        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 19, 2015 Session

         STATE OF TENNESSEE v. MICAH ALEXANDER CATES

                 Appeal from the Criminal Court for Carter County
                    No. 21779     Jon Kerry Blackwood, Judge


             No. E2014-01322-CCA-R3-CD – Filed September 28, 2015


The Defendant-Appellant, Micah Cates, was convicted by a Carter County jury of
vehicular homicide by intoxication. Prior to trial, the Defendant moved the trial court to
suppress evidence obtained from a warrantless blood draw. The trial court denied the
motion and the case proceeded to trial where the State introduced evidence of the
Defendant‟s blood alcohol content. Following the Defendant‟s conviction, the trial court
imposed the minimum sentence of eight years with a release eligibility of 30 percent.
The trial court denied alternative sentencing and ordered that the Defendant serve his
sentence in confinement. On appeal, the Defendant argues that (1) the trial court erred in
denying his motion to suppress evidence obtained from his warrantless blood draw, and
(2) the trial court abused its discretion in sentencing the Defendant. Upon our review, we
conclude that no exception to the warrant requirement justified the warrantless blood
draw in this case. Accordingly, we reverse the trial court‟s denial of the Defendant‟s
motion to suppress evidence obtained from the blood draw and vacate his conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

CAMILLE R. MCMULLEN, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and D. KELLY THOMAS, J., joined.

Steven R. Finney, Johnson City, Tennessee, for the Appellant, Micah Alexander Cates.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Beldsoe, Assistant
Attorney General; Tony Clark, District Attorney General; and Janet Hardin, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

      On August 14, 2012, the Defendant-Appellant was involved in a single-car
accident on Milligan Highway in Elizabethton, Tennessee. The Defendant was injured,
and his passenger, Tanner Perkins, was killed. Subsequently, the Defendant was indicted
by the Carter County Grand Jury of vehicular homicide by intoxication, vehicular
homicide by conduct creating a substantial risk of death, and driving under the influence
(“DUI”) with a blood-alcohol concentration of .08 percent or more, in relation to this
accident. Prior to trial, the Defendant moved to suppress evidence obtained from the
warrantless blood draw conducted while the Defendant was at the hospital receiving
treatment for his injuries. Also prior to trial, upon motion of the State, the trial court
dismissed the counts charging vehicular homicide by conduct creating a substantial risk
of death and DUI.

                                    SUPPRESSION HEARING

       Captain Greg Workman1 of the Elizabethton Police Department (“EPD”) testified
that on August 14, 2012, he received a dispatch at 1:47 a.m. to a single-car accident on
Milligan Highway. He arrived at the scene within five minutes of the dispatch and found
a white BMW “intertwined with a metal pole in the Milligan Grocery parking lot” and an
individual, later determined to be the Defendant, lying outside of the driver‟s side door.
Captain Workman observed another individual in the passenger seat of the car and
attempted to make contact with the Defendant to determine the number of occupants in
the car and their identities. The Defendant appeared to have an open fracture to his left
leg and was “obviously in pain” and “confused.” He was unable to recall the number of
occupants in the car or the identity of the individual in the passenger seat. While
assessing the scene, Captain Workman smelled an “odor of alcohol, but could[ not]
determine whether or not it was coming from [the Defendant] or from the vehicle.”

       Because of his injuries, the Defendant was soon transported by ambulance to the
Johnson City Medical Center (“JCMC”). Captain Workman testified that he “knew it
was a possibility” that the Defendant was under the influence of alcohol at the time of the
accident, and based on the totality of the circumstances, he believed that “exigent
circumstances existed and [the police] needed to draw blood as soon as [the Defendant]
got to the hospital.” He explained, “[There was] a high impact collision to a fixed
structure[,] . . . [and the Defendant] was lying in the roadway with an open fracture to his
leg. We [were] concerned not only about the injuries that we observed externally, but
[also] the internal injuries that he could have[.]” He directed an officer to follow the
ambulance and obtain a blood sample from the Defendant.




        1
           At the time of the suppression hearing, Captain Workman had been promoted to Chief of Police
at the Elizabethton Police Department. For clarity, we will use the title of “Captain,” which he held at the
time of the accident.
                                                    -2-
       On cross-examination, Captain Workman testified that he observed the Defendant
for approximately 45 seconds to one minute while on the scene. He also stated that he
had investigated three mandatory blood draw cases and had never sought a search
warrant to draw the suspect‟s blood. He agreed, however, that he had drafted
approximately 40 search warrants in his career and had taken 20 to 25 search warrants to
a nearby judge‟s house “at all hours of the night.” He further agreed that two judges
lived within a few miles of the accident scene and were willing to receive officers at any
hour of the night to sign search warrants. He acknowledged that the EPD has search
warrant templates and that search warrants can be drafted based on knowledge received
from other officers. He also acknowledged that the officers on the scene had cell phones
and radios but stated that there were no officers on duty at the police station at the time of
the accident. He conceded that four of the 11 officers that responded to the scene had
experience drafting search warrants.

       On redirect examination, Captain Workman testified that to get a search warrant
that evening, an officer would have had to return to the police station, draft a search
warrant, contact the district attorney to have the warrant reviewed, and then contact a
judge to have the warrant signed. He reiterated that “time was [of] the essence on this
case” and stated that he needed all of the responding officers on the scene. When asked
what exigencies existed in this case, Captain Workman stated,

       When I viewed the [Defendant] I viewed the injury to his leg. I knew that
       he was going to be transported to the hospital hot, which [means]
       emergency. I knew that he was going to be going into surgery and I didn‟t
       want anything else to be put into his system prior to us drawing that blood.

