State of Tennessee v. William James Andrews

                                                                                           12/27/2023
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                      August 15, 2023 Session

            STATE OF TENNESSEE v. WILLIAM JAMES ANDREWS

                    Appeal from the Circuit Court for Williamson County
                      No. M-CR210102 James G. Martin, III, Judge
                         ___________________________________

                                No. M2022-00812-CCA-R3-CD
                            ___________________________________


Following a bench trial, the trial court found the Defendant, William James Andrews,
guilty of two counts of vehicular homicide by intoxication, two counts of vehicular
homicide by recklessness, two counts of reckless aggravated assault resulting in death, and
two counts of vehicular homicide with a prior DUI conviction. The trial court imposed an
agreed-upon twenty-year sentence in the Tennessee Department of Correction. On appeal,
the Defendant challenges the trial court’s denial of his motion to suppress evidence of drugs
in his blood, contending that he did not give consent for a blood draw. After review, we
affirm the trial court’s judgments.

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

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

John S. Colley, III, Columbia, Tennessee, for the appellant, William James Andrews.

Jonathan Skrmetti, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Stacey Edmonson, District Attorney General; and Dale L. Evans
District Attorney General, for the appellee, State of Tennessee.

                                                OPINION
                                                 I. Facts

      This case arises from a vehicle crash that resulted in the deaths of two people, Olga
Danylov and her minor child, N.D.1 The Defendant drove his vehicle directly into the
oncoming lane of traffic and hit the Danylov’s Infiniti SUV. The Defendant was

       1
           It is the policy of this court to refer to minors by their initial.
transported to the hospital, his blood tested, and results indicated the presence of fentanyl
and clonazepam. A Williamson County grand jury indicted the Defendant for two counts
of vehicular homicide by intoxication, two counts of vehicular homicide by recklessness,
two counts of reckless aggravated assault resulting in death, two counts of reckless
aggravated assault with a deadly weapon, and two counts of vehicular assault with a prior
conviction for driving under the influence (“DUI”). The Defendant filed a motion to
suppress the results of the blood test, which the trial court denied. The Defendant waived
his right to a jury, and the trial court conducted a bench trial and found the Defendant
guilty. The Defendant’s only issue on appeal relates to the trial court’s denial of his motion
to suppress the results of the blood test.

                                  A. Suppression Hearing

       The Defendant filed a motion to suppress the evidence of drugs found in the
Defendant’s blood, claiming that he did not voluntarily consent to a blood draw. The State
filed a response maintaining that the Defendant had consented and, alternatively, that
exigent circumstances existed to justify the warrantless blood draw. As the trial court’s
suppression ruling is the only issue relevant to the Defendant’s appeal, we will summarize
the facts from the suppression hearing and the trial as it relates to the Defendant’s challenge
to consent and the State’s alternative argument of exigent circumstances.

       On December 20, 2020, Mr. and Mrs. Gary and Gale Francis were driving on Goose
Creek Bypass in Williamson County, Tennessee, on their way to Cool Springs. The day
was sunny with good driving conditions. The couple was on a portion of the road that had
two lanes divided by double yellow lines when Mrs. Francis noticed a black Ram truck in
the oncoming lane that was about a third to half of the way over the double yellow line and
into her lane. The truck was approximately three car lengths away from the Francis’s white
Nissan Rogue. Mrs. Francis “knew that . . . whoever was in that [Ram truck] had no control
over it” and that if she did not move off the road, the Ram truck was going to hit her. Mrs.
Francis quickly pulled over to the shoulder of the road to avoid a crash. As she looked into
her rear view mirror she saw the Ram truck hit the white Infiniti SUV (“SUV”) driving
behind her.

       Mrs. Francis parked her car, put on her flashers, and she and her husband exited
their vehicle to see if they could help. They saw the front seat passenger of the SUV, Mr.
Danylov, who appeared to be in a daze, get a little girl, V.D., out of the SUV. Mrs. Francis
intervened and helped V.D. find her dog that had been in the SUV and then stayed with
V.D. while Mr. Danylov attended to the other people in his car.

