decision to Establish the Checkpoint. This first step is satisfied because the
decision to set up the checkpoint was not made by the officers who worked at the
checkpoint. Here, the request for the checkpoint and the site for the checkpoint were
chosen in advance by THP Captain McGill and Lieutenant Phillips, neither of whom
were present during the operation of the checkpoint. Because the decision to establish
the checkpoint, as well as its time and location, was not made by an officer who executed
the checkpoint, we conclude that the first step, as outlined in Elliott Aloyo, is established.

        2. Discretion Given to the Officers On the Scene. For the second step, we must
consider whether the officers on the scene decided for themselves the procedures to be
used in operating this checkpoint. Our review of the video recording of the checkpoint
shows that officers were not stopping all cars in both directions, even though they were
instructed to do so by site supervisor Sergeant Matthews in accordance with the
Request/Authorization form. While the officers appeared to be stopping all south-bound
traffic, officers checking the north-bound traffic were, at times, stopping every other car
or every third car and were intermittently waving all cars through before eventually
returning to momentarily stop cars at random intervals. See Downey, 945 S.W.2d at 111
(“[T]he question of which vehicles to stop at the roadblock should not be left to the
                                            - 27 -
unfettered discretion of police officers at the scene, but instead should be in accordance
with objective standards prefixed by administrative decision.” (internal quotation marks
and citation omitted)). Although the State claims that officers, in accordance with the
Order, failed to stop every car only when traffic at the checkpoint became congested, the
video recording of the checkpoint simply does not support this claim. Instead, this video
recording shows that officers checking traffic in the north-bound lane were utilizing their
discretion to intermittently stop every other car, to stop every third car, and to wave large
numbers of cars through without regard to the actual traffic congestion on the road.

        The video recording of the checkpoint also shows that it was being operated for
purposes other than a sobriety checkpoint. At the suppression hearing, Sergeant
Matthews testified that he instructed all officers during the pre-checkpoint briefing to
momentarily stop every vehicle and that if they did not observe any signs of impairment
or another violation, to allow the vehicle to pass through the checkpoint. However, the
video recording of the checkpoint shows that most, if not all officers, were checking for
expired tags during these momentary stops of motorists. Because checking for expired
tags is entirely unrelated to the State’s asserted interest in detecting impaired drivers, we
conclude that the officers at this checkpoint were “pursuing investigatory agendas that
were wholly distinct and apart from the State’s claimed interest.” Hicks, 55 S.W.3d at
537. Moreover, the fact that illegitimate objectives were being pursued during the
checkpoint is a “reflection of the overall failure by law enforcement officers to establish
this roadblock in a manner consistent with administrative and supervisory oversight.”
Downey, 945 S.W.2d at 111. We reiterate that “[w]hen police officers are permitted,
either through administrative design or supervisory neglect, to actively engage in
suspicionless investigation of criminal activity wholly unrelated to the purposes of the
checkpoint, the constitutional protections afforded by [a]rticle I, section 7 are rendered
utterly without effect or meaning.” Hicks, 55 S.W.3d at 538.

       Finally, the appellate record shows that Sergeant Matthews failed to properly
supervise the conduct of the officers at the checkpoint. The record shows that Sergeant
Matthews had absolutely no interaction with Franklin prior to his arrest. At the
suppression hearing, Sergeant Matthews was unable to recall his exact location at the
time Franklin came through the checkpoint, although he stated that he was “probably in
the road.” The video recording of Franklin’s field sobriety tests and arrest show that
Trooper Collins and Trooper Swafford were the only officers who interacted with
Franklin. Trooper Collins and Trooper Swafford, a trainee, utilized their own discretion
in conducting field sobriety tests and in determining whether to arrest Franklin. All of




                                           - 28 -
these issues weigh against the reasonableness of this checkpoint and lead us to conclude
that the second step in Elliott Aloyo has not been established.1

      3. Characteristics of the Checkpoint. Although we have already held that the
second step was not established, which automatically results in the invalidation of the
checkpoint, we will nevertheless consider the third step in Elliott Aloyo, whether this
checkpoint had the characteristics of a constitutionally permissible roadblock, in order to
conclusively determine the validity of the checkpoint in this case.

        The Tennessee Supreme Court identified several factors that minimized the risk of
arbitrary intrusions on liberty and privacy and supported a finding that a checkpoint is
constitutionally permissible, including:

        (1) stopping all cars traveling in both directions, unless congested traffic
        requires permitting motorists to pass through; (2) taking adequate safety
        precautions, such as warning approaching motorists of the roadblock and
        stopping cars only in a safe and visible area; (3) conducting the roadblock
        with uniformed officers and marked patrol cars with flashing emergency
        lights; and (4) providing advanced publicity of the roadblock to the public
        at large, separate from, and in addition to, any notice warnings given to
        approaching motorists.

Id. at 533 (citing Downey, 945 S.W.2d at 110-12). While each of these four factors
weighs heavily in determining the overall reasonableness of a checkpoint, the absence of
any one of these factors does not necessarily invalidate a checkpoint. Id.

        1
          Although Franklin claims that law enforcement exercised too much discretion in the operation
of the roadblock by preventing motorists from avoiding the roadblock, by failing to preserve the
discussion between Trooper Collins and Trooper Swafford immediately after Franklin’s field sobriety
tests, and by deciding when to terminate the roadblock, we do not believe these issues interfered with
Franklin’s liberty or privacy. The record shows that the officers provided an avoidance route for the
roadblock and that the site supervisor had the discretion to terminate the roadblock if it caused a
hazardous condition. As to Franklin’s claim that the officers’ decision to turn off their microphones when
discussing his field sobriety tests was yet another exercise of excessive discretion in violation of State v.
Ferguson, 2 S.W.3d 912 (Tenn. 1999), we note that Franklin has presented no authority showing that the
troopers were required to include the audio portion of their discussion in the recording, and the Order
includes no requirement that discussions between officers must be recorded. Id. at 917. In addition, no
evidence was presented regarding the degree of negligence in failing to include this discussion in the
recording or the significance of the “destroyed” evidence in light of the probative value and reliability of
secondary or substitute proof. Id. Finally, because the record included the video recording of Franklin’s
performance on the field sobriety tests as well as his BAC result of .012%, we must conclude that there
was other evidence presented at trial that was sufficient to support Franklin’s conviction. Id.


                                                   - 29 -
        Initially, we recognize that the officers at this checkpoint were in uniform, were
wearing reflective vests, and were using flashlights to direct traffic. In addition, there
were marked patrol cars with flashing emergency lights at the scene. Nevertheless, the
remaining three factors, which served to minimize the risk of arbitrary intrusions on
liberty and privacy, were absent from this checkpoint.

       First, we have already noted that the officers failed to stop all cars traveling in
both directions in violation of the Order and the requirements of the
Request/Authorization form. Because the officers had nearly unfettered discretion in
determining which cars to stop, this weighs against a finding that the checkpoint was
constitutionally permissible.

