             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                              July 2000 Session

                 STATE OF TENNESSEE v. MICHAEL A. JANOSKY

                   Direct Appeal from the Criminal Court for Davidson County
                             No. 99-T-119, Cheryl Blackburn, Judge



                     No. M1999-02574-CCA-R3-CD - Filed September 29, 2000


Michael Janosky appeals from his conviction of driving under the influence. In this direct appeal,
he challenges his conviction based upon (1) erroneous admission of breath alcohol test results which
he contends were involuntarily obtained and (2) the results of the breath test were not administered
in accordance with the requirements of State v. Sensing. As to issue (1), we hold that, absent a
motorist’s express refusal, consent to a breath test is deemed voluntary as a matter of law. With
reference to issue (2), the improper administration of the breath test, we find this issue waived
because it was not included in the appellant’s motion for new trial. Tenn. R. App. P. 3(e).
Accordingly, we affirm the judgment entered by the trial court.


                 Tenn. R. App. P. 3; Judgment of the Criminal Court is affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE , J., joined
and THOMAS T. WOODALL , J. filed a separate concurring.

V. Michael Fox, Nashville, Tennessee, for the appellant, Michael A. Janosky.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E.
Clements, Jr., Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General,
and Sean K. Allen, Assistant District Attorney General, for the appellee, State of Tennessee.


                                                    OPINION

        The appellant, Michael A. Janosky, was found guilty by a Davidson County jury of driving
under the influence, first offense.1 The trial court imposed a sentence of eleven months twenty nine


         1
          The appellan t was charged under alternative counts of driving under the influence and driving under the
influence while having a blood alcohol conce ntration of .10% or m ore. The jury foun d the app ellant guilty o f both
                                                                                                   (continued...)
days, with all of the sentence suspended except for ten days. In this appeal as of right, the appellant
asserts that the results of his breath tests should have been suppressed.

         After review, we find no error requiring reversal. The judgment of the trial court is affirmed.


                                                    Background

        At approximately 11:00 pm, on June 6, 1998, Metro Police Officer Clinton Gilliland, after
entering a gas station, received a complaint of an intoxicated driver. He related that his attention was
directed toward the appellant and a vehicle driven by the appellant. Officer Gilliland began to follow
the vehicle and observed the vehicle making wide turns. At a stop light, he pulled alongside the
appellant’s vehicle and asked him, “Had [sic] you been drinking?” The appellant looked at the
officer, rolled his head, and took off. Officer Gilliland observed that the appellant’s motor skills
“appeared somewhat concentrated, not very alert, so to speak. He appeared to be intoxicated . . . .”
At this point, Officer Gilliland activated his blue lights and “pulled [the appellant] over.”

           Upon approaching the appellant, Officer Gilliland “could smell a very extreme odor of an
alcoholic beverage about. . . .” He asked the appellant to exit the vehicle. As the appellant was
getting out of his car, Officer Gilliland noticed that the appellant “used his right foot to overstep his
left as if he had to support himself from falling.” The appellant’s “eyes were very watery and blood
shot” and his speech was “unusually slurred.” Based upon his physical observations of the appellant,
Officer Gilliland asked the appellant to submit to field sobriety tests. Officer Gilliland then
administered the “walk and turn” test which the appellant failed to successfully complete. During
the test, the appellant admitted that he could not complete the test because his balance was poor, he
added that “I’ve been drinking, or I drank two liters of beer at Market Street Brewery.” Officer
Gilliland then administered the “one-legged stand” test. The appellant could not complete this task
either. The officer concluded that, “[The appellant] wasn’t just intoxicated or under the influence.
He was knee-walking, sloppy drunk. This wasn’t a borderline case. He was, he was completely
intoxicated.”

        At this point, the appellant was arrested for driving under the influence, handcuffed, and
placed in the back of the cruiser. Officer Gilliland read the appellant the Implied Consent Law. The
appellant agreed to submit to the breath test. Officer Gilliland then called dispatch requesting an
alcohol testing operator at the scene. Officer Jeb Johnston, the alcohol testing operator on duty,
responded. Officer Johnston is assigned to the DUI Enforcement unit. He testified that he was
certified to administer the test by the Tennessee Bureau of Investigation. The machine used on this
occasion was an Intoxilyzer 1400. This particular unit had been calibrated by the TBI on May 8,
1998, and had been checked by Metro officers on June 6, prior to Officer Johnston’s shift.