He agreed that he was also concerned about the natural dissipation of alcohol from the
Defendant‟s system and the time it would take to get a search warrant before drawing his
blood. He added that “if the accident [were] to happen tonight I would have done
nothing different than what I did that particular night . . . [because] I felt exigent
circumstances existed[.]”

       EPD Officer Ryan Brackett arrived on the scene at approximately 2:50 a.m. where
he observed a single-car accident that occurred when the car “failed to negotiate [a] curve
and struck a pole” in the parking lot of Milligan Grocery. He described the accident as
“horrific” and recalled that the motor was thrown approximately 40 feet from the car and
the pole “intru[ded] into the vehicle” on the passenger‟s side to the rear seat. When
Officer Brackett arrived on the scene, which was over an hour after the initial dispatch,
the Defendant had already been transported to the hospital and the victim had been
extricated from the car. On cross-examination, Officer Brackett testified that he had
drafted search warrants in the past but had never drafted a search warrant for a mandatory
                                             -3-
blood draw. He agreed that the EPD had a “form” or “outline” for search warrants
available and that he had a cell phone and radio in his car that evening. He also agreed
that 11 officers responded to the scene that evening and that two officers were sent to get
blood samples from the Defendant and the victim, leaving nine officers on the scene to
investigate.

        EPD Officer Matt Sexton, who arrived within 10 minutes of the dispatch,
described the scene as “a mess.” He explained that there was “a large field of debris” and
“parts of the vehicle [that] were thrown quite a distance from the actual crash scene.” In
addition to the responding police officers, the fire department and emergency medical
services were also on the scene. Captain Workman directed Officer Sexton to follow the
ambulance transporting the Defendant to the hospital to obtain a blood sample from him.
He recalled that the Defendant was transported “hot,” meaning that the ambulance used
its emergency lights and audible signals during transport, and agreed that there was a
“high sense of emergency and urgency.” At the hospital, Officer Sexton directed a nurse
to collect a sample of the Defendant‟s blood. He observed the Defendant lying on a
gurney at the hospital but did not make contact with him and could not tell whether the
Defendant was conscious or unconscious. Officer Sexton testified that the Defendant‟s
blood was drawn at 2:30 a.m. On cross-examination, Officer Sexton testified that he was
at the hospital approximately 20 minutes.

       Lindsey Jones, a registered nurse-anesthetist working at JCMC on August 14,
2012, put the Defendant under anesthesia for surgery at approximately 7 a.m. that day.
She testified that when she met the Defendant in the surgery holding unit, his chart
indicated that he had been administered Versed, a benzodiazepine drug that causes
amnesia. His chart also indicated that he was administered Zofran, Dilaudid, Ancef, and
Gentamicin intravenously. In order to put the Defendant to sleep, Jones administered
Propofol, Lidocaine, Syccinylcholine, Rocuroniun, and Fentanyl.2 Jones testified that of
the drugs administered to the Defendant, Versed, Dilaudid, and Fentanyl would show up
on a toxicology screen, but the other drugs would not show up on a screen. On cross-
examination, Jones agreed that these drugs were administered to the Defendant while he
was in the surgery holding unit around 7 a.m. and not while he was in the trauma unit
when he first arrived at the hospital.

        Agent Stephanie Dotson of the Tennessee Bureau of Investigation (“TBI”)
testified as an expert in forensic toxicology. She received a sample of the Defendant‟s
blood from the EPD and performed an alcohol analysis on it to determine its blood
alcohol content, the results of which she memorialized in a report that was introduced
into evidence at the hearing. When asked whether certain drugs, like benzodiazepine or

       2
           The names of these drugs were spelled phonetically in the transcript.
                                                -4-
Dilaudid, could impact a toxicology analysis, she responded, “[w]hen a drug screen is
run[,] we can find benzodiazepine. We cannot find Dilaudid, so, it would not show up.”
She added that if a sample of blood were drawn “fairly recently” after the patient was
administered a benzodiazepine drug, the toxicology analysis would not detect it yet.

      Following the hearing, the trial court denied the Defendant‟s motion in an order on
October 23, 2013. In finding exigent circumstances existed to justify the warrantless
blood draw, the court made the following findings:

               This accident occurred late at night after the Elizabethton City Police
       Department had no officer on service at the police department. The
       collision[] occurred when the [D]efendant failed to negotiate a slight turn
       on Milligan [Highway]. The collision was violent and . . . . [d]ebris was
       scattered throughout the scene. It was obvious to Captain Workman that
       the [D]efendant was seriously injured. The officer believed that the
       [D]efendant had internal injury and surgery might be immediate. The
       officer had no way to phone the [Police] Department to start the search
       warrant procedure. No officer on the scene had a laptop computer in order
       to use a template to print off a proposed search warrant. In order to obtain a
       search warrant, the officer would have to return to the Police Department.
       Once at the Department, he would be required to draft the search warrant
       and call an Assistant District Attorney to review the warrant. Then the
       officer would have to contact on[e] of the Judges for their signature. This
       process would have taken some time to complete. The officer knew that
       surgery was a distinct possibility and that surgery more than likely would
       require the injection of various chemicals into the [D]efendant‟s body that
       might compromise the integrity of a blood alcohol test or drug screen.
       Under these circumstances, the Court finds that there were exigent
       circumstances that justified taking of the blood sample.

