        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  April 1, 2014 Session

          STATE OF TENNESSEE v. KEVIN CORTEZ CHRYSTAK

                  Appeal from the Circuit Court for Madison County
                         No. 12-550 Nathan B. Pride, Judge


               No. W2013-01219-CCA-R3-CD - Filed August 13, 2014


The Defendant, Kevin Cortez Chrystak, appeals from the Madison County Circuit Court’s
order affirming his conviction for violation of the implied consent statute. See Tenn. Code
Ann. § 55-10-406. In the trial court, the Defendant raised a statutory interpretation argument
concerning the mandatory blood draw provision of the implied consent law. On appeal, the
Defendant argues that the mandatory provision is unconstitutional, violating his Fourth
Amendment Rights, and that he did not violate the implied consent law when he presented
for the mandatory blood draw. The Defendant has waived his constitutional argument on
appeal. However, pursuant to principles of statutory construction, we agree with the
Defendant that he did not violate the implied consent law when his blood was obtained via
the mandatory provisions. Following our review, we reverse the order of the trial court
upholding the implied consent violation and dismiss the charge.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                           Reversed and Charge Dismissed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which JERRY L. S MITH and
N ORMA M CG EE O GLE, JJ., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Kevin Cortez Chrystak.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James
G. Woodall, District Attorney General; and Matthew Floyd, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND
        On April 30, 2012, the Defendant was arrested and charged with driving under the
influence of an intoxicant (DUI) and violating the implied the consent law. The Defendant
was convicted of the implied consent violation in Madison County General Sessions Court
and, thereafter, appealed his conviction to the circuit court and retained counsel.1 At the
subsequent hearing, Officer Buddy Crowell, Officer Matthew Fullerton, and the Defendant
testified.

        According to Officer Crowell, in the early morning hours of April 30, 2012, he pulled
the Defendant over for driving without taillights. Officer Crowell noticed an odor of alcohol,
and in response to questioning, the Defendant informed Officer Crowell that he had
consumed a “few” drinks. Thereafter, Officer Crowell had the Defendant exit the vehicle
and perform several field sobriety tests. Officer Matthew Fullerton also arrived on the scene
to assist Officer Crowell with the stop. In Officer Crowell’s opinion, the Defendant
performed poorly on the tests and was under the influence of an intoxicant. During the
process of assessing the Defendant’s performance, Officer Crowell learned from dispatch
that the Defendant had two prior convictions for DUI.

       After placing the Defendant in custody in the back of his patrol car, Officer Crowell
read Tennessee’s Implied Consent Form to the Defendant. The Defendant was first advised
that, because he had two prior DUI convictions, a blood draw was mandatory. The
Defendant was then asked if he would consent to the blood draw, and he replied in the
negative and refused to sign the consent form. According to Officer Crowell, he was
following “standard procedure on DUI’s” in his series of advice and questions to the
Defendant regarding the implied consent law.

       Officer Fullerton provided a similar recount of events as that of Officer Crowell at the
hearing. Officer Fullerton testified that he heard Officer Crowell read the implied consent
form to the Defendant “at least twice.”

         The Defendant’s version differed in that, according to the Defendant, after he first
refused the blood draw, he then gave his consent to Officer Crowell while they were still
present at the DUI scene. The Defendant explained, “I said no at first. Then he read me the
. . . rules or whatever. I told him we got to do what we got to do. I said, well I’ll do it.”
Also according to the Defendant, Officer Crowell never presented him with the consent form
to sign. The Defendant stated that he did not understand why he was being asked for his


1
  From the statements of the district attorney general at the hearing on the implied consent violation, it
appears that the DUI charge was still pending at that time. We were not provided with any information on
the disposition of the DUI charge, whether the Defendant was found guilty or not guilty, pled guilty, or the
charge was dismissed.

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consent when he was informed that the test was mandatory regardless of his consent. He did
not believe he had a choice in the matter. The Defendant did not resist the subsequent blood
draw at the hospital.