     The Francises remained at the scene for over an hour and gave statements to a
Highway Patrol officer. The first responder to the crash scene was from the Williamson
                                              2
County Sheriff’s Department, who immediately began moving the crowd that had gathered
back away from the crash site. A Tennessee Highway Patrol officer, who arrived later,
requested that Mrs. Francis fill out a crash report statement. The statement read as follows:

       As I was driving East on Goose Creek Bypass a dark truck began moving
       into my lane. I smoothly, but quickly moved my car onto the shoulder to
       avoid the oncoming truck. Very soon afterwards we heard the crash.

       Before this accident, Jason Peveler was also driving along Goose Creek Bypass
when the Defendant pulled out in front of Mr. Peveler by the Shell gas station. Mr. Peveler
observed the Defendant’s driving in the minutes leading up to the crash and noted that the
Defendant hit the median barrier on three occasions. The Defendant also weaved within
his lane of traffic, which caused Mr. Peveler concern. As they continued driving, Mr.
Peveler observed the Defendant move into the oncoming lane and hit a white Infiniti SUV
head on. The Ram truck did not brake at all as it moved toward the oncoming SUV.

        Mr. Peveler parked his car and ran to the Ram truck where he found the Defendant
“passed out.” There was a hole in the windshield where it appeared the Defendant had
tried to kick out the windshield but, by the time Mr. Peveler arrived, the Defendant was
slumped against the passenger door with a cut to his forehead. Mr. Peveler checked the
Defendant’s truck to make sure no explosive materials were leaking from the truck. He
spoke with Mr. Danylov briefly, cautioning him not to try to remove his wife from their
SUV but to wait for emergency personnel to attend to her medical needs due to the severity
of her injuries.

         Mr. Peveler testified that the Williamson County Sheriff’s Office deputies arrived
first, followed by an ambulance and then Tennessee Highway Patrol officers. The medical
responders were at the scene a short period before placing a white sheet over Mrs. Danylov,
the driver of the SUV. Mr. Peveler attempted to comfort the distraught Mr. Danylov. He
provided a statement to a Highway Patrol officer:

       I was behind the driver of the black Dodge Ram. He got in front of me around
       the Chick-Fil-A at Berry Farms. I watched him swerve several times to the
       left from when he got in front of me. . . . [W]hen he hit the wreck, the driver
       looked like he blacked out. He went to the left directly in to oncoming traffic,
       no brakes, no swerve, just straight in to oncoming traffic. He hit the white
       Infinit[i] head-on.

       George Danylov testified that he, his wife Olga, son N.D., and daughter V.D. were
driving to the Sports Academy in Cool Springs to buy a kickstand for N.D.’s bicycle. Mrs.
Danylov was driving the SUV, with Mr. Danylov seated in the front seat, V.D. directly
                                              3
behind him, and N.D. behind the driver. As they passed McLemore Farms on Goose Creek
Bypass they drove behind a white Nissan Rogue. The Rogue unexpectedly swerved right,
and Mr. Danylov saw a black Ram truck, approximately fifty feet away, driving directly
toward them. The driver of the vehicle, later identified as the Defendant, appeared to be
unconscious with his head down to the side. The primary impact was to the driver’s side
where Mr. Danylov’s wife and son were seated. The Danylovs’ SUV came to a stop on
the grass on the side of the road. Mr. Danylov asked if everyone was okay, his wife and
son were breathing heavily, and V.D. answered that she was “okay.”