       Second, the record shows that the officers failed to warn motorists of the
checkpoint before entering the tunnel and failed to stop cars only in a safe and visible
area. We note that the site of the checkpoint, which was set up just outside a tunnel with
no warning signs prior to the entrance of the tunnel, was chosen with little thought to the
safety of motorists and the officers conducting the checkpoint. Although it is clear the
officers sought to use the tunnel to disguise the checkpoint until the last possible moment,
the record shows that traffic frequently became congested inside the tunnel, putting both
the motorists and officers at risk for accidents and injuries. Although the State admits
that there were no signs posted before drivers entered the tunnel on Cherokee Boulevard,
it contends that the checkpoint was not placed immediately outside the north side of the
tunnel and that officers did not allow traffic inside the tunnel to become congested for
safety reasons. Although the record provides limited information as to the exact location
of the checkpoint, it does indicate that the checkpoint was located only a short distance
from the exit of the tunnel. We strongly question whether tunnels, which provide the
motorists limited space in which to avoid accidents and place officers and motorists at
increased risk of harm, should ever be utilized to conceal checkpoints. Notwithstanding
that concern, we conclude that the officers’ failure to post warning signs prior to entering
the tunnel undoubtedly prevented motorists from having adequate notice of the
impending checkpoint. Adequate warning signs at the entrance of the tunnel not only
would have increased motorists’ safety but also would have “‘reassure[d] motorists that
the stop [was] duly authorized,’ thereby diminishing the possibility of surprise, concern,
or fright.” Id. at 534 (quoting Ingersoll v. Palmer, 743 P.2d 1299, 1316 (Cal. 1987)).
The absence of adequate warning signs at the entrance to the tunnel and the officers’
failure to stop cars a safe distance away from the tunnel leads to a conclusion that
adequate safety precautions were not taken in this checkpoint and weighs against a
finding that the checkpoint is constitutionally permissible.

       Third, the record shows that no advance publicity was given to the public at large
regarding this checkpoint. In considering this factor, we recognize that “the advance
                                           - 30 -
publicity requirement of Downey was not merely an afterthought or a constitutionally
needless restriction upon otherwise legitimate law enforcement activity.” Id. at 534.
While advance publicity of a checkpoint often provides an important deterrence function
by encouraging individuals not to drive while impaired, advance publicity also has the
effect of giving citizens “the important choice of not exposing themselves to state
intrusion without prior suspicion of wrongdoing.” Id. Moreover, citizens who know that
they may be stopped at a checkpoint can better “‘anticipate and understand the
circumstances’ of the stop.” Id. (quoting Jones v. State, 459 So.2d 1068, 1076 (Fla. Dist.
Ct. App. 1984)). While the absence of advance publicity will not always invalidate a
checkpoint if other measures assure the reasonableness of the stop, we agree that the
publicity requirement in Downey is a “key aspect of a minimally intrusive roadblock,”
id., and its importance cannot be diminished. The fact that several factors minimizing the
risk of arbitrary intrusion were absent from this checkpoint weighs heavily against a
finding that this checkpoint was constitutionally reasonable.

       In addition to our analysis of the Hicks factors, we also recognize that this
checkpoint was not “established and operated in accordance with predetermined
operational guidelines[.]” Downey, 945 S.W.2d at 104. Although the Tennessee
Highway Patrol issued administrative guidelines for sobriety checkpoints in its Order, the
record shows that the following deviations from the Order occurred with regard to the
checkpoint in this case:

      (1) The site for the roadblock was not selected based on motorist and
      officer/member safety and did not ensure that adequate visibility for
      oncoming motorists was provided—Order, III(A)(2).
      (2) The site location did not give motorists adequate prior warning that a
      checkpoint was ahead—Order, III(A)(2)(b).
      (3) The deterrent effect created by the operation of the sobriety checkpoint
      was not considered because no advance publicity of the checkpoint was
      done—Order, III(A)(2)(i).
      (4) The Troop Lieutenant failed to personally inspect the site location to
      ensure compliance with this Order—Order, III(B)(3).
      (5) The District Captain failed to ensure that the site location met the
      criteria to be satisfied when choosing site locations—Order, III(b)(5).
      (6) The District Captain failed to prepare a press release for distribution to
      the local media in the area of the checkpoint advising that the Tennessee
      Highway Patrol would be conducting sobriety checkpoints—Order,
      III(D)(3)
      (7) The site supervisor failed to enter all activity, in its entirety, into the
      Checkpoint Activity System and failed to submit a copy of the Activity

                                          - 31 -
       Report through the chain of command to the District Captain for this
       checkpoint—Order, IV(A)(1).

These substantial deviations from the Order highlight the fact that the checkpoint was not
“carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of
individual officers.” Id. at 110. Moreover, these deviations from the Order establish that
officers’ discretion was not adequately limited at this checkpoint. Because “genuine
limitations on the officers’ discretion [are] an essential component of the roadblock
exception to Article I, section 7 [of the Tennessee Constitution],” id., we conclude that
the failure of the THP to follow the administrative guidelines weighs against the
constitutional reasonableness of this checkpoint.

       For all these reasons, we conclude that the checkpoint in this case violates the
Fourth Amendment and article I, section 7 of the Tennessee Constitution. The State has
failed to show that the checkpoint was established and operated in accordance with
predetermined operational guidelines or with supervisory authority that minimized the
risk of arbitrary intrusion on liberty and limited the officers’ discretion at the scene.
Because the trial court erred in denying Franklin’s motion to suppress, we reverse the
judgments of the trial court, vacate the judgments of conviction, and dismiss all charges
arising from Franklin’s stop at this checkpoint.

       II. Batson Challenge. Franklin, who is Caucasian, also contends that the trial
court erred in overruling his Batson challenges during jury selection. See Batson, 476
U.S. at 96-98. He asserts that the jury pool included only two African-American jurors,
Ms. Henderson and Ms. Williams, who were excused after the State exercised
peremptory challenges against these two jurors. Franklin specifically claims that the
reasons given by the State were not sufficiently race-neutral and that the State’s
purposeful discrimination of these jurors violated Batson. The State counters that it
provided race-neutral reasons for challenging Ms. Henderson and Ms. Williams and that
it never discriminated against them based on race.

       The Equal Protection Clause of the United States Constitution prevents the State2
from exercising peremptory challenges to excuse potential jurors on account of their race.
Batson, 476 U.S. at 89; State v. Hugueley, 185 S.W.3d 356, 368 (Tenn. 2006). In
Batson, 476 U.S. at 89, the United States Supreme Court held that the State’s use of
peremptory challenges to intentionally exclude jurors of the defendant’s race violates that
defendant’s right to equal protection under the Fourteenth Amendment to the United
States Constitution. A few years later, in Powers v. Ohio, 499 U.S. 400, 416 (1991), the

       2
         The Constitution also prohibits a criminal defendant from exercising its peremptory challenges
based on race. Georgia v. McCollum, 505 U.S. 42, 59 (1992).
                                                - 32 -
Court held that a criminal defendant may object to race-based exclusions of jurors
through peremptory challenges regardless of whether the defendant and the excluded
jurors share the same race.

