Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test.

by Lee Davis

Intoximeter

In State of Tennessee v. Gail Lynn Padgett, a Knox County woman was convicted of driving under the influence of an intoxicant (her fourth conviction), driving on a revoked license and two counts of disorderly conduct. The trial court sentenced Padgett to one year in jail with 150 days served in conferment and the rest on probation. Her license was revoked for five years and she was required to attend DUI school. 

Padgett has appealed, arguing that the evidence is insufficient to sustain a conviction, the trial court erred in denying her Motion to Dismiss for the State’s failure to preserve evidence and for denying her Motion to Suppress evidence of her actions to police due to lack of the probable cause necessary to have arrested her in the first place. The State Court of Criminal Appeals rejected Padgett’s claims and affirmed the ruling of the trial court.

Padgett first filed a Motion to Suppress arguing that video evidence attained by the arresting officer’s police car should be suppressed due to the lack of probable cause in arresting her. The facts showed the following: At a little after 8 in the morning on May 28, 2008, Officer James Wilson got a call about an accident. He arrived and testified that before exiting his vehicle he turned on the microphone and video recorder in his police cruiser. 

While speaking to those at the scene, Wilson hit a car passing by her driveway. Padgett started yelling that she was not in the wrong. Wilson allegedly observed Padgett stumbling and detected a very strong odor of alcohol on her breath. Based on this behavior he placed her under arrest. Because of Padgett’s erratic behavior he was unable to perform any field sobriety tests. Wilson later swore out a warrant for her arrest noting her slurred speech, glassy bloodshot eyes and her unsteadiness while walking. Wilson admits to not listing the smell of alcohol and explained that he must have just forgotten to write it down. The trial court agreed that Officer Wilson had probable cause to arrest Padgett for disorderly conduct, not DUI, and denied Padgett’s Motion to Suppress.

Padgett then filed a Motion to Dismiss due to lack of evidence. No blood alcohol test was ever performed nor was a Breathalyzer test administered. Wilson claims this was because of Padgett’s wild behavior following her arrest. The trial court again denied Padgett’s Motion and decided to proceed. 

At trial much the same evidence was discussed. The video and audio recordings were also admitted into evidence and seemed to support much of what Officer Wilson had testified to. 

On appeal, Padgett contends that because no field sobriety tests were performed there can be no evidence to support a DUI conviction. The State counters by saying that other evidence supports such a conviction. The Court of Criminal Appeals agreed with the state, citing the three witnesses who testified to Padgett’s appearance and behavior that day. Such evidence is adequate for a reasonable trier of fact to conclude that she was under the influence and a field sobriety test is not required to support a DUI conviction.

With regard to Padgett’s Motion to Dismiss, the Court of Criminal Appeals says that there is no duty by an officer to administer a blood alcohol test. The only requirement is that if such a test is not administered, then that failure shall be “admissible in evidence in a criminal proceeding.” T.C.A. Section 55-10-407(b). Here that hurdle was cleared as the jury was fully informed during both direct and cross-examination that Wilson did not request that Padgett submit to a blood alcohol test. 

Turning to the Motion to Suppress, the Court says that Wilson had sufficient probable cause to justify an arrest for disorderly conduct and that Wilson did not have to explain to Padgett that she was being arrested for such a charge in order to make the arrest valid. The Court went further in saying that Wilson did have probable cause to arrest Padgett for DUI. Under T.C.A. Section 40-7-103(a)(6), Wilson personally observed Padgett’s behavior and actions and believed she was intoxicated, thus granting him the probable cause necessary to arrest Padgett for DUI.

For the full opinion, click here.

Earlier:

Shocking Allegations Concerning Behavior of Knoxville Judge in Christian/Newsom Slaying

New Tennessee Campus Crime Report Released

DUI forced blood draw expands in Tennessee

A new practice in DUI enforcement is now law.


After January 1, 2012 a forced blood draw will be the law for every DUI stop in three situations in Tennessee:  1. If the driver has ever been convicted for a previous DUI (this is new); 2. If there is a passenger in the car under 16 years old (this is new); and, 3. If there has been an accident causing injury (this has been the law for some time). In short, no consent is needed in any of the three situations listed above for law enforcement to take blood or a breath sample (officer's choice as to method) from a motorist suspected of DUI.

photo credit/yakkhapadma

The exact language of the statue says: 


(1) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed a violation 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 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; or

(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 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.

(3) 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 § 5-10-401 and a passenger in the motor vehicle is a child under sixteen (16) years of age, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the 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.

DUI Breath Test Results Challenged

Intoxilyzer 5000

A Minnesota lawyer has challenged results to Intoxilyzer DUI breath test results. Attorney Ryan Pacyga contests the results of more than 160 DUI tests claiming they are in error. In Tennessee law enforcement uses similar equipment, the Intoxilyzer 5000, as in Minnesota. Timothy Williams reports on this issue in  the New York Times.

Q How long do you believe there has been a problem with the Intoxilyzer, and what made people start looking into it?
A The suspicion is that this probably started a long time ago. The more air you blow into the machine, the higher the alcohol rate it registers. You have officers saying, “Blow harder. Blow harder,” as people are blowing into these machines. I’ve seen it happen time and again. In some cases, if you didn’t blow enough air into a machine you get what is called a “deficient sample,” which is qualified as a refusal. A refusal takes a harsher punishment in Minnesota.” [Note: The state and the manufacturer dispute that blowing harder is linked to higher readings.] I’ve handled over 1,000 D.W.I.’s in the last seven years and always look at the breath volume and compare the two samples [tests consist of two breaths into the Intoxilyzer]. I’ve seen this. I don’t know whether it could be tested or if it’s been tested. It’s kind of anecdotal. The other thing is this machine uses a control — a simulated solution control that is usually between a .078 and .082 when it is put into the machine. When the machine does the “control” and “replicate,” I often see that, despite knowing the control is a given value, the machine measures it higher, or lower. The point is that it knows what the control is, and it still isn’t measuring it right. The state says it’s within an acceptable limit. It may be acceptable to the state, but if you are a defendant, it’s not so cool.

Q How many cases are involved here?

A Over all, tens of thousands of tests probably over five or six years. A lot of lawyers never challenged the tests. We’re probably down to around 4,000 now. I’ve got over 160 people myself. My understanding is that is the second largest group in the state.

Q Why is this issue important?

A In some form or other, everyone involved in this is fighting for their lives. Someone who drives as part of a job — a truck driver, someone who makes deliveries, a traveling salesman — they’re going to lose that job. They’ve had training for their jobs and that’s all the training they have, and especially in this economy, their prospects for employment are not good. There are mechanics, they have to test-drive cars. They’re out of work. There are also background checks for white-collar workers. There’s not a lot of tolerance for a D.W.I. A lot of people are getting screened out because employers think if you have a D.W.I., you must be an alcoholic.

My take on the Intoxilyzer 5000 in TN. Tennessee chose not to use a newer version of the Intoxilyzer, the Intoxilyzer 8000, after reviewing the machine.  Both the Intoxilyzer 5000 and 8000 have faced a number of legal challenges in several states: Ohio, Florida and now Minnesota.  It is my understanding that law enforcement in Tennessee uses the Intoxilyzer 5000 exclusively. Currently results from the Intoxilyzer 5000 are admissible in Tennessee Courts.