(...continued)
offenses and the trial court properly m erged the con victions.

                                                           -2-
        Although the appellant had previously agreed to take the breathalyzer test, before Officer
Johnson began the actual test, the appellant was asked again if he would submit to the test. The
appellant refused the test. Officer Johnston explained that he asked the appellant if he understood
the implied consent law and the appellant did not indicate that he did not. Johnston then advised the
appellant that “if he wants to go straight to jail, refuse the breath test, and be charged with Implied
Consent and DUI.”2 The appellant “blurted out that he had had two shots. . . .” The appellant then
consented to the test. The appellant was placed in the rear seat of Johnston’s patrol car and Officer
Johnston, seated in the front seat, observed the appellant for the required twenty minute period.
During the observation period, Officer Johnston testified that the appellant did not “regurgitate at
any time,” did not “put any foreign objects in his mouth,” and did not “consume anything.”
Although he admitted that he did not physically examine the appellant’s mouth, one “can usually
tell when somebody has some candy or gum in their mouth. They are usually chewing or sucking
on it.” Additionally, Officer Johnston related that the appellant was “very talkative, so [he] would
have saw if he had something . . .in his mouth.” Officer Johnston then administered the test, the
results of which revealed that the appellant had a blood alcohol level of .187 percent.

         The twenty-three year old appellant testified at trial that he was not advised of the Implied
Consent warning by either Officer Johnston or Officer Gilliland. He stated that he was asked if he
“wanted to do a Breathalyzer test” by Officer Johnston. The appellant refused. Johnston then
informed him that he could “either take it or . . . go to jail.” The appellant interpreted this as “[his]
only way out of the [patrol] car at that moment was to take the breath test, and since [he] was already
late for work, and had to be there, that I probably should take the test.” He further advised the court,
“It was losing my job or going to jail, you know, in the context of going to jail.”3

         Based upon this evidence, the appellant was convicted of driving under the influence.


                                                       Analysis

       Prior to trial, the appellant filed a motion in limine to have the results of his breath test be
suppressed for failure to comply with the technical requirements of State v. Sensing, 843 S.W.2d 412
(Tenn. 1992).4 A hearing on the motion was held on September 13, 1998. Officer Johnston and

         2
           Officer Johnston explained that the appellant was already under arrest for DUI and was not going to be
released fro m the sce ne regar dless of his c onsent to the breath test.
         3
          The appellant, in response to questioning by the court, p rovided that he had a bachelo r’s degree in electron ic
engineering a nd that he wa s employed at Service Merc handise in com puter operation s.
         4
           In Sensing, 843 S.W.2d at 416, our sup reme co urt ruled th at the adm issibility of a breath test depended upon
the testing officer's ability to testify as follows:

(1) that the tests were performed in accordance with the standards and operating proced ure prom ulgated b y the fore nsic
services division of the Tennessee Bureau of Investigation;
                                                                                                          (continu ed...)

                                                           -3-
the appellant provided relevant testimony. At the conclusion of the proof, defense counsel assented
to the trial court’s conclusion that the issue before the court was the “voluntariness . . . on the
Implied Consent.”

         Based upon the proof at the hearing, the trial court made the following findings of fact:
         . . .I’ve heard the testimony from Mr. Janosky and he said that his choice was
         between going to jail and taking the test because he didn’t want to lose his job;
         however, the facts are pretty clear. Mr. Janosky was already in custody. He is [a]
         man who is 23 years old, has a BA degree, on his way to work, I might add, and he
         did choose to take the test. There is nothing in this that would lead me to think this
         wasn’t voluntary. He might not have liked the choices he had, but that doesn’t mean
         that the police officers did anything to overcome his will, which is the crucial issue,
         so motion denied in involuntariness.


        The appellant contests the ruling of the trial court arguing (1) that the State failed to satisfy
the requirements of State v. Sensing in that the officer failed to “physically insure that Defendant
Janosky’s mouth was clear of all foreign material, which may have an effect on the breath test
results” and (2) that the breath test was procured involuntarily. Initially, we note that the appellant
has waived any challenge to the Sensing requirements. Although such challenge was made in the
appellant’s motion in limine, the appellant failed to present the issue to the trial court at the hearing
on the motion, see Tenn. R. App. P. 36(a), and failed to preserve this issue for appellate review by
neglecting to raise this issue in his motion for new trial. Tenn. R. App. P. 3(e). Accordingly, our
review is limited to the voluntariness of the appellant’s consent to the breath test.