        When a defendant alleges that the State is excluding a juror based on the juror’s
race, Batson provides a three-step process for determining when a peremptory challenge
is discriminatory. 476 U.S. at 96-98; see State v. Kiser, 284 S.W.3d 227, 255 (Tenn.
2009); Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016). The first prong requires the
defendant to make a prima facie showing that a peremptory challenge has been exercised
on the basis of race. Batson, 476 U.S. at 93-94; Kiser, 284 S.W.3d at 255. A defendant
“may make out a prima facie case of purposeful discrimination by showing that the
totality of the relevant facts gives rise to an inference of discriminatory purpose.”
Batson, 476 U.S. at 93-94.

       If the trial court determines that the defendant has made out a prima facie showing
that the peremptory challenge has been exercised on the basis of race, then the second
step requires the State to provide a race-neutral explanation for its challenge. Id. at 97;
State v. Echols, 382 S.W.3d 266, 281 (Tenn. 2012) (citing Kiser, 284 S.W.3d at 255-56).
The State’s race-neutral explanation “must be a clear and reasonably specific account of
the prosecutor’s legitimate reasons for exercising the challenge . . . [but] need not be
persuasive, or even plausible.” Hugueley, 185 S.W.3d at 368 (citing Purkett v. Elem, 514
U.S. 765, 767-68 (1995)). “Unless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race[-]neutral.’” Id. (quoting Purkett, 514
U.S. at 768).

       If the State offers a race-neutral explanation, then the third prong requires the trial
court to determine if the defendant has established purposeful discrimination. Batson,
476 U.S. at 98; see Hugueley, 185 S.W.3d at 368 (“If a race-neutral explanation is
provided, the trial court must then determine, from all of the circumstances, whether the
defendant has established purposeful discrimination.”). When considering this third step,
“the decisive question will be whether counsel’s race-neutral explanation for a
peremptory challenge should be believed.” Hernandez v. New York, 500 U.S. 352, 365
(1991). “[D]etermination of the prosecutor’s discriminatory intent or lack thereof turns
largely on the evaluation of the prosecutor’s credibility, of which the attorney’s demeanor
is often the best evidence.” State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); see
Miller-El v. Cockrell, 537 U.S. 322, 339 (2003) (“Credibility can be measured by, among
other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in accepted trial
strategy.”). “‘The trial court may not simply accept a proffered race-neutral reason at
face value but must examine the prosecutor’s challenges in context to ensure that the
reason is not merely pretextual.’” Kiser, 284 S.W.3d at 255 (quoting Hugueley, 185
                                            - 33 -
S.W.3d at 368). At this third step, “implausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful discrimination.” Purkett, 514 U.S.
at 768. If the court finds that the proffered reason is merely pretextual and that the
challenge is a racially motivated, then the juror may not be excluded. Kiser, 284 S.W.3d
at 255 (citing Hugueley, 185 S.W.3d at 369).

        “[T]he ultimate burden of establishing purposeful discrimination lies with the
party objecting to the peremptory challenge.” Hugueley, 185 S.W.3d at 374 (citing
Batson, 476 U.S. at 93); see also Purkett, 514 U.S. at 768 (recognizing that “the ultimate
burden of persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike”). The Tennessee Supreme Court has emphasized the importance
of a trial court’s findings regarding a Batson violation:

       The trial judge must carefully articulate specific reasons for each finding on
       the record, i.e., whether a prima facie case has been established; whether a
       neutral explanation has been given; and whether the totality of the
       circumstances support a finding of purposeful discrimination. The trial
       court’s factual findings are imperative in this context.

Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 906 (Tenn. 1996); see
Batson, 476 U.S. at 97.

        “On appeal, the trial court’s findings are to be accorded great deference and not set
aside unless clearly erroneous.” Woodson, 916 S.W.2d at 906; see Foster, 136 S. Ct. at
1747 (noting that the third step in Batson “turns on factual determinations,” and that “‘in
the absence of exceptional circumstances,’ we defer to state court factual findings unless
we conclude that they are clearly erroneous.” (citation omitted)). “Deference [to the trial
court’s findings on the issue of discriminatory intent] is necessary because a reviewing
court, which analyzes only the transcripts from voir dire, is not as well positioned as the
trial court is to make credibility determinations.” Miller-El, 537 U.S. at 339.

       Voir Dire. During the voir dire proceedings in Franklin’s case, the prosecutor
asked if any of the prospective jurors knew the defendant or his friends or family, and a
prospective juror, who identified herself as Ms. Young, stated that she had known
Franklin “for years” and knew Franklin’s “whole family.” Later, the prosecutor and a
prospective juror, presumably Ms. Young,3 had the following exchange:



       3
         After viewing the voir dire proceedings in their entirety, we can reasonably infer that these
statements are attributable Ms. Young.

                                               - 34 -
       [The Prosecutor]:               And this is a slight variation on all of this, I’m
                                       going to ask you if there’s anyone here who
                                       would be uncomfortable standing in judgment.
                                       Let’s say you would not want to convict Mr.
                                       Franklin of DUI, even if the State does what it’s
                                       supposed to do and proves everything? Anyone
                                       feel that they couldn’t do that?

       [Ms. Young]:                    I’d have a hard time, I mean—

       [The Prosecutor]:               Well, yeah, okay, because you know him.
                                       Anyone else? And, really, this is the time, you
                                       know; don’t feel like you can’t tell us because
                                       this would be the time to tell us. Anyone feel
                                       that if the State proves the case, that you just
                                       wouldn’t want to convict him?

The transcript does not indicate the prospective jurors’ responses to this question. The
State then asked the prospective jurors if they had ever driven after drinking, and the
following discussion occurred between the prosecutor and Ms. Henderson:

       [The Prosecutor]:       All right. And Ms. Henderson, what do you do in
                               terms of drinking and driving?

       [Ms. Henderson]:        I try not to drive, drinking, especially if I feel like I
                               overindulged, but I don’t want anybody else to drive,
                               so I try not to, but I’ve been to a restaurant before and
                               had like two drinks and then I would drive, but if I feel
                               like I can’t, I always get somebody.

A short time later, the prosecutor had the following interaction with a prospective juror,
presumably Mr. Seaton4:

       [The Prosecutor]:       And this borders on possibly embarrassing, but do any
                               members of the jury panel, have you been charged
                               with DUI, ever? Okay. Can you tell us about that, do
                               you mind? And speak up, please.


       4
           Again, after viewing the voir dire proceedings and the motion for new trial hearing in their
entirety, we can reasonably infer that these statements are attributable to Mr. Seaton.
                                                - 35 -
[Mr. Seaton]:       Would have been 2001, also in the state of Georgia.

[The Prosecutor]:   All right. And what was the result of—you were
                    stopped for DUI?

[Mr. Seaton]:       Yes.

