                                                                                      05/11/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                             February 15, 2017 Session

              STATE OF TENNESSEE v. SCARLET I. MARTIN

                Appeal from the Circuit Court for Cheatham County
                       No. 17289 Larry J. Wallace, Judge
                     ___________________________________

                          No. M2016-00615-CCA-R3-CD
                      ___________________________________


Defendant, Scarlet I. Martin, was convicted of driving under the influence of an
intoxicant (“DUI”) and driving under the influence of an intoxicant with a blood alcohol
concentration (“BAC”) greater than .08 (“DUI per se”). She appeals, arguing that the
evidence was insufficient to support her convictions and that the trial court erred by
denying her motion to suppress the results of a warrantless blood draw. After carefully
reviewing the record, we conclude that the evidence was sufficient and that the blood
draw was justified by exigent circumstances. Accordingly, the judgments of the trial
court are affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Rob McKinney and Brittney Hollis, Nashville, Tennessee, for the appellant, Scarlet I.
Martin.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Ray Crouch, District Attorney General; and Jack Arnold and Talmage
M. Woodall, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                      OPINION



                      I. Procedural History and Factual Summary
        After a preliminary hearing, Defendant was indicted for DUI and DUI per se.
Defendant filed a motion to suppress the test results of a warrantless blood draw. The
trial court denied the motion. Defendant proceeded to a bench trial and was convicted as
charged.

        At trial, Trooper Bryant Campbell of the Tennessee Highway Patrol (“THP”)
testified that on February 5, 2014, he was dispatched to the site of a single-car accident
on Chapmansboro Road. The accident occurred around 10:30 p.m. THP was notified of
the accident by the Cheatham County Sheriff’s Department. Deputies James Curran and
William Zimmerlee were also dispatched to the scene. When Trooper Campbell arrived
around 11:05 p.m., Defendant and a male passenger were receiving medical treatment
and being loaded into the back of an ambulance. Trooper Campbell spoke briefly with
the medical personnel, but he did not address Defendant or the passenger.

        Pursuant to THP protocol, Trooper Campbell commenced a vehicle accident
investigation. Trooper Campbell observed that the vehicle had departed from the road
and gone “off down an embankment in a bunch of thicket-like area.” There were about
50 feet of tire markings on the road, and it appeared that the vehicle travelled down the
hill for about 150 feet. Trooper Campbell surmised that the vehicle was traveling north at
the time of the accident. During the course of his on-site investigation, Trooper
Campbell did not find any evidence of alcohol consumption and, therefore, did not have
any suspicion of DUI at the time.

       Because the vehicle appeared inoperable, Trooper Campbell called for a tow truck.
The tow truck arrived around midnight. THP policy requires a patrolman to wait at the
scene of an accident until a tow truck operator has completely secured the vehicle by
loading the vehicle on the tow truck. The patrolman is also required to ensure that the
tow truck operator retrieves all parts of the vehicle and does not leave anything behind.

       After leaving the scene of the accident, Trooper Campbell went to the hospital to
interview the Defendant and the passenger. He arrived at the hospital around 12:20 a.m.
Defendant was being prepared for a CT scan, so Trooper Campbell spoke with the
passenger, who appeared to have “scratches and marks all on him.” When Defendant
returned from the scan, Trooper Campbell “could smell alcoholic beverage coming off of
her.” The odor of alcohol was strong enough that the trooper recognized it “right away.”
Trooper Campbell also noticed a “slight” slurring of Defendant’s speech.

      Defendant admitted to Trooper Campbell that she was driving the vehicle and that
she and the passenger were returning from Nashville. Defendant also admitted she had
two alcoholic beverages before driving. At this point, Trooper Campbell suspected
Defendant of committing DUI so he read the implied consent form to Defendant. She
                                           -2-
refused to sign the form and refused to submit to a blood draw. Trooper Campbell
directed one of the nurses to proceed with a blood draw without Defendant’s consent.
After the blood was drawn, Trooper Campbell secured the blood. A forensic analysis of
the blood conducted by the Tennessee Bureau of Investigation determined that
Defendant’s BAC was .17, which is more than twice the legal limit in Tennessee.

      Trooper Campbell testified that there was nothing that he could have done to
speed up the investigation. He later learned that the crashed vehicle was registered to
Defendant’s father.

       The trial court found Trooper Campbell’s testimony credible and found Defendant
guilty as charged. The trial court merged both convictions and accepted the parties’
agreement to a minimum sentence. Defendant filed a timely notice of appeal.