              The Court finds that the fact that surgery was undertaken some five
       hours later or that the drug [D]ilau[d]in that was administered to the
       [D]efendant would not have affected the [toxicology screen] is not material.
       The test of reasonableness is determined in the subjective thoughts of the
       officer at the time the decision was made to order the blood sample.
       Wherefore, the Court overrules the Motion to Suppress.

                                          TRIAL

        State’s Proof. Officer Matt Sexton‟s testimony at trial was largely consistent with
his testimony from the suppression hearing. He described the scene as “the worst wreck
                                             -5-
[he had] ever seen” and recalled that the car was “nearly unrecognizable.” Officer
Sexton was sent to JCMC to obtain a sample of the Defendant‟s blood. He provided
hospital staff with a TBI blood collection kit and waited outside of the curtain to the
trauma bay while the nurse drew the Defendant‟s blood. After the nurse returned the
blood sample, Officer Sexton returned to the scene of the accident and helped divert
traffic and preserve the scene. On cross-examination, Officer Sexton testified that he had
no “personal contact” with the Defendant and did not observe his injuries. He was
informed that the Defendant had a leg injury but knew of no other injuries.

      Captain Greg Workman likewise testified consistently with his testimony from the
suppression hearing. He described the duties of the officers on the scene as follows:

      [F]irst off, we had to preserve that crime scene. This happened on Milligan
      Highway, so we had to divert traffic. So, that tied up at least three officers
      to divert traffic so we would have no other vehicles[] or individuals coming
      up on that scene. We had one that was responsible for photography of that
      scene. We also had individuals that were responsible for making the
      markings of the skid marks, the final rest of the vehicle, final rest of heavy
      objects of the vehicle that were dislodged from the impact. And also we
      had a scribe and then we had other individuals that were responsible for
      taking the measurements of that scene.

Based on his experience and observations at the scene, Captain Workman concluded that
the Defendant may have been under the influence of alcohol, and he directed Officer
Sexton to go to JCMC to obtain a sample of the Defendant‟s blood. On cross-
examination, Captain Workman agreed that he did not hire an expert to examine the car
for other possible causes for the accident.

        Officer Ryan Brackett also testified consistently with his testimony from the
suppression hearing. At trial, he was qualified as an expert in traffic reconstruction and
testified about the accident reconstruction in this case. He opined that the Defendant‟s
car was traveling at least 91.3 miles per hour prior to braking, evidenced by the start of
skid marks on Milligan Highway, and was traveling 75 to 85 miles per hour at the time of
impact. On cross-examination, Officer Brackett stated that he conducted a background
check on the car through Rick Hill Imports and the National Institute of Highway Safety
and found no recall on a 2002 BMW. He agreed that he found the victim‟s cell phone at
the scene and returned it to the victim‟s father. He did not search the phone because he
did not have a search warrant or permission from the victim‟s family to do so and
because he did not think it was relevant.


                                           -6-
       TBI Special Agent Stephanie Dotson testified as an expert in the field of forensic
science. She analyzed the Defendant‟s blood sample in the present case and testified that
his blood alcohol content was .14 grams percent. She recorded these findings in a report,
which was introduced into evidence.

        Dr. Ken Ferslew testified as an expert in forensic toxicology and reviewed the
findings in the Defendant‟s case. In analyzing the Defendant‟s case, he was provided the
crash report, the officers‟ notes, the Defendant‟s medical records, and the TBI toxicology
reports of the Defendant‟s blood sample. He explained that based on the evidence he was
provided, he was able to calculate a predicted blood alcohol content of .152 grams
percent at the time of the crash. He noted that this percent would have been the highest
possible concentration prior to the accident. Dr. Ferslew testified that such concentration
levels of impairment often cause loss of inhibitions, euphoria, psychomotor impairment,
ataxia, motor-incoordination, and an increase in personality. Dr. Ferslew testified that the
Defendant was intoxicated at the time of the crash but acknowledged that he could not
testify as to the extent of his impairment because no psychomotor evaluations, such as a
field sobriety test, were performed on him. He stated, however, that regardless of the
extent of the Defendant‟s impairment, his intoxication “would have contributed to his
mis-operation of the vehicle.”

       Defendant’s Proof. Wayne Pritchard, a Carter County Sheriff‟s Deputy, testified
that he arrived on the scene two or three minutes before any EPD officers arrived and
found the Defendant lying on the ground outside of the car. He asked the Defendant
whether any other occupants were in the vehicle, and the Defendant informed him that
there was another passenger.

        Quinton Garrett, a friend of the Defendant and the victim, testified that he rode
with the Defendant to the victim‟s apartment on the night of August 13, 2012. He
testified that he did not see the Defendant consume any alcohol prior to arriving at the
victim‟s apartment and that the Defendant did not bring any alcohol to the apartment. He
observed the Defendant drink alcohol at the victim‟s apartment but did not know how
much he drank. When asked about the state of the Defendant‟s sobriety, Garrett testified,
“If I didn‟t see him [drink] I wouldn‟t think he had been drinking at all.” Garrett recalled
that the Defendant asked the victim if he wanted to ride with him to the store to buy
cigarettes and the victim agreed.