                                      Voluntariness of Motorist’s Consent



         4
           (...continued)
(2) that he was pro perly certified in accord ance with those standards;

(3) that the evidentiary breath testing instrument used was certified by the forensic services division, was tested regularly
for accuracy and was working properly when the breath test was performed;

(4) that the m otorist was observe d for the re quisite 20 minutes prior to the test, and during this period, he did not have
foreign matter in his mouth, did not consume any alcoholic beverage, smoke, or regurgitate;

(5) that he followed the prescribed operational procedure; and

(6) that the p rintout reco rd offered in eviden ce was th e result of the test given to the perso n tested.

The trial court has the du ty to determ ine whe ther by a p repond erance o f the evide nce the S tate has estab lished the six
prerequ isites for adm issibility. State v. Edison, 9 S.W.3 d 75, 76 (Tenn .1999).



                                                              -4-
        Where the appellant claims that he has been aggrieved by a potentially unlawful search or
seizure, the proper remedy is to file a motion to suppress. See DAVID L. RAYBIN , Tennessee
Criminal Practice and Procedure § 18.6 (1984). Because the trial court considered the issue on the
merits, we have chosen to treat the pretrial hearing as if the appellant had utilized the proper
procedure. See State v. Johnson, 673 S.W.2d 877, 883 (Tenn. Crim. App. 1984).

        In reviewing a denial of a motion to suppress, this court looks to the facts adduced at the
suppression hearing which are most favorable to the State as the prevailing party. State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). In
considering the evidence presented at the hearing, this court extends great deference to the fact-
finding of the suppression hearing judge with respect to weighing credibility, determining facts, and
resolving conflicts in the evidence. Daniel, 12 S.W.3d at 423. Indeed, these findings will be upheld
unless the evidence preponderates otherwise. Id. Furthermore, this court may consider the entire
record, including the evidence submitted both at the suppression hearing and at trial, in evaluating
the correctness of the trial court's ruling. State v. Henning, 975 S.W.2d 290, 297 (Tenn.1998).
Although deference is given to the trial court’s findings of fact, this court conducts its own appraisal
of the constitutional questions presented by reviewing the law and applying it to the specific facts
of the particular case. Id. (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997); Beare v.
Tennessee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)).

        The administration of a breath test for the detection of a person’s blood alcohol level is a
seizure of the person and a search for evidence within the purview of the Fourth Amendment of the
United States Constitution. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966). The
analysis of any warrantless search must begin with the proposition that such searches are per se
unreasonable under the Fourth Amendment to the United States Constitution and Article I, Section
7 of the Tennessee Constitution, subject only to a few well-delineated exceptions. See Coolidge
v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32 (1971); Katz v. United States, 389
U.S. 347, 357, 88 S.Ct. 507, 514 (1967); State v. Tyler, 598 S.W.2d 798, 801
(Tenn.Crim.App.1980). One such exception to the warrant requirement includes exigent
circumstances. See generally Schmerber v. California, 384 U.S. at 757, 86 S.Ct. at 1826. Exigent
circumstances arise when authorities have reason to believe that evidence is in danger of being
destroyed or removed. See State v. Jennette, 706 S.W.2d 614, 617 (Tenn. 1986) (reasonable
likelihood that evidence may be destroyed if officers have to interrupt investigation to obtain
warrant). Thus, a warrantless test of an individual’s bodily substances does not violate any
constitutional right so long as the search was supported by probable cause, the evidence was of an
evanescent nature, and the means and procedures employed in taking the substance were reasonable.
See Schmerber v California, 384 U.S. at 770-772, 86 S.Ct. at 1835-1837 (warrantless seizure of
blood not prohibited because evidence may be lost if not immediately seized); see also People v.
Ayres, 591 N.E.2d 931 (Ill. App. 1992). Based upon the fact that evidence of blood alcohol content
begins to diminish shortly after drinking stops, a compulsory breath or blood test, taken with or
without the consent of the donor, falls within the exigent circumstances exception to the warrant
requirement. Schmerber v. California, 384 U.S. at 770, 86 S.Ct. at 1836; see generally State v.
Krantz, 848 P.2d 296, 299 (Ariz. App. 1993); State v. Taylor, 531 A.2d 157, 160 (Conn. App. 1987);


                                                  -5-
State v. Nickerson, 973 P.2d 758, 762 (Idaho 1999); Village of Algonquin v. Ford, 495 N.E.2d 595,
596 (Ill. App. 1986).