[The Prosecutor]:   And what happened to the case?

[Mr. Seaton]:       I was convicted of DUI.

[The Prosecutor]:   You were convicted?

[Mr. Seaton]:       Yes.

[The Prosecutor]:   And did you plead guilty to it or—

[Mr. Seaton]:       I believe my attorney pled nolo, I guess.

[The Prosecutor]:   Okay. All right. But you pled?

[Mr. Seaton]:       Yes.

[The Prosecutor]:   All right. Have you had any since then?

[Mr. Seaton]:       No.

[The Prosecutor]:   Did it have any [e]ffect on you to change your habits at
                    all?

[Mr. Seaton]:       Absolutely, especially financially.

[The Prosecutor]:   All right. But so you haven’t been DUI since?

[Mr. Seaton]:       Correct.

[The Prosecutor]:   Okay. Do you think that that was ultimately a good
                    thing, that you got stopped for a DUI?

[Mr. Seaton]:       Didn’t seem so at the time, but, in hindsight, probably.

                                  - 36 -
Thereafter, the prosecutor asked the following question:

       [The Prosecutor]:           All right. So if you were told that that’s your
                                   job, whether you liked it or not, would you be
                                   able to find Mr. Franklin guilty if the State
                                   provided all the elements of the crime beyond a
                                   reasonable doubt? If you would, can you raise
                                   your hand? All right. Because if you can’t,
                                   that’s not—I mean the purpose of the jury is to
                                   weigh the evidence and determine guilt or
                                   innocence, okay? .

The voir dire transcript does not indicate the prospective jurors’ responses to this
question.

       Still later, defense counsel asked the prospective jurors if they would “have a
problem with listening to the evidence, determining the credibility of witnesses, which
will be a big factor in this case, and appl[ying] that evidence to the law that [the trial
judge] gives you and then mak[ing] a determination as to guilt or innocence of Bob
Franklin?” Once again, the voir dire transcript does not show the prospective jurors’
responses to this question.

       Near the conclusion of jury selection, the prosecutor used two of its peremptory
challenges to exclude Ms. Henderson and Ms. Williams. In a hearing outside the
presence of the potential jurors, defense counsel made a Batson challenge, asserting that
the State had used its peremptory challenges to remove the only two African-American
prospective jurors from the panel in what appeared to be a “systematic exclusion” of
individuals based on race. The trial court found that the defense had made a prima facie
case of purposeful discrimination and said that it wished to hear from the State.

       The prosecutor stated that she excused Ms. Henderson because “[s]he drinks and
drives. It was solely about that.” When the defense said its notes indicated that Ms.
Henderson actually said that she had drunk alcohol and driven in the past, but did not
drive after drinking now, the prosecutor insisted that “what [Ms. Henderson] said was she
tries not to drive while drinking; if she feels like she can’t drive, she’ll have someone
with her. That is so crucial to the point in this case.” The trial court held that although
the defense had made a prima facie showing of purposeful discrimination, the State had
provided a “legitimate” race-neutral reason for excusing Ms. Henderson.

      As for the other juror, the prosecutor said that when Ms. Williams was “asked if
she could judge another person and find somebody guilty of DUI if the State proved their
                                          - 37 -
case, [she] did not raise her hand, where the others did.” The defense argued that the
State had failed to provide a race-neutral explanation for excusing Ms. Williams because
despite the fact that the prosecutor “had every opportunity to pursue” Ms. Williams’
purported failure to raise her hand, she “didn’t raise an objection to it at the time” and
instead “just summarily struck this lady,” which did not overcome the defense’s prima
facie showing.

     When the trial court inquired about the State’s failure to ask additional questions
when Ms. Williams did not raise her hand, the State replied:

              Well, Your Honor, in addition to the things that are asked, we
       always, all of us, have to look at the attitude that is being put forth from a
       jury member as well. I look and see if somebody is slouching or if they
       seem to, like, not want to be here. And, you know, those are some of the
       things as well, but she—I think it’s fairly critical if she is a person who
       cannot bring herself to judge another person or to find him guilty if the
       State proves [its] case, that’s a critical piece.

When the trial court reiterated the defense’s concern that the State failed to question Ms.
Williams further when she did not raise her hand, the prosecutor said, “Well, I actually
couldn’t keep track of everything while I was there answering questions, and I did have
help from my helpers.” Defense counsel immediately countered that when he asked Ms.
Williams whether she could be fair and impartial, she answered it in the positive. He also
emphasized that none of the prospective jurors indicated that they had any personal bias
or gave any reason why they could not serve as a juror in Franklin’s case. For these
reasons, defense counsel claimed that the State had failed to overcome the defense’s
prima facie case of purposeful discrimination. Upon hearing this, the prosecutor insisted
that “[n]ot being able to judge somebody [was] a critical piece of being a juror.”
Ultimately, the trial court determined that although the defense had made a prima facie
showing of purposeful discrimination, it was “accept[ing] the statement given by the
State” for excusing Ms. Williams and was overruling this Batson challenge, even though
it believed that the State “possibly could have gone into [the issue] further.” The court
observed that the State’s reasons for excluding Ms. Williams were not as strong as those
for Ms. Henderson, in light of the statements Ms. Henderson made about drinking and
driving.

       Motion for New Trial Hearing. At the motion for new trial hearing, the defense
admitted an affidavit from Benjamin McGowan, one of Franklin’s attorneys.
McGowan’s affidavit stated that Charles Seaton, a Caucasian male who ultimately served
on and rendered a verdict in Franklin’s case, admitted during voir dire that he had
received a DUI conviction. The defense argued that McGowan’s affidavit established
                                           - 38 -
that the State’s exclusion of Ms. Henderson violated Batson because Mr. Seaton, a
similarly-situated Caucasian juror, was not also excluded. The defense noted that the
prosecutor failed to ask Mr. Seaton whether he could be fair and impartial despite his
DUI conviction before Seaton was seated on the jury. The prosecutor immediately
replied that she did not strike Mr. Seaton, the man with the old DUI conviction, because
he had “owned up to what he had done” by pleading guilty and because Mr. Seaton had
said that the conviction affected his life for the better. She said she consistently kept
people like Mr. Seaton on her jury panels. She added that she believed Mr. Seaton’s
response differed greatly from Ms. Henderson’s, who stated that she tried not to drink
and drive but sometimes did.

       The prosecutor also asserted that “there were actually three people of African-
American origin” in the jury pool. She said that in addition to Ms. Henderson and Ms.
Williams, there was a prospective juror named Mr. Collins, who was also African-
American. She stated that “Mr. Collins had a background where he was attentive at all
times, he was soft-spoken, because he did respond to some of the things we’d asked, and
he just was, his job that he did, everything about him, we were hoping to have Mr.
Collins serve [on Franklin’s jury].”