       Mr. Danylov exited the SUV and extracted V.D. from the SUV through his
passenger door since all of the car doors were locked. Mr. Danylov then walked around to
the driver’s side and saw that Mrs. Danylov “had a really big cut, wide open.” Mrs.
Danylov was “covered with metal.” Mr. Danylov began pulling the metal out but quickly
realized that the metal was “stuck in her.” Mr. Danylov tried to open the rear passenger
door but pulled the handle off the car instead. He began screaming for help. He described
the scene as “complete chaos.” Mr. Danylov’s phone was lost during the impact, so he
asked bystanders gathering at the scene to call the police. He watched as Mrs. Danylov
stopped breathing.

        The first person to arrive was a Sheriff’s deputy. By this time, approximately twenty
to thirty people from a nearby neighborhood had gathered. Some were standing back but
others were closer to the vehicles. Mr. Danylov asked the deputy to get an ambulance to
assist his wife and son. Mr. Danylov could hear his son, who was pinned under Mrs.
Danylov’s seat, crying. Sheriff’s deputies began working to get N.D. out of the car. Once
N.D. was freed from the vehicle, the emergency responders encouraged Mr. Danylov, who
was distraught over seeing his wife die, to step away from the vehicles.

       Mr. Danylov told both the initial deputy who arrived on the scene and a female
Tennessee Highway Patrol Trooper what had occurred, including that he saw the
Defendant’s head drooped down as the Defendant drove toward them. When released from
the scene, Mr. Danylov drove to Williamson Medical Center where his son had been
transported. He had seen N.D. move his arm before he was loaded into the ambulance, so
Mr. Danylov believed that N.D. would be “okay.” When he arrived at the hospital,
however, a doctor informed him that N.D. had died.

       Williamson County Sheriff’s Office Deputy Houston Bagsby responded to the crash
scene with his trainee, Ethan Lankford. The trainee had been out of the Police Academy
for two days and, as a new trainee, was required to stay with Deputy Bagsby at all times.
Deputy Bagsby identified video footage from the body camera he wore while at the crash
scene. Deputy Bagsby identified the Defendant on a stretcher in the video footage and
confirmed that he did not speak with the Defendant at the scene. When he arrived, he was
                                             4
immediately directed to the Danylovs’ SUV, where he saw Mr. Danylov and someone in
the backseat attempting CPR. Deputy Bagsby did not know the exact number but recalled
that there were “a lot of citizens on scene” before he arrived. Because there were so many
people around the car, Deputy Bagsby tried to move them back in an attempt to preserve
evidence. He also noted that due to vehicle parts and jagged edges, the vehicle itself was
dangerous.

         Deputy Bagsby did not initiate an investigation, but instead requested Tennessee
Highway Patrol (“THP”) assistance for investigating the accident. Deputy Bagsby stated
that it is standard practice to request THP assistance in cases involving serious injuries or
death due to THP resources and advanced training. THP arrived within ten to fifteen
minutes.

        Deputy Bagsby explained that Williamson County is divided into six geographical
sections, with a deputy assigned to patrol each of those sections. At the crash scene, there
were three deputies: Deputy Bagsby, the trainee, and Deputy Bagsby’s Captain, Rodney
King, who was off-duty at the time, but reported to the scene to assist. While THP
investigated, Sheriff’s deputies went to both ends of Goose Creek Bypass to block traffic
to allow for an investigation and for safety reasons due to the residual debris from the crash
in the road. Deputy Bagsby remained at the crash site to assist with Mr. Danylov. Deputy
Bagsby recalled that Mr. Danylov was, understandably, agitated and emotional. Mr.
Danylov kept trying to return to his SUV, so Deputy Bagsby was assigned to stay with Mr.
Danylov to keep him away from the vehicle.

        Deputy Bagsby had prior experience obtaining a search warrant for a blood draw.
He estimated he had done so between twenty-five and fifty times. Deputy Bagsby was
familiar with the process of obtaining a search warrant with the Williamson County
Magistrate’s Office, but he had not sought a warrant with the Circuit Court. Deputy Bagsby
testified that he believed he could not obtain a search warrant from a Williamson County
Magistrate to execute in another county. Deputy Bagsby estimated that approximately nine
Sheriff’s Department employees were working the day of the crash. One for each of the
six districts, his trainee, and two supervisory personnel who were at the Sheriff’s
Department and not on patrol.