       The Defendant testified that he was 19 years old and a junior at East Tennessee
State University at the time of the accident. He had known the victim since 5th or 6th
grade, and the two were best friends. On August 13, 2012, the victim invited the
Defendant and several other friends to his apartment to play a drinking game. The
Defendant testified that he did not drink any alcohol prior to arriving at the victim‟s
                                            -7-
apartment and estimated that he consumed three alcoholic beverages while at the victim‟s
apartment. After several hours, the group “decided that we needed more cigarettes if we
were going to keep drinking.” The Defendant believed that he was sober enough to drive
to the store, and the victim agreed to ride with him. After purchasing a pack of cigarettes
at the store, the Defendant and victim drove back towards the victim‟s apartment. The
Defendant described the events as follows:

       I just remember lighting up a cigarette, pulling out of the [store] parking
       lot, roll[ing] the windows down. . . . [We took] the same route that we had
       taken to get there, the Milligan Highway. We . . . turned up the music,
       started speeding, . . . then we c[a]me to the straightaway.

       ....

       [A]pproaching the turn I actually remember . . . everything was normal. I
       go to just take the turn . . . [and] realize that . . . something was wrong. My
       first reaction is just brakes „cause I . . . was speeding and the recommended
       speed on that road is 40, 45 whatever. I was definitely above that, so, I hit
       the brakes. Nothing – part of the brakes. Nothing from the steering.

The Defendant explained that when he turned the wheel, “nothing happen[ed].” He
testified that he had problems with the steering in his car prior to the accident and had it
repaired in May 2012.

       After the accident, the Defendant immediately yelled for the victim. He smelled
“gas and other things” so he climbed out of the car. When he tried to stand up to look for
the victim, he realized his leg was broken. He waved down a passing truck and told the
two men to help the victim get out of the car and to call the police. The Defendant was
taken to the hospital for medical treatment and was told that the victim was killed in the
accident the following morning. On cross-examination, the Defendant denied that
anyone else offered to drive to the store that night. He agreed that he made the decision
to drive to the store knowing that he was not fully sober and that he made a conscious
decision to speed.

        Jeff Gwinn, the owner and operator of Jeff‟s Paint and Body, testified that he
repaired the Defendant‟s car in June 2012. He recalled that he repaired, among other
things, the right tie rod of the vehicle. He agreed that the Defendant presented him a
parts list from Rick Hill Imports detailing the parts and repairs he wanted and that most
of the parts dealt with the suspension of the car. He also agreed that not all of the parts
and repairs on that list were completed. On cross-examination, he explained that there is
a difference in the quote estimate and the final bill because “I give a quote and then I go
                                             -8-
off of what we find when we get up in the air.” He agreed that if he saw something on
the car that was not repaired that he believed to be dangerous, he would have notified the
owner. With regard to the Defendant‟s car, he insisted that there was “nothing that was
not repaired.” After returning the car to the Defendant, he was not contacted by the
Defendant about any problems with the car.

        State’s Rebutal Proof. On rebuttal, the State called Hunter Kitchens, a friend of
the Defendant and victim who was at the victim‟s apartment on the night of August 13,
2012. He testified that he observed the Defendant drinking alcohol at the victim‟s
apartment that evening and that he offered to drive to get more cigarettes. The Defendant
declined his offer and said he was “okay to drive.” On cross-examination, Kitchens
testified that the Defendant and the victim were “best friends . . . honestly more like
brothers.”

       Following deliberations, the Defendant was convicted of vehicular homicide by
intoxication. At the sentencing hearing, the trial court denied alternative sentencing and
imposed the minimum sentence of eight years‟ confinement, to be served at 30 percent.
On May 29, 2014, the Defendant filed a timely motion for new trial and new sentencing
hearing. He subsequently filed an amended motion for new trial and new sentencing
hearing, and a hearing was held on the matter on July 1, 2014. On July 7, 2014, the trial
court denied the Defendant‟s motion.

      The Defendant now timely appeals.

                                      ANALYSIS

       I. Motion to Suppress. The Defendant first challenges the trial court‟s denial of
his motion to suppress the evidence obtained from a warrantless blood draw taken
pursuant to Tennessee Code Annotated section 55-10-406(f)(1) (2012). Specifically, he
asserts that the blood draw, taken without his consent, violated his right to be free from
unreasonable searches and seizures and that it was not justified by any exception to the
warrant requirement. The State responds that the warrantless blood draw was justified by
consent and exigent circumstances, and thus, the trial court properly denied the
Defendant‟s motion. Upon our thorough review of the record, we agree with the
Defendant that no exception to the warrant requirement existed to justify the warrantless
blood draw.

       When evaluating a trial court‟s ruling on a motion to suppress, this court may
consider the proof presented at both the suppression hearing and 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)). “A trial court‟s findings of fact in a suppression hearing will
                                           -9-
be upheld unless the evidence preponderates otherwise.” State v. Williams, 185 S.W.3d
311, 314 (Tenn. 2006) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The
Tennessee Supreme Court explained this standard:

      Questions of credibility of the witnesses, the weight and value of the
      evidence, and resolution of conflicts in the evidence are matters entrusted to
      the trial judge as the trier of fact. 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. So long as the greater weight of the
      evidence supports the trial court‟s findings, those findings shall be upheld.