                                       II. Analysis

        Defendant argues that there was insufficient evidence to support her convictions.
Defendant also argues that the trial court erred by denying her motion to suppress
because the warrantless search and seizure of her blood was unconstitutional. The State
maintains that the evidence was sufficient and that the warrantless blood draw was
justified based on exigent circumstances. Defendant maintains that any exigency that
existed was created by law enforcement.

                              A. Sufficiency of the Evidence

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal
to demonstrate why the evidence is insufficient to support the conviction. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court
must answer is whether any rational trier of fact could have found the accused guilty of
every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the
strongest legitimate view of the evidence and to all reasonable and legitimate inferences
that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As
such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Moreover, we may not substitute our own “inferences for those drawn by the trier of fact
from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions
                                           -3-
concerning the credibility of the witnesses and the weight and value to be given to
evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
“The standard of review ‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       A person commits DUI by operating a motor vehicle on a public road while an
intoxicant “impairs the driver’s ability to safely operate a motor vehicle by depriving the
driver of the clearness of mind and control of oneself that the driver would otherwise
possess.” T.C.A. § 55-10-401(1). A person also commits DUI by operating a motor
vehicle on a public road if “[t]he alcohol concentration in the person’s blood or breath is
eight-hundredths of one percent (0.08%) or more.” T.C.A. § 55-10-401(2).

       At trial, the State presented evidence that Defendant was involved in an
automobile accident, which resulted in Defendant and her passenger being hospitalized.
When Trooper Campbell encountered Defendant at the hospital, he immediately smelled
the odor of alcohol coming from Defendant. He also observed that Defendant’s speech
was slightly slurred. Defendant admitted to consuming alcoholic beverages before
driving home. The crashed vehicle belonged to Defendant’s father. Defendant refused to
submit to a voluntary blood draw. The toxicology results of the forced blood draw
showed that Defendant’s BAC was .17.

      In the light most favorable to the State, the foregoing facts establish that
Defendant was driving an automobile while unsafely impaired by an intoxicant and while
possessing a BAC of .08 or more. Accordingly, the evidence is sufficient for DUI and
DUI per se. Defendant is not entitled to relief on this issue.

                                 B. Warrantless Blood Draw

        In reviewing a trial court’s ruling on a motion to suppress, this Court will uphold
the trial court’s findings of fact “unless the evidence preponderates otherwise.” State v.
Bell, 429 S.W.3d 524, 528 (Tenn. 2014) (citing State v. Climer, 400 S.W.3d 537, 556
(Tenn. 2013)). Witness credibility, the weight and value of the proof, and the resolution
of conflicts in the proof “are matters entrusted to the trial court as the trier of fact.” Id. at
529. “The party prevailing 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.” State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The trial court’s
resolution of questions of law and application of the law to the facts are reviewed de novo
with no presumption of correctness. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008).
                                              -4-
       When reviewing a trial court’s ruling on a motion to suppress, this Court “may
consider the entire record, including not only the proof offered at the hearing, but also the
evidence adduced at trial,” State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012) (citing
State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998)), as well as at the preliminary
hearing, State v. McCrary, 45 S.W.3d 36, 41 (Tenn. Crim. App. 2000) (citing Henning,
975 S.W.2d at 299). Thus, we will set forth some of the additional evidence presented at
the preliminary hearing and at the suppression hearing.

       At the preliminary hearing, Deputy Curran testified that, when he arrived at the
accident scene, Defendant appeared “highly upset” and was crying. He overheard
Defendant saying that “she couldn’t afford a DUI because she was in nursing school.”
Deputy Zimmerlee testified that he “detected a strong odor of alcoholic beverage coming
from” Defendant while she was in the back of an ambulance. Deputy Curran was trained
to do DUI investigations, but he did not participate in the investigation in this case in any
capacity because Trooper Campbell was “working it.” Similarly, Deputy Zimmerlee did
not conduct any type of investigation because the deputies “let THP deal with it.” The
deputies were advised by the sheriff’s department “to have THP work” automobile
accidents with injuries. When Trooper Campbell arrived, the deputies turned the scene
over to him.