       Deputy Bagsby identified the video footage from his car camera. The video depicts
Deputy Bagsby’s arrival to the scene. He ran past the Defendant’s truck because he was
immediately alerted to the serious nature of Ms. Danylov’s injuries. The video showed
emergency workers assisting the Defendant as he exited his Ram truck and sat down on a
stretcher. In the video, the Defendant stood without assistance, removed his jacket, and
then sat down on a gurney. After all the injured parties were transported from the scene,
Deputy Bagsby assumed traffic control.
                                              5
       THP Trooper Katlyn Bush reported to the scene and found “total chaos.” After
speaking to emergency responders on the scene, Trooper Bush instructed Deputy Bagsby
to keep Mr. Danylov away from the family vehicle. She explained that she did so for two
reasons: (1) Mrs. Danylov was deceased and “very mutilated,” so Trooper Bagsby wanted
to protect Mr. Danylov from the trauma; and (2) she wanted to protect any evidence at the
scene, which included keeping everyone except for investigators away from the wreckage.

       Trooper Bush explained that THP divided coverage of the State of Tennessee into
nine districts. Trooper Bush was assigned to the third district, Nashville. In Middle
Tennessee eleven counties are divided among seven troops and a “troop” generally has two
troopers on duty at any given time. On the date of the crash, Trooper Bush and Trooper
Hser were the troopers on duty.

       Trooper Bush identified the in-car dash camera recording from the incident.
Troopers wore portable microphone packs, so the video contained an audio recording of
the incident as well. During a portion of the recording, Trooper Bush stood at the back of
the ambulance and spoke with the Defendant. The audio was out of range given the
distance from her patrol vehicle to the ambulance, and thus the audio was “cutting in and
out.” Trooper Bush wanted to speak with the Defendant to see what information he could
provide for “report purposes.” Multiple EMS personnel were in the back of the ambulance
with the Defendant at the time she approached.

       At the time of their interaction, the Defendant was on a backboard and emergency
personnel were preparing to transport him to Vanderbilt University Medical Center.
Trooper Bush was able to speak with him for less than a minute. The Defendant provided
his name to Trooper Bush. Trooper Bush asked what happened and the Defendant stated
that “he just didn’t know.” Trooper Bush stood at the back doors of the ambulance
approximately two feet from the end of the stretcher and approximately six feet from the
Defendant’s head. After Trooper Bush obtained the Defendant’s driver’s license, the
Defendant confirmed that his license was “revoked restricted.” The endorsement code on
the Defendant’s driver’s license was the code for an ignition interlock device, indicating to
Trooper Bush that the license was restricted due to a prior DUI conviction.

       The State played the audio portion of a recorded phone call between Trooper Bush
and Sergeant Cockrell. Trooper Bush stated that the crash might have been head-on but
she could not tell yet “what kind of crash.” She noted the Defendant had a “restricted
license,” and that she was unable to get close enough to him to smell or notice any signs
indicating intoxication. She told Sergeant Cockrell that one person involved in the crash
was deceased upon Trooper Bush’s arrival and that there was a child that she believed was
not “too critical.” She reiterated that she could not, at that time, speak to whether the
                                             6
Defendant was under the influence. She reported that she would speak with EMS to see if
they had noticed any impairment. She relayed to Sergeant Cockrell the Defendant’s
statement to her that he “didn’t know what happened” but noted that the Defendant’s truck
had an ignition interlock device installed. She reported that County deputies were staying
with Mr. Danylov. At that time, she did not know whether the Defendant had crossed over
the center line. She stated that the ambulance transporting the Defendant to the hospital
had just left. Sergeant Cockrell instructed Trooper Bush to let him know if influence or
reckless driving was an issue so that he could notify the Critical Incident Response Team
(“CIRT”).