Odom, 928 S.W.2d at 23. However, this court‟s review of a trial court‟s application of
the law to the facts is de novo. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008) (citing
Williams, 185 S.W.3d at 315; State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

        The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect individuals from unreasonable searches and seizures.
See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. These constitutional protections are
designed to “„safeguard the privacy and security of individuals against arbitrary invasions
of government officials.‟” State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998) (quoting
Camara v. Mun. Court, 387 U.S. 523, 528 (1967)). “The touchstone of the Fourth
Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991). “[U]nder
both the federal and state constitutions, 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.” Yeargan, 958 S.W.2d at 629
(citing Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971); State v. Bartram, 925
S.W.2d 227, 229–30 (Tenn. 1996)). The State bears the burden to establish by a
preponderance of the evidence that a warrantless search or seizure is constitutional. See,
e.g., State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).

       The drawing of the Defendant‟s blood unquestionably constituted a search
implicating Fourth Amendment protections. “Such an invasion of bodily integrity
implicates an individual‟s „most personal and deep-rooted expectations of privacy.‟”
Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quoting Winston v. Lee, 470 U.S.
753, 760 (1985)); see also Skinner v. Railway Labor Executives‟ Ass‟n., 489 U.S. 602
(1989). Thus, “the importance of requiring authorization by a „neutral and detached
magistrate‟ before allowing a law enforcement officer to „invade another‟s body in search
of evidence of guilt is indisputable and great.‟” Id. (quoting Schmerber v. California, 384
U.S. 757, 770 (1966)). As noted, however, the warrant requirement is subject to
                                           -10-
exceptions. These recognized exceptions include “search incident to arrest, plain view,
stop and frisk, hot pursuit, search under exigent circumstances, and . . . consent to
search.” State v. Charles A. Kennedy, No. M2013-02207-CCA-R9-CD, 2014 WL
4953586, at *6 (Tenn. Crim. App. Oct. 3, 2014) (quoting State v. Cox, 171 S.W.3d 174,
179 (Tenn. 2005)).

       Consent. We first address the State‟s contention that the warrantless blood draw
was justified by the consent exception to the warrant requirement based upon the implied
consent statute. Under the implied consent statute, anyone who drives a car in this state
“is deemed to have given consent to a test or tests for the purposes of determining the
alcoholic content of that person‟s blood[.]” T.C.A. § 55-10-406(a) (2012). The statute
further provides that a driver may generally refuse to consent to such a test and be subject
to a violation of the implied consent law. See id. § 55–10–406(a)(4)(A).3 However,
section (f) delineates exceptions to the driver‟s statutory right to refuse consent, which
includes where a law enforcement officer has probable cause to believe that a driver
involved in an accident resulting in the injury or death of another was under the influence
of alcohol. See id. § 55-10-406(f)(1).4 Based on these provisions, the State asserts that
the Defendant impliedly consented to a blood draw when he chose to operate his car on
the roadways in Tennessee. Because there is no indication in the record that he revoked
this consent, the State maintains that his implied consent remained valid and was
sufficient for Fourth Amendment purposes to justify the warrantless blood draw.

        Despite these arguments on appeal, the State conceded at the suppression hearing
that this case involved a “non-consensual blood draw” and relied solely on exigent
circumstances to justify the search. “When an issue is raised for the first time on appeal,
it is typically waived.” State v. Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005);
see also, e.g., Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring
relief be granted to a party responsible for an error or who failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.”); Simpson
v. Frontier Community Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991) (“[I]ssues not
raised in the trial court cannot be raised for the first time on appeal.”) (citations omitted);
Charles A. Kennedy, 2014 WL 4953586, at *10 (“Because the State failed to present this
argument in the trial court, the trial court did not have the opportunity to pass on it, and
we will not consider it.”). Accordingly, we conclude that the State has waived our
consideration of this issue and decline to address it.


       3
         The implied consent statute has since been revised, and this provision is now codified at
Tennessee Code Annotated section 55-10-406(d)(1) (Supp. 2013).
       4
         Following the revision of the implied consent statute, this provision is now codified at
Tennessee Code Annotated section 55-10-406(d)(5)(A) (Supp. 2013).
                                              -11-
        Exigent Circumstances. The State also argues that the warrantless blood draw in
this case was justified by exigent circumstances. This exception applies “when the
exigencies of the situation make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable under the Fourth Amendment.” McNeely,
133 S. Ct. at 1558 (quoting Kentucky v. King, 131 S. Ct. 1849, 1856 (2011)). “[T]he
inquiry is whether the circumstances give rise to an objectively reasonable belief that
there was a compelling need to act and insufficient time to obtain a warrant.” State v.
Meeks, 262 S.W.3d 710, 723 (Tenn. 2008). “Mere speculation is inadequate; rather, the
State must rely upon specific and articulable facts and the reasonable inferences drawn
from them.” Id. “A variety of circumstances may give rise to an exigency sufficient to
justify a warrantless search,” including, as relevant here, the prevention of “the imminent
destruction of evidence.” Id. (citations omitted). “To determine whether a law
enforcement officer faced an emergency that justified acting without a warrant, this Court
looks to the totality of the circumstances.” Id. at 1159 (citing Brigham City v. Stuart, 547
U.S. 398, 406 (2006); Illinois v. McArthur, 531 U.S. 326, 331 (2001); Richards v.
Wisconsin, 520 U.S. 385, 391–96 (1997); Cupp v. Murphy, 412 U.S. 291, 296 (1973)).