       The prosecutor stated that she used a peremptory strike to exclude Ms. Williams
after her assistant notified her that Ms. Williams failed to raise her hand when asked
whether she could convict someone if the State proved its case. She stated that she did
not “have eyes everywhere” and that she did “rely on [her] assistants, because that’s why
they’re there for the jury selection, because there’s so much [going on], to looking at my
own notes, looking at the people, asking the question[s].” She stated that one of her
assistants who was present during voir dire could testify “from her own mouth [about] the
observations that she made of [Ms. Williams] throughout [voir dire].” The prosecutor
added:

             Now, I had noticed some of the same body language, the not
      wanting to be involved, the never volunteering much, but that particular
      question, that is a crucial one, it’s the most crucial one, because I know,
      with DUI’s, juries sometimes tend to say . . . but for the grace of God, go I,
      and yes the State proved their case, but I want to give this guy a chance.
      And, of course, they don’t know if the person is an 11th DUI offender or a
      1st, but that’s what we deal with and so that is the crucial question, the
      most crucial question, that I ask.

            And honestly, I’m not sure that there would be much [of a] follow-
      up question that would do anything but say, Oh, yeah, well, maybe, but I

                                          - 39 -
       think that was a telling issue, when she wouldn’t raise her hand to say that
       yes, if the State proves the elements of the crime, I will convict.

The trial court said that it would allow the prosecutor to present testimony from her
assistant. The court then stated, “I think there’s case law to the effect that a lot of Batson
concerns itself with credibility issues” and that it was “somewhat relying” on the
prosecutor’s credibility “that this lady didn’t raise her hand appropriately.”

       Later, the court stated, for the record, that it recalled only two African-American
prospective jurors on the panel, even though the State claimed there were three African-
Americans. It concluded that when the State used two peremptory challenges to exclude
both the African-American prospective jurors, the court found that the defense had made
a prima facie showing of discrimination. The trial court reiterated its finding that the
defendant failed to carry its burden of proving that the State purposefully discriminated
against Ms. Henderson. The court recalled Ms. Henderson’s admission that she would
drink and drive and concluded that the State’s decision to exclude Henderson on that
basis was not discriminatory.

       Still later, Heather Elmore, a DUI secretary for the Hamilton County District
Attorney’s Office, testified for the prosecution. Elmore said that she often assisted the
prosecutor in DUI trials and routinely watched potential jurors during voir dire and took
notes regarding their responses to questions. She said that during voir dire in Franklin’s
case, Ms. Williams did not want to make eye contact with anyone, especially the
prosecutor. She noted that Ms. Williams kept “her head down” and her “arms crossed,”
and “leaned back in the chair” like she did not want to be there. Moreover, Elmore said
that Ms. Williams “most definitely did not raise her hand when [she] was asked if she
could be in judgment of another person” and that she and another employee, who was
also assisting, brought this to the prosecutor’s attention. Specifically, Elmore told the
prosecutor that Ms. Williams “did not raise her hand, she has been looking down [and]
doesn’t want to, apparently, be involved.” In addition, Elmore maintained that there was
another prospective African-American juror on the panel, Mr. Collins, who was a
pediatric nurse, and that she and the prosecutor discussed the possibility of eliminating
enough other individuals in order to have Collins serve on the jury in Franklin’s case.
However, she acknowledged that Collins was not actually selected to sit as a juror at
Franklin’s trial. Elmore said she was unsure whether the prosecutor had already
exhausted her three peremptory challenges at the time the jury was chosen.

      At the conclusion of the motion for new trial hearing, the trial court noted that it
did not personally observe Ms. Williams not raising her hand. The court stated that it
was “initially relying on the credibility of [the prosecutor], but she’s told us, honestly,
how she made that decision, so I accept that.” The court then found Heather Elmore “to
                                            - 40 -
be credible in how she explains [Ms. Williams’] actions in regard to raising her hand.”
The trial court said it did not believe “that a great deal of follow-up would be needed in
regard to not raising your hand if you could convict somebody, based on the proof that
was presented.”

       We note that because there was no discriminatory intent inherent in the
prosecutor’s explanations for the peremptory strikes against Ms. Henderson and Ms.
Williams, our analysis in this case will focus on Batson’s third step, namely the trial
court’s determination that the defendant failed to show purposeful discrimination. We
also conclude that the record, which includes the voir dire proceeding as well as the
motion for new trial hearing, is sufficient for our review.

       A. Juror Henderson. Franklin contends that the State’s explanation for striking
Ms. Henderson was pretextual. He claims that if Ms. Henderson’s statement about trying
not to drink and drive was the actual reason for her exclusion, then there might be a race-
neutral basis for striking Ms. Henderson from the jury. However, Franklin asserts, citing
United States v. Atkins, 843 F.3d 625, 638 (6th Cir. 2016), that when the circumstances
surrounding Ms. Henderson’s removal are compared to those of Charles Seaton, a
Caucasian juror who admitted to drinking and driving, had a DUI conviction, and served
on the jury, then it becomes obvious that the State did not have a race-neutral reason for
striking Ms. Henderson.

       The State counters that Atkins is distinguishable because Mr. Seaton and Ms.
Henderson provided different answers to questions regarding drinking and driving. It
asserts that Ms. Henderson knew that drinking and driving was wrong but admitted that
she sometimes drove after consuming alcoholic drinks while Mr. Seaton acknowledged
that he had faced the consequences of drinking and driving and stated that his DUI
conviction had a positive effect on him. The State maintains that, given the disparity in
these responses, the trial court properly found that defendant had failed to satisfy his
burden of establishing purposeful discrimination.
       In Atkins, the Sixth Circuit recognized that a side-by-side comparison of jurors
may be necessary when determining whether the prosecution engaged in purposeful
discrimination:

              “It is well established that a Batson violation may be shown by
       disparate treatment of white and minority jurors—that is, if a ‘side-by-side
       comparison[] of some black [potential jurors] who were struck and white
       ones who were not’ shows that the only material distinction between the
       removed black and the retained white individuals is their race.” Torres-
       Ramos, 536 F.3d at 559 (second alteration in original) (quoting Dretke, 545
       U.S. at 241, 125 S. Ct. 2317). In conducting a comparative juror analysis,
                                          - 41 -
       the compared jurors need not be “‘similarly situated’ in all respects.”
       Odeneal, 517 F.3d at 420. In fact, the empaneled white jurors need not
       even match the stricken black venirepersons in all of the characteristics the
       prosecution identified in striking the black venirepersons. Dretke, 545 U.S.
       at 247 n.6, 125 S. Ct. 2317. It suffices that, after reading the “voir dire
       testimony in its entirety,” we find that the differences identified by the
       prosecution “seem far from significant.” Id. at 247, 125 S. Ct. 2317.
       Additionally, the “failure of the prosecution to inquire regarding a reason
       purported to be a basis for a [prospective] juror’s dismissal serves as
       evidence of discrimination.” Odeneal, 517 F.3d at 421.

Id. at 631-32.