       At the preliminary hearing, Trooper Campbell testified that he could “smell an
alcoholic beverage coming from” Defendant when he first encountered her at the
hospital, and she was acting “very uncooperative.” Defendant’s passenger “admitted that
he had been out drinking.” He said that Defendant had a couple of drinks, but he did not
know exactly how many. Defendant’s blood was drawn at 12:54 a.m. on February 6,
2014. Trooper Campbell acknowledged that the jail was near the hospital and that he
could have gotten a warrant from the magistrate. Trooper Campbell had previously
applied for a search warrant and knew how to do so. However, nearly two and one-half
hours had elapsed since the accident, and Trooper Campbell still would have had to call a
magistrate down to the jail to approve the search warrant. Trooper Campbell did not
have the capability to personally contact a judicial officer for a search warrant.

        At the suppression hearing, Trooper Campbell testified consistently with his
preliminary hearing testimony and his trial testimony. The automobile accident occurred
at approximately 10:30 p.m. Trooper Campbell arrived at the scene around 11:05 p.m.
and was there for about an hour. He estimated that the deputies left the scene after about
fifteen minutes because “they had other calls to go to.”

       While at the scene of the accident, Trooper Campbell did not have any reason to
believe that he was investigating a potential DUI. He did not discuss any details of the
                                            -5-
case with Deputies Curran and Zimmerlee aside from the basic facts that the car appeared
to have gone off the road and rolled down an embankment and that the passengers were
injured and about to go to the hospital. According to Trooper Campbell, most highway
patrolmen prefer not to discuss facts or theories with other officers at an accident site
when conducting an investigation. This is so that the investigator can develop his own
theory of the case and obtain as much evidence as possible directly from the primary
sources rather than through hearsay. Trooper Campbell added that, “in a lot of counties,
the deputies aren’t trained to investigate crashes” beyond receiving “a short course.”

       Trooper Campbell arrived at the hospital just before 12:30 a.m. on February 6,
2014. After developing suspicion of DUI, Trooper Campbell read the implied consent
form to Defendant. She refused to consent to a blood draw at approximately 12:45 a.m.,
which was approximately two hours and fifteen minutes after the accident occurred.
Trooper Campbell then ordered an involuntary blood draw based on the time elapsed
since the accident and the fact that the passenger was injured. Trooper Campbell was
also concerned that Defendant might have been released from the hospital while he was
obtaining a warrant. He did not make any attempt to obtain a warrant or inquire as to
how long it would take to do so. Trooper Campbell explained that, based on previous
experience, it probably would have taken him an additional thirty minutes to prepare a
warrant application and it would have taken the magistrate another thirty minutes to get
to the courthouse. On the one previous occasion that Trooper Campbell had obtained a
search warrant for a blood draw in Cheatham County at night, it took about an hour and
twenty minutes.

       Trooper Campbell testified that he could have sought assistance from the local
police or the sheriff’s department if he thought he needed assistance at any time.
However, Trooper Campbell also testified that, even if he had suspected a DUI soon after
arriving at the accident scene, it would not have altered the timeline of events because he
would have had to complete his investigation at the accident scene before going to the
hospital.

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches
and seizures. Tennessee’s constitutional protections regarding searches and seizures are
identical in intent and purpose to those in the federal constitution. State v. Turner, 297
S.W.3d 155, 165 (Tenn. 2009). “[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. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997). One such exception is recognized for exigent circumstances.
State v. Meeks, 262 S.W.3d 710, 723 (Tenn. 2008). However, the exigent circumstances
                                           -6-
relied upon for a warrantless search cannot be created by the actions of law enforcement
officers. State v. Carter, 160 S.W.3d 526, 532 (Tenn. 2005). The burden is on the State
to prove that a warrantless seizure was constitutionally permissible. State v. Nicholson,
188 S.W.3d 649, 656-57 (Tenn. 2006); Henning, 975 S.W.2d at 298.

       A blood draw conducted at the behest of a law enforcement officer for law
enforcement purposes is a search subject to constitutional protection. Birchfield v. North
Dakota, -- U.S. --, 136 S. Ct. 2160, 2173 (2016); Missouri v. McNeely, -- U.S. --, 133 S.
Ct. 1552, 1558 (2013); State v. Reynolds, 504 S.W.3d 283, 304 (Tenn. 2015). However,
under the Fourth Amendment’s exception for exigent circumstances, in some situations a
warrantless blood draw may be constitutionally permissible in order to prevent the
destruction of evidence due to the metabolic dissipation of alcohol in blood stream.
McNeely, 133 S. Ct. at 1561; Schmerber v. California, 384 U.S. 757, 770-71 (1966).
Whether a warrantless blood draw based upon exigent circumstances is constitutionally
permissible depends on a “case-by-case assessment” in light of the totality of the
circumstances. McNeely, 133 S. Ct. at 1561. In this context, the Supreme Court has
explained:

       In those drunk-driving investigations where police officers can reasonably
       obtain a warrant before a blood sample can be drawn without significantly
       undermining the efficacy of the search, the Fourth Amendment mandates
       that they do so. We do not doubt that some circumstances will make
       obtaining a warrant impractical such that the dissipation of alcohol from the
       bloodstream will support an exigency justifying a properly conducted
       warrantless blood test.