         Following the witnesses’s testimony, the parties argued about the statutory
interpretation of the implied consent law and its mandatory provision. At the time the
Defendant was charged with an implied consent violation, April 30, 2012,2 Tennessee Code
Annotated section 55-10-406 provided as follows:

                (a)(1) Any person who drives a motor vehicle in this state is deemed to
        have given consent to a test or tests for the purpose of determining the
        alcoholic content of that person’s blood, a test or tests for the purpose of
        determining the drug content of the person’s blood, or both tests. However,
        no such test or tests may be administered pursuant to this section, unless
        conducted at the direction of a law enforcement officer having reasonable
        grounds to believe the person was driving while under the influence of alcohol,
        a drug, any other intoxicant or any combination of alcohol, drugs, or other
        intoxicants as prohibited by § 55-10-401, or was violating the provisions of §
        39-13-106, § 39-13-213(a)(2) or § 39-13-218.
                ....
                (3) Any law enforcement officer who requests that the driver of a motor
        vehicle submit to either or both tests authorized pursuant to this section, for the
        purpose of determining the alcohol or drug content, or both, of the driver’s
        blood, shall, prior to conducting either test or tests, advise the driver that
        refusal to submit to the test or tests will result in the suspension by the court
        of the driver’s operator’s license . . . .
                (4)(A) If such person, having been placed under arrest and then having
        been requested by a law enforcement officer to submit to either or both tests,
        and having been advised of the consequences for refusing to do so, refuses to
        submit, the test or tests to which the person refused shall not be given, and the
        person shall be charged with violating this subsection (a). . . .
                ....
                (f)(2) If a law enforcement officer has probable cause to believe that the
        driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), §
        39-13-218 or § 55-10-401 and has been previously convicted of §
        39-13-213(a)(2), § 39-13-218 or § 55-10-401 the officer shall cause the driver
        to be tested for the purpose of determining the alcohol or drug content of the


2
  An offense “shall be prosecuted under the act or statute in effect at the time of the commission of the
offense.” See Tenn. Code Ann. § 39-11-112.

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       driver’s blood. The test shall be performed in accordance with the procedure
       set forth in this section and shall be performed regardless of whether the driver
       does or does not consent to the test.
               ....
               (4) The results of a test performed in accordance with subdivision
       (f)(1), (f)(2) and (f)(3) may be offered as evidence by either the state or the
       driver of the vehicle in any court or administrative hearing relating to the
       accident or offense subject to the Tennessee Rules of Evidence.

After the Defendant’s arrest, the legislature amended section 55-10-406 by deleting the first
sentence of subdivision (a)(4)(A) and substituting instead the following:

              Except as required by subsection (f), court order or search warrant, if
       such person, is placed under arrest, requested by a law enforcement officer to
       submit to either or both tests, advised of the consequences for refusing to do
       so, and refuses to submit, the test or tests to which the person refused shall not
       be given, and the person shall be charged with violating this subsection (a).

See Act of May 9, 2012, ch. 892, 2012 Tenn. Pub. Acts.

        The State argued that there was clear and convincing evidence that the Defendant
violated the implied consent law. Defense counsel responded by noting the first sentence
of section (a)(4)(A), “Except as required by subsection (f),” and continued that this statutory
language created an exception in subsection (f) to the implied consent law. However, as we
previously noted, this language was not added until after the Defendant committed the instant
crime.

        Defense counsel then stated specifically that “this was not a constitutional argument”
but one of statutory interpretation. Defense counsel continued, “Why would you need to sign
the form if they’re going to take it anyway. Therefore, why would you then be charged with
violation of Implied Consent in those instances when F applies. . . . It simply makes no sense
to interpret the statute that way.” He reiterated that this was “not a constitutional question”
but “a pure legal argument.”

        The court then noted the language in subsection (f), “The test shall be performed in
accordance with the procedure set forth in this section and shall be performed regardless of
whether the driver does or does not consent to the test[,]” and asked defense counsel for his
interpretation of this language. Defense counsel replied that this language was repeating the
first sentence of (a)(4)(A), stating that this was an exception to the consent requirement.
Defense counsel continued that the Defendant’s consent became irrelevant and that he should

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not have been asked for such consent under these circumstances. Defense counsel once
again stated that this was “purely a matter of statutory interpretation.”

         The State replied that the language pointed to by the court in subsection (f) “close[d]
off” the Defendant’s argument because it indicated the legislature’s desire for the accused
to still be asked to consent to the blood draw before mandatorily drawing that blood. The
State then noted the public policy behind the implied consent law and that, under the
Defendant’s reading, more egregious offenders to whom the mandatory provisions applied
would not be subject to the additional penalties of the implied consent law but first-time
offenders would be. The State also noted that information provided to the officer about prior
convictions leading to the mandatory blood draw could later be determined to be incorrect.
Finally, the State submitted that the “except” language of (a)(4)(A) meant that except in
certain circumstances, including the mandatory provision, blood shall not be drawn absent
consent.