       Trooper Bush explained that CIRT responded in cases involving multiple fatalities,
a crash involving a felony charge, or felonies involving impairment. The role of this
specialized unit was to conduct an in-depth investigation of the crash scene. After it was
determined necessary, Trooper Ricky Alexander, a member of CIRT responded to the
scene of the crash.

        Trooper Bush questioned Mr. Danylov and the audio recording of this interaction
was played for the trial court. Mr. Danylov’s statement to Trooper Bush about the accident
was consistent with his testimony at the hearing. Mr. Danylov wanted to go to the hospital
to be with his son, but Trooper Bush requested that he stay through the end of the
investigation. She assured him that she would get updates on his son from the hospital. At
this time, Trooper Bush felt it was early in her assessment of the crash and noted that she
had not worked a scene of “this magnitude” before. As such, she was unfamiliar with how
the investigation would unfold and what other law enforcement might arrive at the scene
and need to speak with the witnesses, so she asked Mr. Danylov to stay at the scene.

       At some point Trooper Hser, the other THP trooper on duty in that area, responded
to the scene to assist. Trooper Bush handled gathering primary information, identifying
witnesses, and determining the circumstances of the crash. Trooper Hser assisted with
obtaining witness statements. Later, Trooper Hser took photographs and marked evidence
at the scene. On the day of the accident there were approximately ten troopers on duty
covering eleven counties. Sergeant Cockrell drove from Montgomery County to
Williamson County per THP protocol. In cases involving a death, a sergeant must be
present to assess the scene and to request CIRT when necessary. A road trooper does not
have the authority to request CIRT. Trooper Bush identified photographs of the vehicle
damage at the crash scene.

       Trooper Bush had been trained on the procedure to obtain a search warrant, for
example, when a driver does not willingly consent to have a blood test or if there are other
indicators of impairment and the driver cannot talk due to the nature of their injuries. If a
driver consents to a blood draw, however, Trooper Bush confirmed that she would not
                                             7
obtain a search warrant. Typically, she obtained search warrants from the Williamson
County Sheriff’s Office. She had never sought a search warrant from a circuit judge in
Williamson County. Trooper Bush explained that the investigating trooper could not leave
a crash scene to obtain a search warrant. Thus, the investigating trooper must arrange for
someone else to go to the hospital to see if they can obtain a consensual blood draw or seek
a search warrant based upon the investigating trooper’s testimony.

       Trooper Bush remained on the scene throughout the entire investigation, which
included CIRT’s investigation, tow trucks removing the vehicles, and the medical
examiner’s work at the scene.

       On prior occasions, Trooper Bush had obtained search warrants in Davidson County
and Williamson County. The process for obtaining a search warrant in Davidson County
entailed a trooper driving to the hospital and contacting the lab to learn whether a blood
sample had been taken for treatment purposes. If one had, a request must be made to place
a hold on the blood sample. In a case when blood had not been drawn, a trooper must then
access the Davidson County search warrant forms and fill in the information. A trooper
then would drive to either the Davidson County Sheriff’s Office or the police precinct on
Second Avenue to request a warrant from a magistrate. If the warrant was granted, a
trooper would return to the hospital and present the search warrant. The legal division for
the hospital then reviewed the warrant to determine whether the warrant was valid and
whether a blood draw should be taken.