         In addition to the exigent circumstances established by the nature of the evidence in cases
involving intoxicated motorists, the statutorily created implied consent of the motorist permits the
warrantless search of the motorist’s breath or blood. See generally Schneckloth v. Bustamonte, 412
U.S. 218, 219, 93 S.Ct. 2041, 2043 (1973) (voluntary consent exception to warrant requirement).
Under the express provisions of Tenn. Code Ann. § 55-10-406 (1998), any person who operates a
motor vehicle on Tennessee’s highways is statutorily deemed to have consented to an evidentiary
test for blood alcohol concentration.5 Thereby, anyone who exercises the privilege of operating a
motor vehicle in this state has consented in advance to submit to a breath alcohol test. Indeed, by
virtue of the provisions of Tenn. Code Ann. §55-10-406 (a)(1), our legislature has declared that
consent of all motorists is implied; therefore, it is unnecessary for law enforcement officers to obtain
the voluntary consent of an individual motorist before administering a breath test for alcohol



          5
              Tenn. C ode An n. § 55-1 0-406 provide s, in pertinen t part:

          (a)(1) Any person who drives any motor vehicle in the state is deemed to have given consent to a test for the
purpose of determining the alcoholic or drug content of that person 's blood; provided, that such test is administered at
the direction of a law en forcem ent officer h aving rea sonable ground s to believe such person was driving while under
the influen ce of an in toxicant o r drug, as d efined in § 55-10- 405. . .

          (2) Any law enforcement officer w ho requ ests that the dr iver of a m otor veh icle submit to a test pursua nt to
this section for the purp ose of de terminin g the alco holic or d rug con tent of the d river's bloo d shall, prior to conducting
such test, advise the driver that refusal to submit to such test w ill result in the suspension of the d river's operator's license
by the court. The court having jurisdiction of the offense for which such driver was placed under arrest shall not have
the authority to suspend the license of a driver who refused to submit to the test if such driver was not advised of the
conseq uences o f such a ref usal.

          (3) If such person having been placed under arrest and thereafter having been requested by a law enforcement
officer to submit to such test and advised of the consequences for refusin g to do so, refuses to submit, the test shall not
be given and such person shall be charged with violating this subsection. The determination as to whether a driver
violated the provisions of this subsection shall be made at the same time and by the same court as the one disposing of
the offen se for wh ich such d river was placed u nder arre st. . . .

         (4) Any person who violates the provisions of this section by refusing to subm it to the test purs uant to
subdivision (3) shall be charged by a separate warrant or citation that does not include any charge of violating §
55-10-401 that may arise from the same occurrence.

         (b) Any pers on who is unconscious as a result of an accident or is unconscious at the time of arrest or
apprehension or otherwise in a condition rendering that person incapable of refusal, shall be subjected to the test as
provided for by §§ 55-10-405--55-10-412, but the results thereof shall not be used in ev idence against that person in
any court or before any regulatory body without the consent of the person so tested. Refusal of release of the evidence
so obtained will result in the suspension of that person's driver license, thus such refusal of consent shall give such
person the same rights of hearing and determinations as provided for conscious and capable persons in this section.

          ...

                                                               -6-
concentration level. The purpose behind the implied consent law is to facilitate the gathering of
evidence against intoxicated drivers. Thus, the State may compel submission to the testing if the
officer has reasonable grounds to believe that the motorist is intoxicated. State v. Bullington, 702
S.W.2d 580, 583 (Tenn. Crim. App. 1985) (citing South Dakota v. Neville, 459 U.S. 553, 103 S.Ct.
916 (1983); Schmerber v. California, 384 U.S. at 757, 86 S.Ct. at 1826).