        In its oral findings at the hearing, the trial judge found Officer Crowell’s testimony
that the Defendant in fact refused to give his consent to be more credible than the
Defendant’s statements to the contrary. By order filed April 22, 2013, the trial court found
that “the plain reading” of the implied consent law, Tennessee Code Annotated section 55-
10-406, “indicates that officers should first request that the person consent to the test but, if
the person refuses, the officers can then draw the blood mandatorily.” The court then
determined that the Defendant failed to comply with provisions of the implied consent law
by refusing his consent and upheld his conviction. This timely appealed followed.

                                         ANALYSIS

        On appeal, the Defendant challenges the trial court’s refusal to vacate his conviction
for violating the implied consent law, arguing that the mandatory provision of the implied
consent law is unconstitutional. Specifically, the Defendant, citing to Missouri v. McNeely,
-- U.S. --, 133 S.Ct. 1552 (2013), argues that the mandatory provision of section 55-10-406
is unconstitutional in violation of his Fourth Amendment Rights “as much as it requires
mandatory blood draws without law enforcement obtaining a search warrant.” He continues
that the consent form used in this case “is likewise unconstitutional in that it requires
mandatory blood draws” and that he “was provided misleading and erroneous information
as to his rights regarding implied consent.” As an alternative argument, the Defendant
contends that the implied consent law does not apply to him because his prior convictions
mandated that his blood be drawn. The State responds that the Defendant abandoned his
challenge to the constitutionality of the implied consent law’s mandatory provision at the trial
court level. The State continues that the provision is constitutional and that the mandatory
provision does not exclude those drivers from violating the implied consent law.

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        Because the Defendant’s constitutional claim is raised for the first time on appeal, the
issue is waived. See Tenn. R. App. P. 36(a); State v. Johnson, 970 S.W.2d 500, 508 (Tenn.
Crim. App. 1996) (“Issues raised for the first time on appeal are considered waived.”). In
his reply brief, the Defendant asserts that his constitutional issue is not waived because
McNeely was not decided until after the hearing. This does not change the fact that the
constitutional issue was not raised in the trial court. Thus, any application of McNeely to this
case would necessarily be retroactive via plain error review. See Tenn. R. App. P. 36(b)
(stating that “[w]hen necessary to do substantial justice, [this] court may consider an error
that has affected the substantial rights of a party at any time, even though the error was not
raised in the motion for a new trial or assigned as error on appeal”).

       In order for this court to find plain error, we consider the following five factors:

       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused did not waive the issue for tactical reasons; and
       (e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). Plain error cannot be found unless the record
establishes all of the elements of the Adkisson standard. Id. at 283.

        In McNeely, the Supreme Court, in a fractured opinion, held that the natural
dissipation of alcohol in the blood does not, standing alone, constitute an exigency sufficient
to justify a warrantless blood draw. 133 S. Ct. at 1563 (Sotomayor, J., majority). See also
Aviles v. State, 385 S.W.3d 110, 112 (Tex. App. 2012) (Texas Appeals Court holding that
a warrantless blood draw, which was conducted pursuant to a provision of Texas
Transportation Code mandating such test when a suspect had two, prior DWI convictions,
did not violate the Fourth Amendment), vacated, 134 S. Ct. 902 (2014) (United States
Supreme Court vacating for reconsideration in light of McNeely). However, McNeely was
not decided until April 17, 2013, almost a year after the Defendant’s arrest. We conclude
that no clear and unequivocal rule of law was breached at the time the Defendant’s blood was
taken. See Offie John Dostson v. Deputy Brian Welch, et al., No. 3-13-0166, 2013 WL
5863736, at *3 n.1 (M.D. Tenn. Oct. 30, 2013) (“However, the blood draw in this case
occurred on February 22, 2012, so McNeely is not relevant in determining whether or not a
constitutional right was clearly established at the time of this incident.”); see also State v.
Reese, 844 N.W.2d 396, 402-03 (Wis. Ct. App. 2014) (applying a good faith exception to
McNeely). Moreover, the remedy for such constitutional violation would be exclusion of the
blood test, not dismissal of the implied consent violation. See, e.g., Clayton Dean Reeder v.

                                              -6-
State, -- S.W.3d --, No. 06-13-00126-CR, 2014 WL 1862669, at *4 (Tex. App. Apr. 29,
2014) (holding that motion to suppress blood sample should have been granted and reversing
and remanding for a new trial). Thus, a substantial right of the accused has not been
adversely affected, and consideration of the error is not necessary to do substantial justice.
In this regard, we conclude that plain error does not exist.