Id. (citation omitted). The Court further explained:

       [T]he fact that a particular drunk-driving stop is “routine” in the sense that
       it does not involve “ special facts,” such as the need for the police to attend
       to a car accident, does not mean a warrant is required. Other factors present
       in an ordinary traffic stop, such as the procedures in place for obtaining a
       warrant or the availability of a magistrate judge, may affect whether the
       police can obtain a warrant in an expeditious way and therefore may
       establish an exigency that permits a warrantless search. The relevant
       factors in determining whether a warrantless search is reasonable, including
       the practical problems of obtaining a warrant within a timeframe that still
       preserves the opportunity to obtain reliable evidence, will no doubt vary
       depending upon the circumstances in the case.

Id. at 1568.
                                            -7-
       Since McNeely, this Court has had several occasions to consider whether a
warrantless blood draw was justified based on exigent circumstances. For support,
Defendant relies on the cases of State v. Charles A. Kennedy, No. M2013-02207-CCA-
R9-CD, 2014 WL 4953586 (Tenn. Crim. App. Oct. 3, 2014), no perm. app. filed, and
State v. James Dean Wells, No. M2013-01145-CCA-R9-CD, 2014 WL 4977356 (Tenn.
Crim. App. Oct. 6, 2014), no perm. app. filed. In contrast, the State relies on State v.
Darryl Alan Walker, No. E2013-01914-CCA-R3-CD, 2014 WL 3888250 (Tenn. Crim.
App. Aug. 8, 2014), no perm. app. filed, to support its argument that exigent
circumstances were present in this case.

        In Charles A Kennedy, two officers detained the defendant in a traffic stop at
approximately 12:30 a.m. 2014 WL 4953586, at *8. The defendant appeared
intoxicated, and he was arrested at approximately 12:50 a.m. Id. A third officer arrived
and drove the defendant to the police station to conduct field sobriety tests “on more level
ground.” Id. The first two officers followed the third officer to the station, where they
arrived at approximately 1:00 a.m. Id. The defendant refused to perform field sobriety
tests and also refused to consent to a blood draw after being read the implied consent
form. Id. The refusal occurred at 1:17 a.m. Id. Two officers left the police station with
the defendant at approximately 1:30 a.m., and they arrived at a hospital around 2:00 a.m.
for an involuntary blood draw. Id. The defendant’s blood was finally drawn at 2:30 a.m.
Id. A county magistrate testified that officers were required to appear in person to apply
for a search warrant and that the process usually took between twenty minutes and one
hour. Id. at *9. Usually, only one magistrate would have been on duty at that time of
night. Id. This Court found that the State failed to prove that exigent circumstances
justified the warrantless blood draw. Id. Noting that nothing prevented one of the
officers from obtaining a search warrant while the other officers took the defendant to the
hospital, we concluded that the record did “not support the State’s argument that
obtaining a warrant in this case would have required significantly more time than the
warrantless blood draw.” Id. at *10.

       In James Dean Wells, we explained:

              The trial court here examined the totality of the circumstances and
       concluded that exigent circumstances did not exist. In making this
       determination, the trial court found that five officers were simultaneously
       investigating the incident, that a magistrate was on duty in a building ten
       minutes from the place where the defendant was apprehended, and that it
       took a magistrate an average of ten minutes to review a warrant. The trial
       court further found that the defendant waited at the hospital, which was
       essentially across the street from the gas station where he was apprehended,
                                            -8-
       for approximately one hour until his blood was drawn . . . . Based on the
       time elapsed between the violation and the blood draw, the speed with
       which a warrant could have been obtained, and the availability of law
       enforcement personnel to obtain the warrant, we conclude that the
       circumstances were not exigent, as the record demonstrates that police
       could have “reasonably obtain[ed] a warrant . . . without significantly
       undermining the efficacy of the search” and were, therefore, required to do
       so under the Fourth Amendment . . . .