       We agree that a side-by-side comparison of African-American panelists who were
struck to Caucasian panelists who were allowed to serve as jurors can be helpful in
determining whether purposeful discrimination exists. See Miller-El v. Dretke, 545 U.S.
231, 241 (2005). As the United States Supreme Court recognized, “[i]f a prosecutor’s
proffered reason for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Id.

       Here, the prosecutor’s sole justification for striking Ms. Henderson was because
“[s]he drinks and drives.” During voir dire, the prosecutor asked her what she did “in
terms of drinking and driving,” and Ms. Henderson replied:

       I try not to drive, drinking, especially if I feel like I overindulged, but I
       don’t want anybody else to drive, so I try not to, but I’ve been to a
       restaurant before and had like two drinks and then I would drive, but if I
       feel like I can’t, I always get somebody.

Later, during voir dire, the prosecutor asked if any of the members of the jury panel had
“been charged with DUI,” and Mr. Seaton responded that he had been “convicted of
DUI” in “2001” in “Georgia.” He explained that he pled nolo contendere to that charge
and had never been convicted of another DUI. When the prosecutor asked if his DUI
made him “change [his] habits,” Mr. Seaton said, “Absolutely.” The prosecutor then
asked him if he believed that his DUI was “ultimately a good thing,” and Mr. Seaton
replied, “Didn’t seem so at the time, but, in hindsight, probably.”

      After carefully reviewing the record, we believe that Ms. Henderson’s and Mr.
Seaton’s responses were sufficiently different to warrant disparate treatment by the State.
While Ms. Henderson admitted to drinking and driving, Mr. Seaton said that his DUI
                                          - 42 -
conviction made him change his habits and affected his life for the better. A close review
of the record as a whole indicates that race was not a factor when the State decided to
strike Ms. Henderson and to keep Mr. Seaton. See id., 545 U.S. at 252. Accordingly, we
conclude that the trial court’s finding that Franklin failed to satisfy his burden of proof
with regarding to this Batson challenge was not clearly erroneous.

        B. Juror Williams. Franklin also argues that the prosecution purposefully
discriminated against Ms. Williams when it struck her from the jury. Referencing the
transcript from voir dire, Franklin argues that the only juror who replied that she could
not sit in judgment of the defendant was Ms. Young, a juror who knew Franklin, and that
the State’s question of “Anyone else?” before continuing with her voir dire questions
indicated that no other individuals indicated that they could not sit in judgment of another
person. Moreover, he claims that defense counsel asked the potential jurors if they would
have a problem applying the evidence to the law before making a determination as to his
guilt or innocence and that because the transcript does not show that anyone responded or
indicated that they were unable to judge his guilt or innocence, this further contradicts the
State’s alleged basis for striking Ms. Williams from the jury.

        Franklin also asserts that if Ms. Williams had failed to raise her hand in response
to the prosecution’s questioning or had, in some other way, indicated that she could not
sit in judgment of another individual, then the State would have further questioned her,
especially if such an indication by Ms. Williams would have bothered the prosecutor
enough to want to exclude her from the jury. He asserts that the State’s failure to follow
up with Ms. Williams constitutes evidence of racial discrimination.

        Lastly, Franklin argues that this court must consider the State’s reasons for
striking Ms. Williams that were provided at the time of the Batson challenge and not the
reasons that were provided weeks later at the motion for new trial hearing when the State
attempted to justify its actions. See Foster, 136 S. Ct. at 1754. He asserts that Elmore’s
testimony, which was presented for the first time at the motion for new trial hearing, was
presented “in an attempt to justify the striking of Ms. Williams from the panel.” Franklin
insists that none of the reasons provided by Elmore were given by the State at the time of
the Batson challenge of Ms. Williams and that the State’s “shifting explanations” make
the initial reasons for excluding Ms. Williams even more suspect. See id., 136 S. Ct. at
1751 (noting that “the prosecution’s principal reasons for the strike shifted over time,
suggesting that those reasons may be pretextual.”).

      We recognize that a prosecutor’s failure to ask additional questions on a topic of
concern can suggest that the prosecution’s race-neutral explanation is merely pretextual.
See Miller-El, 545 U.S. at 244, 246 (recognizing that a prosecutor’s failure to ask follow-
up questions may suggest purposeful discrimination); Ex parte Travis, 776 So.2d 874,
                                           - 43 -
881 (Ala. 2000) (stating that “the State’s failure to engage in any meaningful voir dire
examination on a subject the State alleges it is concerned about is evidence suggesting
that the explanation is a sham and a pretext for discrimination.”); Atkins, 843 F.3d at 632
(holding that the failure of the State to inquire regarding a reason purported to be a
ground for prospective juror’s dismissal serves as proof of discrimination). However, the
record in this case clearly shows that Ms. Williams’ failure to raise her hand was noticed
by Heather Elmore, the prosecutor’s assistant, and not the prosecutor herself, which
explains why the prosecutor did not ask any follow-up questions of Ms. Williams at the
time that Ms. Williams failed to raise her hand. The record further shows that the
prosecutor relied on Elmore’s statement to her during a break in voir dire before
exercising the peremptory challenge against Ms. Williams. When evaluating this Batson
challenge, the court determined that the prosecutor had been “honest” about how she
discovered Ms. Williams’ failure to raise her hand before concluding that Elmore was
“credible in how she explain[ed] [Ms. Williams’] actions in regard to raising her hand.”
Consequently, we conclude that the prosecution’s claims regarding Ms. Williams’ failure
to raise her hand are fully supported by the record.

        We also acknowledge that a prosecutor’s shifting explanations for a juror’s
removal can provide evidence of purposeful discrimination. See Miller-El, 545 U.S. at
246 (stating that the State’s new explanation for excusing the African-American juror,
after the prosecutor’s misrepresentations of that juror’s responses during voir dire were
brought to light, “reek[ed] of afterthought”). Despite Franklin’s claims that the
prosecution’s justifications for striking Ms. Williams changed over time, a review of the
record shows that the prosecutor never wavered in her explanations for exercising the
peremptory strike against Ms. Williams. The prosecutor asserted during voir dire that (1)
Ms. Williams had failed to raise her hand in response to whether she would be able to
find Franklin guilty if the State proved its case and (2) Ms. Williams’ body language
indicated that she did not want to serve as a juror. The record shows that the State
asserted these same explanations at the motion for new trial hearing. Moreover, Elmore’s
testimony corroborated that these race-neutral reasons were why the prosecution chose to
exercise a peremptory challenge against Ms. Williams.