        Trooper Bush estimated the time it would take for each step of the process of getting
a warrant. She estimated that it would take a trooper approximately five minutes to leave
the hospital and get to their car in the hospital parking lot. It would take ten to thirty
minutes to draft the warrant, depending on the amount of information involved. She
estimated ten to fifteen minutes to drive to the magistrate, depending on the traffic.
Approximately five minutes to get to the magistrate from their vehicle. Depending on how
many officers are seeking warrants at the time, it could take between ten to twenty minutes
for the wait time to present the request to the magistrate and have them issue a warrant.
After approval of the warrant, it took about five minutes for the administrative side of
signing and making copies of the warrant. The return trip to Vanderbilt University Medical
Center is approximately ten to fifteen minutes, depending on traffic. She estimated it
would take approximately two minutes to walk from the car to the emergency room where
the trooper presents the warrant to a charge nurse. The warrant is forwarded to the legal
department where it can take anywhere from twenty to forty minutes for legal review. If
the legal department approves the warrant, the trooper would then find an available nurse
to draw the blood. Trooper Bush estimated that finding a nurse can take between ten and
fifteen minutes.

                                             8
        Trooper Bush testified that as a Drug Recognition Expert she was familiar with
fentanyl, a narcotic class drug. She explained that a general indicator for fentanyl is users
have a hard time staying awake, often referenced as being “on the nod.” She explained
that fentanyl users will “droop their head,” you will alert them awake, they will stay awake
for a couple of moments and then drop their head again and fall back asleep. Pinpoint
pupils are also a common indicator of fentanyl use. Narcotics are the only drug class that
cause pinpoint pupils as opposed to dilated pupils.

       Trooper Bush said that in cases where more than one drug is in the system, indicators
of a specific drug may not be as apparent due to the influence of the other drug. For
example, if a person used a narcotic and a depressant, the pinpoint pupils may not present
depending on which of the two drugs was more dominant at that point in time. At the crash
scene, Trooper Bush did not see any indicators of impairment during her interaction with
the Defendant.

        The trial court asked Trooper Bush what facts she would have relied upon to seek a
warrant, and Trooper Bush responded that she would have relied upon: 1) the nature of the
collision – head-on; 2) the Defendant was driving in the oncoming lane of travel; 3) witness
testimony that the Defendant appeared to be asleep behind the wheel; and 4) the remainder
would be from Trooper Olivas’s interaction with the Defendant at Vanderbilt hospital.
Upon further questioning, Trooper Bush noted Mr. Peveler’s statement about the
Defendant striking the median on Goose Creek Bypass shortly before the crash.

       Williamson Medical Center paramedic Ian Gray treated the Defendant at the crash
scene. Mr. Gray generated a medical record for the Defendant that included a Glasgow
Coma Scale assessment. He explained that the Glasgow Coma Scale is an assessment tool
used to discern the likelihood of a traumatic brain injury by assessing a patient’s level of
consciousness. The Glasgow Coma Scale consists of fifteen points, with the maximum
score being fifteen and the minimum or lowest score three. The Assessment is based on
eye movement, verbal response, and motor response.

       Mr. Gray first interacted with the Defendant as he lay supine across the right front
passenger door of his Ram truck. The truck was on its side, and the Defendant’s head was
nearest the back windshield of the truck. Mr. Gray tapped on the back window and talked
loudly to the Defendant to ascertain whether the Defendant was responsive. The Defendant
opened his eyes and looked in Mr. Gray’s direction, but then turned his head back and
closed his eyes. Based upon this interaction, Mr. Gray found that the Defendant’s eye
movement was responsive to verbal stimuli. Mr. Gray assessed the Defendant’s ability to
speak when he asked the Defendant if he could move his arms and legs, and the Defendant
responded in the affirmative. Next, Mr. Gray assessed the Defendant’s motor response,
and the Defendant obeyed commands. Mr. Gray stated that a person in the twelve to fifteen
                                             9
range on the Glasgow Coma Scale “would be considered normal or they could have a mild
injury.” Mr. Gray assessed the Defendant as a fourteen on the scale.

        Mr. Gray explained that the assessment of a patient for head trauma is ongoing
throughout the interaction. Initially, he assessed the Defendant at fourteen. As he
continued to speak with the Defendant, however, he noted the Defendant was confused
about the sequence of events, so he adjusted the score to thirteen. Once the Defendant was
in the ambulance where Mr. Gray had a “full conversation” with the Defendant, there was
“less confusion,” so Mr. Gray adjusted the assessment to fifteen.