        A motorist’s right to refuse to submit to a breath test under Tennessee’s implied consent law
is not a constitutional right. Rather, the State of Tennessee, through its enactment of Tenn. Code
Ann. §55-10-406(a)(2) and (a)(3), has adopted a policy position prohibiting law enforcement officers
from administering a breath or blood alcohol test against the motorist’s will. Instead, in an effort
to avoid potentially violent confrontations between private citizens and law enforcement officers,
the state has elected to permit the motorist to refuse the test. See South Dakota v. Neville, 459 U.S.
at 559-560, 103 S.Ct. at 920. See, e.g., Krantz, 848 P.2d at 299; Bush v. Bright, 264 Cal. App. 2d
788, 789 (1968); Taylor, 531 A.2d at 160. The right to refuse is not absolute; rather, the right to
refuse will result in suspension of the motorist’s driver’s operator’s license, assuming appropriate
procedural protections are provided. See Tenn. Code Ann. § 55-10-406(b). See also South Dakota
v. Neville, 459 U.S. at 560, 103 S.Ct. at 920; Mackey v. Montrym, 443 U.S. 1, 17-19, 99 S.Ct.
2612, 2620-21 (1979). By striking this balance, the statute motivates drivers to take the test, but
does so without resorting to physical compulsion. See State v. Hitchens, 294 N.W.2d 686, 688
(Iowa 1980).

         In the present case, the appellant, by choosing to engage in a regulated activity, that of
driving a motor vehicle, subjected himself to the provisions of Tenn. Code Ann. § 55-10-406. The
appellant was lawfully arrested for driving under the influence. His driving behavior, his demeanor,
and his failure to complete the field sobriety tests formed the factual bases for the officer’s inference
that the breath test was likely to reveal evidence of the offense. The appellant presented no evidence
of his express refusal to submit to the breath test. He simply asserts that his submission to the test
was involuntary. The argument that consent to a breath alcohol test was involuntary or coerced is
misplaced. Consent is unnecessary as consent has already been obtained by the act of driving the
motor vehicle. Our law is clear that the only time “the test shall not be given” is when the motorist
“refuses to submit” to the test. To hold otherwise would permit a motorist to submit to the test and,
after obtaining an adverse test result, challenge the introduction of the BAC test results in the
prosecution of the DUI charge as well as precluding citation of the defendant for non-compliance
with the implied consent law. The Implied Consent Law permits introduction of either the BAC
results or the suspension of the motorist’s driver’s license. See generally Tenn. Code Ann. § 55-10-
406. The appellant in the present case seeks to avoid both consequences. Under our implied consent
law, he cannot do so.

         Additionally, neither the results of breath alcohol tests nor a motorist’s refusal to submit to
the test are protected by the Fifth Amendment. See State v. Frasier, 914 S.W.2d 467, 471-72 (Tenn.
1996). The results of breath alcohol tests constitute physical evidence and are not afforded the
procedural protections encompassed by the Miranda warnings. See Schmerber v. California, 384
U.S. at 757, 86 S.Ct. at 1826; see also Frasier, 914 S.W.2d at 471; State v. Huskins, 989 S.W.2d 735,
737 (Tenn. Crim. App. 1998), perm. to appeal denied, (Tenn. 1999). Indeed, the giving of a breath

                                                  -7-
or blood sample is nontestimonial in nature and the Fifth Amendment right against self-incrimination
is not implicated Schmerber, at 757, 86 S.Ct. at 1826; see also State v. Lord, 513 S.E.2d 25, 26
(Ga. App. 1999); Ford, 495 N.E.2d at 596; Ewerokeh v. State, 835 S.W.2d 796, 797 (Tex. Ct. App.
1992). Thus, the appellant’s argument that he had a constitutional right not to incriminate himself
by submitting to the breath test is without merit.


                                             Conclusion

        After review of the issue presently before this court, we conclude that the express consent
of the motorist is not a prerequisite for the admission of a breath alcohol test into evidence in a DUI
prosecution. Explicitly, we hold that the voluntariness of the motorist’s consent at the time of the
testing is of no consequence because the motorist has impliedly consented as a matter of law when
he or she elects to operate a motor vehicle upon the highways of this state. Cf. King v. State, 598
S.W.2d 834, 835 (Tenn. Crim. App. 1980) (statute gives rise to implied consent). But see State v.
Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986) (valid consent necessary for blood test).
Rather, it is the motorist’s express refusal, provided by legislature largesse, and not the
voluntariness of the individual motorist’s submission to the test, as required by the Fourth
Amendment, which governs the inadmissibility of the test results. Under the facts of the present
case, we conclude that the appellant did not refuse the breath test and, therefore, the breath test was
lawfully obtained.

       For the foregoing reasons, the judgment of conviction is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -8-