       Although non-verbal communication, such as demeanor or inattentive behavior,
can form a race-neutral basis for a peremptory strike, we recognize that race-neutral
explanations based on subjective assessments “must be carefully scrutinized.” State v.
Carroll, 34 S.W.3d 317, 320 (Tenn. Crim. App. 2000) (citing United States v. Jenkins, 52
F.3d 743, 746 (8th Cir. 1995); United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.
1991)). Of particular significance in this case was the fact that the trial court did not
observe Ms. Williams’ failure to raise her hand. The United States Supreme Court, while
acknowledging that a trial judge’s “firsthand observations” of a juror’s demeanor are of
substantial importance when evaluating the prosecution’s explanation for a peremptory
                                          - 44 -
strike, held that “no decision of this Court” has held that “a demeanor-based explanation
must be rejected if the judge did not observe or cannot recall the juror’s demeanor.”
Thaler v. Haynes, 559 U.S. 43, 48-49 (2010). Instead, it recognized that even “in the
absence of a personal recollection of the juror’s demeanor,” a trial judge can accept a
prosecutor’s explanation as race-neutral. Id. at 49; see State v. Mark Lee Dale, No.
M2001-01205-CCA-R3-CD, 2002 WL 1204933, at 3 (Tenn. Crim. App. June 5, 2002)
(concluding that although neither the trial court nor defense counsel observed the body
language cited by the State in its explanation, the trial court did not err in accrediting the
prosecution’s claim that the strike was exercised on a race-neutral ground”).

        In this case, Elmore’s detailed testimony at the motion for new trial hearing gives
credence to the prosecutor’s assertion that Ms. Williams failed to raise her hand when
asked if she could convict Franklin in the event that the State proved its case. The record
is clear that the trial court accredited the prosecutor’s and Elmore’s explanations for the
strike on the basis of Williams’ non-verbal conduct, both her failure to raise her hand and
her body language. Because the State’s explanations for excusing Ms. Williams were
neither implausible nor unreasonable and were fully supported by the record, we
conclude that the trial court’s ruling with regard to this juror was not clearly erroneous.

        III. Denial of Motion to Dismiss, Or In the Alternative, Motion to Exclude.
Lastly, Franklin argues that because Tennessee Code Annotated section 55-10-413(f)
(2017), which gives the TBI $250 for each DUI conviction that is obtained using a blood
or breath test, is unconstitutional, the trial court erred in denying his motion to dismiss, or
in the alternative, to exclude the evidence on that basis. He specifically asserts that Code
section 55-10-413(f) (2017) violates his right to due process and a fair trial under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I,
sections 8 and 9 of the Tennessee Constitution because it creates a “contingent-fee-
dependent system” that gives the TBI and its forensic scientists a financial incentive to
ensure convictions. Franklin also asserts that the jury instruction given by the trial court
failed to remedy the unconstitutionality of Code section 55-10-413(f) (2017). Finally, he
claims Code section 55-10-413(f) (2017) violates the Eighth Amendment to the United
States Constitution and article I, section 16 of the Tennessee Constitution prohibitions
against excessive fines. The State counters that the trial court properly denied Franklin’s
motion because Code section 55-10-413(f) (2017) is constitutional. We conclude that
because Code sections 55-10-419 (2012) and 55-10-413 (2013-2017) violate principles of
due process, the trial court erred in failing to grant the motion to exclude the test results
in this case.

       At the time of Franklin’s arrest, Code section 55-10-419 (2012), which imposed a
$250 BADT fee for blood and breath tests and required the deposit of this fee into the
TBI’s toxicology unit intoxicant testing fund, provided:
                                            - 45 -
(a)(1) In addition to all other fines, fees, costs and punishments now
prescribed by law, including the fee imposed pursuant to § 55-10-403(h), a




                                                                           -
blood alcohol or drug concentration test (BADT) fee in the amount of two
hundred and fifty dollars ($250) shall be assessed upon a conviction for a
violation of § 39-13-106, § 39-13-213(a)(2), § 39-13-218, § 39-17-418, §
55-10-205 or § 55-10-401, for each offender who has taken a breath alcohol
test on an evidential breath testing unit provided, maintained and
administered by a law enforcement agency for the purpose of determining
the breath alcohol content or has submitted to a chemical test to determine
the alcohol or drug content of the blood or urine.

(2) In addition to all other fines, fees, costs and punishments now
prescribed by law, including the fee imposed pursuant to § 55-10-403(h), a
blood alcohol or drug concentration test (BADT) fee in the amount of one
hundred dollars ($100) shall be assessed upon conviction for a violation of
§ 39-13-106, § 39-13-213(a)(2), § 39-13-218 or § 55-10-401, if the blood
or urine of the convicted person was analyzed by a publicly funded forensic
laboratory or other forensic laboratory operated by and located in counties
having a population of not less than eighty-seven thousand nine hundred
(87,900) nor more than eighty-eight thousand (88,000), according to the
2000 federal census or any subsequent federal census, for the purpose of
determining the alcohol or drug content of the blood.

(b)(1) The fee authorized in subdivision (a)(1) shall be collected by the
clerks of the various courts of the counties and forwarded to the state
treasurer on a monthly basis for deposit in the Tennessee [B]ureau of
[I]nvestigation (TBI) toxicology unit intoxicant testing fund created as
provided in subsection (c), and designated for exclusive use by the TBI for
the purposes set out in subsection (c).

(2) The fee authorized in subdivision (a)(2) shall be collected by the clerks
of the various courts of the counties and shall be forwarded to the county
trustees of those counties on a monthly basis and designated for the
exclusive use of the publicly funded forensic laboratory in those counties.

(c)(1) There is created a fund within the treasury of the state, to be known
as the TBI toxicology unit intoxicant testing fund.
(2) Moneys shall be deposited to the fund pursuant to subsection (b), and as
may be otherwise provided by law, and shall be invested pursuant to § 9-4-
603. Moneys in the fund shall not revert to the general fund of the state,
                                   - 46 -
        but shall remain available for appropriation to the Tennessee bureau of
        investigation, as determined by the general assembly.

        (3) Moneys in the TBI toxicology unit intoxicant testing fund and available
        federal funds, to the extent permitted by federal law and regulation, shall be
        used to fund a forensic scientist position in each of the three (3) bureau
        crime laboratories, to employ forensic scientists to fill these positions, and
        to purchase equipment and supplies, pay for the education, training and
        scientific development of employees, or for any other purpose so as to
        allow the bureau to operate in a more efficient and expeditious manner. To
        the extent that additional funds are available, these funds shall be used to
        employ personnel, purchase equipment and supplies, pay for the education,
        training and scientific development of employees, or for any other purpose
        so as to allow the bureau to operate in a more efficient and expeditious
        manner.

T.C.A. § 55-10-419 (2012) (emphases added)5; see id. § 55-10-413(f) (2013-2017)
(including similar provisions to T.C.A. § 55-10-419 (2012)).