2014 WL 4977356, at *5.

       In Darryl Alan Walker, a state trooper was dispatched to the scene of a motorcycle
crash. 2014 WL 3888250, at *1. When the trooper arrived, the driver was already en
route to the hospital, but a passenger remained at the scene. Id. The trooper interviewed
the passenger and noticed an odor of alcohol. Id. The trooper then surveyed the scene
and observed a damaged motorcycle that “appeared to have driven off the road into a
ditch.” Id. A tow truck took between twenty and thirty minutes to arrive, and the trooper
had to assist the tow truck driver in loading the motorcycle. Id. After approximately an
hour at the scene, the trooper made about a twenty-minute drive to the hospital. Id. Once
at the hospital, the driver was being prepared to receive stitches. Id. The trooper
questioned the motorcycle driver about the accident. Id. The driver smelled of alcohol,
had bloodshot eyes, and had difficulty following the conversation. Id. The trooper was
required to wait while the driver received stitches. Id. After the medical procedure was
complete, the trooper placed the driver under arrest and read the implied consent form.
Id. At some point, the driver admitted to being at a bar prior to the accident and to
having one beer. Id. at *2. The trooper testified that it would have taken additional time
to obtain a search warrant application from his supervisor and then more time to locate a
magistrate. Id. The defendant was arrested just over two hours after the trooper initially
arrived at the scene of the accident, and the defendant’s blood was drawn after the arrest.
Id. at *5. Given the totality of the circumstances, this Court concluded that the
warrantless blood draw was justified based on exigent circumstances. Id.

       Although not cited by either party, we also reviewed several other cases in which
this Court has considered whether a warrantless blood draw was justified under exigent
circumstances. It appears that Darryl Alan Walker is our only case since McNeely to
uphold a warrantless blood draw on the basis of exigent circumstances.1 Nonetheless,

       1
         See, e.g., State v. Helkie Nathan Carter, No. M2015-00280-CCA-R9-CD, 2016 WL 3044216, at
*7 (Tenn. Crim. App. May 20, 2016) (finding no exigent circumstances where the defendant’s blood was
drawn about seventy minutes after traffic stop despite hospital being ten minutes from courthouse where
warrant could have been obtained), perm. app. granted, (Tenn. Mar. 8, 2017) (remanding for
reconsideration); State v. Micah Alexander Cates, No. E2014-01322-CCA-R3-CD, 2015 WL 5679825, at
                                                   -9-
given the strong factual similarities between this case and Darryl Alan Walker, we are
compelled to conclude that the search in this case was justified by exigent circumstances.

       In Darryl Alan Walker, a lone trooper responded to the scene of a single-
motorcycle accident, and the driver was already on the way to the hospital when the
trooper arrived. It took the trooper about an hour to wait for a tow truck and to assist the
tow truck driver in securing the wrecked vehicle. The trooper then drove straight to the
hospital where he had to wait for the motorcycle driver to receive stitches before the
trooper could complete questioning about the accident. After developing probable cause
of DUI, the trooper arrested the motorcycle driver approximately two hours after the
accident occurred. The trooper testified that it would have taken additional time to
prepare a search warrant application and even more time to contact and obtain approval
from a local magistrate.

       Similarly, in this case, Trooper Campbell responded alone to a single-vehicle
accident. When he arrived, the driver and the passenger were already in an ambulance
about to go to the hospital. Although there were two sheriff’s deputies already at the
scene, those deputies left about fifteen minutes after Trooper Campbell arrived. The
deputies did not assist with the accident or DUI investigation and did not relay any of
their DUI suspicions to Trooper Campbell. Trooper Campbell followed THP protocol
and remained at the scene for about an hour, during which he investigated the accident
and waited for a tow truck driver to arrive and secure the wrecked vehicle. Trooper
Campbell did not find any evidence of DUI at the scene. He then drove straight to the
hospital, where the driver was about to receive a CT scan. Trooper Campbell spoke to
the passenger and waited for the driver. When the driver returned, Trooper Campbell
questioned the driver. Upon developing probable cause of DUI, Trooper Campbell read