      Additionally, the Defendant makes an alternative argument, arguing “that he has
complied with the [i]mplied [c]onsent [l]aw in that he submitted to the mandatory blood
draw.” The State replies that a clear reading of the statute reveals that the implied consent
law applies to all drivers regardless of whether a blood or breath test is performed under the
mandatory provisions. Again, we refer to the provisions in effect at the time of the offense.

        “The most basic principle of statutory construction is to ascertain and give effect to
the legislative intent without unduly restricting or expanding a statute’s coverage beyond its
intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citing State v. Sliger,
846 S.W.2d 262, 263 (Tenn. 1993)). Where the statute’s language is clear and unambiguous,
we derive the legislative intent from its plain and ordinary meaning. State v. Collins, 166
S.W.3d 721, 726 (Tenn. 2005) (citing State v. Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)).
If, however, “the parties derive different interpretations from the statutory language, an
ambiguity exists, and we must look to the entire statutory scheme in seeking to ascertain
legislative intent.” Owens, 908 S.W.2d at 926 (citing Lyons v. Rasar, 872 S.W.2d 895, 897
(Tenn. 1994)). In ascertaining the intent of the legislature, courts “‘may look to the language
of the statute, its subject matter, the object and reach of the statute, the wrong or evil which
it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.’”
Collins, 166 S.W.3d at 726 (quoting State v. Gilliland, 22 S.W.3d 266, 275 (Tenn. 2000)).
“Statutes ‘in pari materia’—those relating to the same subject or having a common
purpose—are to be construed together.” Owens, 908 S.W.2d at 926 (citing Lyons, 872
S.W.2d at 897). Furthermore, the rules of statutory construction direct courts not to “apply
a particular interpretation to a statute if that interpretation would yield an absurd result.”
State v. Sims, 45 S.W.3d 1, 11 (Tenn. 2001).

        “‘For the privilege of operating a vehicle on our highways, the driver consents to a test
to determine whether that privilege is, as a law enforcement officer suspects, being abused.’”
Collins, 166 S.W.3d at 727 (citing State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995)).
Tennessee’s implied consent law provides: “Any person who drives a motor vehicle in this
state is deemed to have given consent to a test or tests for the purpose of determining the
alcoholic content of that person’s blood, a test or tests for the purpose of determining the
drug content of the person’s blood, or both tests.” Tenn. Code Ann. § 55-10-406(a)(1).
Additionally, “[t]he statute delineating the implied consent law is not a criminal statute, but



                                               -7-
a statute which confers an administrative penalty.” State v. Pinchak, 277 S.W.3d 912, 915
(Tenn. Crim. App. 2005) (internal quotation omitted).

        As our supreme court has instructed, we construe section 55-10-406 together with all
of the driving under the influence statutes. Collins, 166 S.W.3d at 726 (citing Turner, 913
S.W.2d at 160). The purpose of these statutes is “to remove from the highway, prosecute,
and punish those who engage in the dangerous menace of driving under the influence.” Id.
(citing Turner, 913 S.W.2d at 160) (additional citations omitted). DUI statutes are “‘intended
to enable the drunken driver to be apprehended before he strikes.’” State v. Lawrence, 849
S.W.2d 761, 765 (Tenn. 1993) (quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla. Crim.
App. 1975)). “Thus, the purpose of the implied consent statute . . . is to advance the State’s
objective of keeping intoxicated drivers off the roadways.” Collins, 166 S.W.3d at 727.

       Our court has stated that, “[o]nce a defendant consents to testing and allows his or her
blood to be drawn, the purpose of the implied consent statute has been satisfied, even if the
defendant later revokes consent for chemical analysis.” State v. Michael Shayne Cochran,
No. M2006-02175-CCA-R3-CD, 2007 WL 2907281, at *3 (Tenn. Crim. App. June 19,
2007). The same is true when, as in this case, the test is compelled: the purpose of the statue
was satisfied, i.e, the Defendant’s blood was drawn for a determination of his intoxication
level. Additionally, a similar penalty, suspension of the Defendant’s driver’s license, would
have occurred in this case if the Defendant was ultimately convicted of the DUI charge. See
Tenn. Code Ann. § 55-10-404 (governing suspension of a convicted DUI defendant’s
driver’s license). Therefore, we agree with the Defendant that he did not violate the implied
consent law.

                                       CONCLUSION

       Based upon the foregoing, the order of the trial court is reversed, and the Defendant’s
violation of the implied consent law is dismissed.




                                                    ________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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