        On May 21, 2018, shortly after our decision on this issue in the companion case of
Rosemary L. Decosimo, 2018 WL 733218, the General Assembly amended Code section
55-10-413 to require that the $250 BADT fee be deposited into the state general fund
rather than the TBI’s intoxicant testing fund:

        (f)(1) In addition to all other fines, fees, costs, and punishments now
        prescribed by law, including the fee imposed pursuant to subsection (d), a
        blood alcohol or drug concentration test (BADT) fee in the amount of two
        hundred fifty dollars ($250) shall be assessed upon a conviction for driving
        under the influence of an intoxicant under § 55-10-401, vehicular assault
        under § 39-13-106, aggravated vehicular assault under § 39-13-115,
        vehicular homicide under § 39-13-213(a)(2), simple possession or casual
        exchange of a controlled substance under § 39-17-418, reckless driving
        under § 55-10-205, or aggravated vehicular homicide under § 39-13-218,
        for each offender who has taken a breath alcohol test on an evidential
        breath testing unit provided, maintained, and administered by a law
        enforcement agency for the purpose of determining the breath alcohol


        5
          On July 1, 2013, this section of the code was transferred from Code section 55-10-419 to Code
section 55-10-413. In 2016 and 2017, the legislature made minor amendments to Code section 55-10-
413, although the provisions regarding the $250 BADT fee for blood and breath tests and its deposit into
the TBI toxicology unit intoxicant testing fund remained the same.
                                                - 47 -
       content or has submitted to a chemical test to determine the alcohol or drug
       content of the blood or urine.

       (2) The fee authorized in subdivision (f)(1) shall be collected by the clerks
       of the various courts of the counties and forwarded to the state treasurer on
       a monthly basis for deposit in the state general fund, to be used only as
       appropriated by the general assembly.

       (3) Any moneys in the TBI toxicology unit intoxicant testing fund as of
       June 30, 2018, shall revert to the general fund on such date, to be used only
       as appropriated by the general assembly.


T.C.A. § 55-10-413(f)(1)-(3) (effective May 21, 2018) (emphases added).

       Because Franklin’s arguments regarding the unconstitutionality of Code section
55-10-413(f) are substantially the same as those raised in Rosemary L. Decosimo, we
adopt the law and analysis from our decision in that case and incorporate it here. See
Rosemary L. Decosimo, 2018 WL 733218, at *8-18. After reviewing the record in this
case, we conclude that Code sections 55-10-419 (2012) and 55-10-413 (2013-2017)
violate principles of due process.

        While the State contends that any possible bias on the part of forensic scientists
can be offset by procedural safeguards, such as an independent testing of samples, a
thorough cross-examination of the forensic scientist at trial, or a jury instruction
addressing the credibility of TBI forensic scientists, we conclude that these procedural
safeguards fail to remedy the due process violations resulting from the fee system itself.
Cf. Ward, 409 U.S. at 61-62 (rejecting the claim that the procedural safeguards of an
appeal and trial de novo corrected the due process violation); Brown, 637 F.2d at 280
(recognizing that an accused has a right to an unbiased magistrate or judge with or
without a jury and with or without the right to appeal and a trial de novo before a jury);
see also City of White House v. Whitley, 979 S.W.2d 262, 267 (Tenn. 1998) (concluding
that “the due process violation resulting from the lack of an attorney judge is not cured by
the statutory right to a de novo appeal.”). We conclude that independent testing is not an
adequate safeguard because it impermissibly shifts the burden of proof from the State to
the defense. Because the State has the duty to pursue truth and justice, it has the
obligation to provide an accurate, unbiased BAC result, not a result that is deemed correct
until disproved by the defendant. Under the scenario suggested by the State, the
defendant is forced to obtain an independent test, to pay for an attorney to defend him,
and to hire an expert to challenge the BAC result in order to do what an unbiased TBI
forensic scientist should have done from the beginning. Lastly, because so many DUI
                                           - 48 -
cases end in guilty pleas, rather than trials, we conclude that neither a jury instruction nor
vigorous cross-examination of TBI forensic scientists corrects the fact that Code sections
55-10-419 (2012) and 55-10-413 (2013-2017) violate due process. Accordingly, we hold
that the trial court erred in failing to exclude the test results in this case.

        Finally, Franklin contends that the $250 fee created by Code sections 55-10-419
(2012) and 55-10-413 (2013-2017) is an excessive fine that violates the Eight
Amendment of the United States Constitution and article I, section 16 of the Tennessee
Constitution. Franklin asserts that this $250 fee provides neither compensation nor
restitution to the TBI for the cost of each test, which is approximately $100, and that this
fee is “an example of an arbitrary deprivation of property—prohibited by substantive due
process—through which the TBI has been able to balance their forensic division budget,
and, recently, even to profit.” He claims that if court costs are not adjusted to match the
actual or reasonably estimated costs incurred, they become an excessive fine as
prohibited by the Eighth Amendment of the United States Constitution and article I,
section 16 of the Tennessee Constitution. The State responds that the $250 fee is not a
fine and is reasonably related to the cost of conducting the blood test.

        The United States Constitution and the Tennessee Constitution prohibit excessive
fines. U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”); Tenn. Const. art. I, § 16 (“That
excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”). Moreover, any fine over $50 must be assessed by a jury. Tenn.
Const. art. VI, § 14 (“No fine shall be laid on any citizen of this State that shall exceed
fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at
the time they find the fact, if they think the fine should be more than fifty dollars.”). In
France v. State, 65 Tenn. 478, 485 (1873), the Tennessee Supreme Court recognized that
the provisions of article VI, section 14 “are manifestly an amplification” of the provisions
in article I, section 16, which preclude the imposition of excessive fines.

        We conclude that the $250 BADT fee is not an excessive fine. Historically, the
prohibition on excessive fines was “aimed at the abuse of the unlimited power of courts
in respect to fines, and was not intended as a limitation upon the power of legislation.”
France, 65 Tenn. at 485-86. In accordance with this principle, the Tennessee Supreme
Court held that article VI, section 14 “refers to cases where the court has a discretion in
fixing the amount of the fine” and has “no application . . . where the Legislature has
peremptorily fixed the fine.” Id. at 486. Because the $250 BADT fee, which was
imposed by the General Assembly, is mandatory in every case in which an individual is
convicted of the specified offenses, the trial court has no discretion when assessing it, and
this fine cannot be considered excessive. See State v. Martin, 940 S.W.2d 567, 571
(Tenn. 1997) (recognizing that if a statute “effectively prevent[s] the trial judge from
                                            - 49 -
exercising even the slightest measure of discretion” when assessing a fine, then the fine
cannot be considered excessive). In light of the aforementioned authorities, we simply
cannot conclude that the $250 BADT fee violates the Eighth Amendment of the United
States Constitution or article I, section 16 of the Tennessee Constitution.

                                        CONCLUSION

       Because the trial court erred in denying the motion to suppress given the
unconstitutionality of the checkpoint, we reverse the judgments of the trial court, vacate
Franklin’s convictions, and dismiss the charges.6 Otherwise, because Code sections 55-
10-419 (2012) and 55-10-413 (2013-2017) violate principles of due process, we would
reverse the convictions based on the trial court’s failure to exclude the blood test
evidence, and we would order a new trial.


                                                       _______________________________
                                                       CAMILLE R. MCMULLEN, JUDGE




       6
        Because the Tennessee Supreme Court granted the State’s application for permission to appeal
Rosemary L. Decosimo, 2018 WL 733218, a decision in that case may affect our holding in Franklin.
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