       In the context of drunk-driving cases, as in other contexts, exigency must be
determined on a case-by-case basis. McNeely, 133 S. Ct. at 1556; see, e.g., State v.
James K, Gardner, No. E2014-00310-CCA-R3-CD, 2014 WL 5840551, at *8 (Tenn.
Crim. App. Nov. 12, 2014); State v. James Dean Wells, No. M2013-01145-CCA-R9-CD,
2014 WL 4977356, at *4-5 (Tenn. Crim. App. Oct. 6, 2014); Charles A. Kennedy, 2014
WL 4953586, at *7 (Tenn. Crim. App. Oct. 3, 2014). While the natural dissipation of
alcohol from the bloodstream can be considered as a factor in determining exigency, it
does not create a per se exigency sufficient to dispense with the warrant requirement in
every drunk-driving case. McNeely, 133 S. Ct. at 1563. Indeed, “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; however, “[i]n 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.” McNeely, 133 S. Ct. at 1561.

       Turning to the instant case, the record establishes that the accident occurred at
approximately 1:50 a.m. and that multiple emergency response workers, including county
and city police officers, the local fire department, and an emergency medical service
team, responded to the scene within minutes. The Defendant was injured in the accident
and transported to the hospital in an ambulance within 25 minutes of the accident. His
blood was drawn at 2:30 a.m., approximately 45 minutes after the accident. In total, 11
Elizabethton city police officers responded to the scene and at least four of these officers
had experience drafting search warrants. Further, Captain Workman testified that two
                                            -12-
judges lived within a few miles of the accident and were willing to review and sign
search warrants at any hour of the night. Rather than start the process of obtaining a
search warrant, however, Captain Workman directed Officer Sexton to follow the
Defendant to the hospital to obtain a sample of his blood without a warrant.

       In finding exigent circumstances, the trial court emphasized that the accident
occurred late at night when no officers were on duty at the police department; thus, in
order to obtain a warrant, an officer would have had to leave the scene and return to the
police department to draft a warrant, contact an assistant district attorney to review the
warrant, and contact a judge to sign the warrant. The court found that this process would
have “taken some time to complete” and, when coupled with the fact that the Defendant
was likely to undergo surgery, made obtaining a warrant impractical. In our view,
however, these circumstances are not unique nor do they, without more, create exigent
circumstances to justify the warrantless blood draw. There was no evidence in the record
about the length of time it actually would have taken to obtain a warrant, and there was
nothing to suggest that obtaining a warrant on this particular night would have taken
longer than in other cases. Further, while Captain Workman testified that it was
necessary for all of the responding officers to remain on the scene to investigate and clear
it before the morning commute, the record confirms that at least two officers were
directed to leave the scene to obtain blood samples from the Defendant and the victim.
The State fails to explain why one of these officers could not have returned to the police
department to start the warrant process while the Defendant was being transported to the
hospital. See McNeely, 133 S. Ct. at 1561 (“Consider, for example, a situation in which
the warrant process will not significantly increase the delay before the blood test is
conducted because an officer can take steps to secure a warrant while the suspect is being
transported to a medical facility by another officer. In such a circumstance, there would
be no plausible justification for an exception to the warrant requirement.”). Likewise,
Captain Workman‟s concerns about surgery were based upon nothing more than mere
speculation and were not supported by any specific and articulable facts. To support a
finding of exigent circumstances, the Fourth Amendment demands more. See Meeks,
262 S.W.3d at 723.

       As noted by the Supreme Court in McNeely, “some delay between the time of the
arrest or accident and the time of the test is inevitable regardless of whether police
officers are required to obtain a warrant.” McNeely, 133 S. Ct. at 1561 (citation omitted).
We do not doubt that there would have been some delay caused by obtaining a warrant in
the instant case. Notwithstanding, the State failed to show that this delay would have
“significantly undermined the efficacy of the search.” See id. Consequently, we cannot
conclude that exigent circumstances justified the warrantless search. Therefore, we
reverse the judgment of the trial court denying the Defendant‟s motion to suppress
evidence obtained as a result of the blood draw, vacate the Defendant‟s conviction, and
                                            -13-
remand this case for a new trial where the blood test results will be inadmissible. In case
of further review, we will address the additional issues raised by the Defendant.

       II. Sentencing. The Defendant also raises several challenges to his sentence of
eight years‟ confinement. Specifically, he argues that the trial court abused its discretion
in denying alternative sentencing and that the trial court improperly admitted victim
impact statements and testimony from members of the victim‟s family who fell outside of
the Victim Impact Statement Act. The State responds that the trial court did not err in
sentencing the Defendant. We agree with the State.

       At the sentencing hearing, the State introduced the Defendant‟s presentence report
and a number of victim impact statements. The State also called several of the victim‟s
family members to testify at the hearing. After arguments by the State and the
Defendant, the trial court made oral findings and imposed the following sentence:

       The court finds that there are no enhancement factors in this case and there
       are no mitigating factors in this case. The court sentences this defendant to
       eight years in the Department of Correction[] as a Standard Offender to
       serve 30% before he‟s eligible for release. The [court] has considered the
       sentencing alternatives in this case, has considered the recklessness of this
       case not only the drinking but the excessive speed in this case. The court
       has considered that our . . . highways are becoming . . . slaughterhouses for
       people who don‟t think before they drink and drive and that confinement is
       necessary to avoid deprec[i]ating the seriousness of the offense and
       therefore denies any alternative sentencing.