*8-9 (Tenn. Crim. App. Sept. 28, 2015) (finding no exigent circumstances where the defendant was
injured in a car accident and his blood was drawn about forty-five minutes later but the State failed to
show why one of the eleven responding officers could not have sought a search warrant while the
defendant was being transported to the hospital), perm. app. granted, (Tenn. Nov. 16, 2016) (remanding
for reconsideration); State v. Melvin Brown, No. W2014-00162-CCA-R9-CD, 2015 WL 1951870, at *5
(Tenn. Crim. App. Apr. 30, 2015) (finding no exigent circumstances where the State failed to prove that
one of two law enforcement officers could not have obtained a search warrant during the nearly two and a
half hours between the defendant’s car accident and the blood draw), perm. app. granted, (Tenn. Nov. 22,
2016) (remanded for reconsideration); State v. Boyce Turner, No. E2013-2304-CCA-R3-CD, 2014 WL
7427120, at *7 (Tenn. Crim. App. Dec. 30, 2014) (finding no exigent circumstances where the State did
not show why neither the supervisor responding to the arresting state trooper nor one of the five
responding police officers could have helped obtain a warrant prior to the blood draw an hour after the
traffic stop), no perm. app. filed; State v. James K. Gardner, No. E2014-00310-R3-CD, 2014 WL
5840551, at *9 (Tenn. Crim. App. Nov. 12, 2014) (finding no exigent circumstances where the State did
not show why one of the three responding deputies could not have sought a warrant prior to the blood
draw about forty-four minutes after the traffic stop), no perm. app. filed.
                                                    - 10 -
the implied consent form to the driver, which was about two hours and fifteen minutes
after the accident occurred. The driver’s blood was drawn about ten minutes later.

        Trooper Campbell testified that he conducted the accident investigation and the
subsequent DUI investigation as efficiently as he could. He was the only trooper on duty
in the area at that time. Although two sheriff’s deputies also responded to the scene, they
left on other calls shortly after Trooper Campbell arrived. Even if those deputies had
been available to assist Trooper Campbell in a DUI investigation, Trooper Campbell
would not have solicited their help or the help of anyone else because he was unaware
that a DUI investigation was needed until he went to the hospital. By the time Trooper
Campbell suspected DUI, over two hours had elapsed since the accident occurred. At
that point, Trooper Campbell opted for an involuntary blood draw to preserve the driver’s
blood because he figured that obtaining a search warrant at that time of night would have
taken about another hour based on his previous experience doing so.

       This case is distinguishable from Charles A. Kennedy and James Dean Wells. In
those cases, multiple officers from the same law enforcement agency were involved in
the DUI investigation, and the officers knew that they were performing a DUI
investigation shortly after the outset of their interaction with the defendant. Under such
circumstances, it was quite feasible for the officers in those cases to simultaneously
proceed with both continuing the DUI investigation and seeking a search warrant.
Furthermore, the length of the delay between the arrest and the blood draw in those cases
was shorter than the delay in this case.

       We are mindful of the Supreme Court’s concern about rulings on this subject that
“might well diminish the incentive for jurisdictions ‘to pursue progressive approaches to
warrant acquisition that preserve the protections afforded by the warrant while meeting
the legitimate interests of law enforcement.’” McNeely, 133 S. Ct. at 1563 (quoting State
v. Rodriguez, 156 P.3d 771, 779 (Utah 2007)). Accordingly, nothing in this opinion is
intended to promote law enforcement protocol that delays the efficient investigation of
DUI cases or to dissuade officers from different law enforcement entities from
collaborating in such cases. However, we conclude that Trooper Campbell acted
reasonably under the facts of this case by authorizing a warrantless blood draw so as to
prevent a delay of over three hours before Defendant’s blood could be preserved as
evidence of DUI.2 This was not a situation where the exigent circumstances were created


       2
           In McNeely, the supreme court acknowledged:

       While experts can work backwards from the BAC at the time the sample was taken to
       determine the BAC at the time of the alleged offense, longer intervals may raise
       questions about the accuracy of the calculation. For that reason, exigent circumstances
                                                - 11 -
by the state actors. Trooper Campbell performed his work as efficiently as he could
under the circumstances. Seeking a search warrant for Defendant’s blood would have
taken considerable additional time, thereby significantly undermining the efficacy of the
criminal investigation. Therefore, the warrantless draw of Defendant’s blood was
justified on the basis of exigent circumstances.

                                           III. Conclusion

        Based on the foregoing reasons, the judgments of the trial court are affirmed.




                                                                  __________________________
                                                                 TIMOTHY L. EASTER, JUDGE




        justifying a warrantless blood sample may arise in the regular course of law enforcement
        due to delays from the warrant application process.

133 S. Ct. at 1563.
                                                 - 12 -