Subsequently, at the hearing on the motion for new trial and new sentencing hearing, the
trial court clarified its earlier findings:

       [T]he court found no enhancement factors in this case whatsoever. [The
       Defendant] didn‟t have a prior record. He . . . hadn‟t been committed while
       he was on release. I could find no enhancement factors under the statute
       that applied to this case at all. I could find no mitigating factors about this
       case. I did notice that this defendant . . . showed some remorse, but that
       remorse was I think to be expected. . . . This court denied . . . alternative
       sentencing on the sole basis of . . . the fact that . . . confinement was
       necessary to [avoid] deprec[i]at[ing] the seriousness of this offense. As I
       mentioned in my statements[,] it was a horrific accident. It involved both
       speed and . . . drinking. I mentioned . . . that whether or not this was
       applicable[,] . . . our highways have become slaughterhouses . . . . [T]he
       sole purpose of not granting any type of alternative sentencing is that . . . to
                                            -14-
       have done so would have deprec[i]ated the seriousness of a very tragic,
       tragic accident which involved absolutely no thought of the consequences
       of drinking and engaging in . . . the speed.

Having articulated its reasons for denying alternative sentencing, the trial court denied
the Defendant‟s motion for a new sentencing hearing.

       Because of the broad discretion given to trial courts by the 2005 amendments to
the Sentencing Act, “sentences should be upheld so long as the statutory purposes and
principles, along with any applicable enhancement and mitigating factors, have been
properly addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Therefore, this
court reviews a trial court‟s sentencing determinations under “an abuse of discretion
standard of review, granting a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Id. at 707. To find an abuse of discretion, the record must be void of
any substantial evidence that would support the trial court‟s decision. State v. Shaffer, 45
S.W.3d 553, 555 (Tenn. 2001). This standard of review applies to a trial court‟s decision
regarding “probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012).

      Pursuant to the 2005 amendments to the Sentencing Act, a trial court must
consider the following when determining a defendant‟s specific sentence and the
appropriate combination of sentencing alternatives:

       (1) the evidence, if any, received at the trial and the sentencing hearing; (2)
       the presentence report; (3) the principles of sentencing and arguments as to
       sentencing alternatives; (4) the nature and characteristics of the criminal
       conduct involved; (5) evidence and information offered by the parties on
       the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
       114; (6) any statistical information provided by the administrative office of
       the courts as to sentencing practices for similar offenses in Tennessee; and
       (7) any statement the defendant wishes to make in the defendant‟s own
       behalf about sentencing.

T.C.A. § 40-35-210(b)(1)-(7) (2014). The defendant has the burden of showing the
impropriety of the sentence on appeal. Id. § 40-35-401(d) (2010), Sentencing Comm‟n
Cmts. In determining the proper sentence, the trial court must consider the defendant‟s
potential for rehabilitation or treatment. Id. §§ 40-35-102, -103 (2014). In addition, the
court must impose a sentence “no greater than that deserved for the offense committed”
and “the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. § 40-35-103(2), (4).
                                            -15-
       Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code
Annotated section 40-35-102(6)(A) states that a defendant who does not require
confinement under subsection (5) and “who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary[.]”
However, a trial court “shall consider, but is not bound by, the advisory sentencing
guideline” in section 40-35-102(6)(A). T.C.A. § 40-35-102(6)(D). A trial court should
consider the following when determining whether there is “evidence to the contrary”
indicating that an individual should not receive alternative sentencing:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. T.C.A. § 40-35-303(a) (2010). The trial court shall
automatically consider probation as a sentencing alternative for eligible defendants;
however, the defendant bears the burden of proving his or her suitability for probation.
Id. § 40-35-303(b). In addition, “the defendant is not automatically entitled to probation
as a matter of law.” Id. § 40-35-303(b), Sentencing Comm‟n Cmts. Rather, the
defendant must demonstrate that probation would “„subserve the ends of justice and the
best interest of both the public and the defendant.‟” State v. Carter, 254 S.W.3d 335, 347
(Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App.
1997)).

      When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant‟s criminal record, the defendant‟s
background and social history, the defendant‟s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
                                           -16-
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). In addition, “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed[,]”
and “[t]he length of a term of probation may reflect the length of a treatment or
rehabilitation program in which participation is a condition of the sentence[.]” T.C.A. §
40-35-103(5).

       In the case sub judice, the Defendant argues that the trial court failed to articulate
reasons supporting its decision and improperly relied on elements of the offense to deny
alternative sentencing. He further argues that the court based its decision upon a need for
deterrence, which was not supported by specific evidence in the record. See State v.
Hooper, 29 S.W.3d 1, 13 (Tenn. 2000) (holding that the sentencing court could rely on
deterrence alone to support a denial of probation or an alternative sentence if the record
“contain[ed] evidence which would enable a reasonable person to conclude that (1)
deterrence is needed in the community, jurisdiction, or state; and (2) the defendant‟s
incarceration may rationally serve as a deterrent to others similarly situated and likely to
commit similar crimes”). However, a review of the record belies these assertions.

       The trial court‟s oral findings show that it properly considered the facts and
circumstances of this particular offense and the appropriate sentencing principles when
rendering its decision. Although the State and the Defendant argued for application of
various enhancement and mitigating factors, the court found no factors applicable to the
Defendant‟s case. The court acknowledged the Defendant‟s lack of a criminal record and
his expression of remorse but noted the “horrific” and “tragic” nature of the accident.
While the trial court stated its concern that “our highways have become slaughterhouses,”
the record clearly indicates that the court based its decision “solely” on the fact that
alternative sentencing would depreciate the seriousness of the offense. Tennessee courts
have held that if the seriousness of the offense forms the basis for the denial of alternative
sentencing, “„the circumstances of the offense as committed must be especially violent,
horrifying, shocking, reprehensible, offensive or otherwise of an excessive or
exaggerated degree,‟ and the nature of the offense must outweigh all factors favoring a
sentence other than confinement.”5 State v. Bottoms, 87 S.W.3d 95, 103 (Tenn. Crim.

        5
           This court has questioned the continued viability of the heightened standard of review where the
trial court denies alternative sentencing solely on the need to avoid depreciating the seriousness of the
offense in light of Bise and Caudle. See State v. Edward Shannon Polen, No. M2012-01811-CCA-R3-
CD, 2014 WL 1354943, at *8 (Tenn. Crim. App. Apr.4, 2014), perm. app. denied (Tenn. Aug. 29, 2014);
State v. Delavan Benjamin Mohammed, No. M2011-02552-CCA-R3-CD, 2013 WL 1874789, at *6
(Tenn. Crim. App. May 3, 2013), perm. app. denied (Tenn. Oct. 16, 2013). However, in State v. Kyto
Sihapanya, the Tennessee Supreme Court seemingly indicated that the heightened standard of review is
still applicable “in cases in which the trial court denies probation based on only” the seriousness of the
offense. --- S.W.3d ----, 2014 WL 2466054, at *3 (Tenn. Apr.30, 2014).
                                                   -17-
App. 2001) (quoting State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991));
see also State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006). As correctly noted by the
Defendant, a trial court may not consider factors that constitute elements of the offense in
determining whether the circumstances of an offense satisfy this standard. See
Housewright, 982 S.W.2d at 358 (citing State v. Bingham, 910 S.W.2d 448, 456 (Tenn.
Crim. App. 1995), overruled on other grounds by Hooper, 910 S.W.3d at 10). In contrast
to the assertions of the Defendant, however, the trial court in the instant case did not rely
on elements of the offense to deny alternative sentencing. Rather, the court‟s ruling
makes clear that it focused on the specific circumstances of the offense and concluded
that alternative sentencing was not warranted. The court emphasized the fact that the
accident involved both excessive speed and alcohol and that the Defendant gave “no
thought to the consequences” of his actions. The record supports the trial court‟s
conclusion and its decision to deny alternative sentencing on this basis. Accordingly, we
conclude that the trial court did not abuse its discretion in sentencing the Defendant.

       The Defendant also argues that the trial court improperly admitted victim impact
statements and victim impact testimony at the sentencing hearing. Specifically, he
complains that the trial court admitted victim impact statements from the Defendant‟s
aunt and uncle although these family members are not “victims” as defined by the Victim
Impact Statement Act. See T.C.A. § 40-38-203(3) (defining “victim” to include
“immediate family member[s]” of a homicide victim). He further argues that the trial
court erred in allowing these family members to testify at the sentencing hearing.
Despite extensive argument on appeal, however, the Defendant failed to
contemporaneously object to this evidence at the sentencing hearing. Relief on appeal is
typically not available when a party is “responsible for an error” or has “failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of any
error.” See Tenn. R. App. P. 36(a). Likewise, a party typically waives review of the trial
court‟s admission of evidence if that party fails to make a contemporaneous objection.
See State v. Reid, 213 S.W.3d 792, 847 (Tenn. 2006) (citations omitted); State v.
Thornton, 10 S.W.3d 229, 234 (Tenn. Crim. App. 1999) (citing Tenn. R. App. P. 36(a)).

       Waiver notwithstanding, we conclude that any error in admitting the written
statements or oral testimony of these additional family members was harmless because it
did not affect the outcome of the case. See Tenn. R. App. P. 36(b) (“A final judgment
from which relief is available and otherwise appropriate shall not be set aside unless,
considering the whole record, error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial process.”). At the
motion for new trial and new sentencing hearings, the trial court indicated that it “placed
very little emphasis on the victim impact testimony in this case” and stated, “[N]o
comments, no testimony that they presented at the sentencing hearing had any effect on
the court in . . . determining whether or not a . . . specific sentencing principle was
                                            -18-
involved.” The court then articulated the facts and circumstances that it found relevant in
denying alternative sentencing and reiterated that it based its decision on the need to
avoid depreciating the seriousness of the offense. The Defendant has pointed to nothing
in the record to show that the trial court‟s decision was improperly influenced by this
evidence. Accordingly, we conclude that the Defendant is not entitled to relief on this
issue.

                                        CONCLUSION

       Based on the foregoing authorities and analysis, we conclude that the trial court
erred by denying the Defendant‟s motion to suppress evidence obtained from the
warrantless blood draw. Accordingly, we reverse the judgment of the trial court in this
respect, vacate the Defendant‟s conviction, and remand for a new trial.


                                                  _________________________________
                                                  CAMILLE R. MCMULLEN, JUDGE




                                           -19-