        Upon exiting his vehicle, the Defendant was able to move his extremities, which
Mr. Gray described as a “great sign.” The Defendant was able to stand up on his own and
follow Mr. Gray’s instructions. EMS placed a C-collar on the Defendant as a precautionary
measure, and the Defendant sat down on a stretcher. Once in the ambulance, EMS
administered saline to promote “human dynamic stability,” and obtained the Defendant’s
vital signs. Mr. Gray then did a trauma assessment of the Defendant, beginning with
checking the Defendant’s pupils. The Defendant’s pupils were constricted. Mr. Gray
stated that, in his work, he most commonly encounters constricted pupils in cases involving
the use of opiates. Mr. Gray also ran through a series of questions to determine if the
Defendant was oriented. Mr. Gray found that the Defendant was oriented to time, he knew
where he was, and he knew his name. The Defendant had some “temporary” confusion
about the collision itself. The Defendant displayed no classic signs of head injury such as
Cushing’s Reflex. Mr. Gray believed the Defendant was alert, oriented, and understood
“what was happening.” Mr. Gray was “confident in [the Defendant’s] mental state.”

       On cross-examination, Mr. Gray confirmed that he arrived at the scene at 3:40 p.m.
and departed about twenty minutes later to transport the Defendant to Vanderbilt
University Medical Center. The Defendant reported to Mr. Gray a pain assessment of eight
out of a possible ten.

       THP Trooper Joseph Olivas reported to Vanderbilt University Medical Center to
obtain a blood sample from the Defendant. At the time, Trooper Olivas was aware that
there had been an accident involving a fatality. Trooper Olivas completed basic Field
Sobriety training in the police academy. While working for the Ashland City Police
Department, he completed Advanced Roadside Impaired Driving Enforcement training.
Later, he completed Drug Recognition Expert training and became a DUI instructor.

       Trooper Olivas was in Cheatham County at the time Sergeant Cockrell dispatched
him to Vanderbilt University Medical Center. When seeking a blood draw, Trooper Olivas
generally prepared his paperwork in his car and gathered the necessary documents and
blood kit before entering the hospital. He notified security of the name of the patient from
                                            10
whom he was requesting consent for a blood draw and then proceeded to the nurses’ station
to obtain the patient room number. After the room was clear of medical personnel, he
would ask for permission to speak with the patient. Once with the patient, he spoke with
them briefly and then attempted to conduct the Horizontal Gaze Nystagmus (HGN)
because it required no mobility. He would continue to talk to the patient to see if he could
identify any type of impairment and then would ask for consent for a blood draw. If the
patient consented, he advised the patient on the Implied Consent Law and then the patient
can sign the form or not. If the patient signed the form, Trooper Olivas produced the
consent to the nurse assigned to draw the blood. After a patient signed the Implied Consent
Form, Trooper Olivas dated and initialed the document.

       Trooper Olivas followed this general procedure with the Defendant. Trooper Olivas
asked the Defendant about the crash, to which the Defendant had little response. He
informed the Defendant that there was a fatality. Trooper Olivas conducted the HGN test
and detected “a slight nystagmus” in both eyes. He then asked the Defendant if he had
taken any medications. The Defendant stated that he had a prescription for morphine.
Trooper Olivas asked the Defendant for consent to draw his blood, and the Defendant “was
hesitant at first.” Trooper Olivas advised the Defendant that state law required that he
provide a sample or his license would be suspended per the Implied Consent Law. He then
read the following language from the implied consent form:

       Are you willing to consent to provide a [blood] sample for chemical testing?
       If you refuse to supply a sample for blood or breath testing, no test will be
       conducted unless required by law or authorized by a search warrant or
       exigent circumstances. If you do not consent, the law permits me to apply
       for a search warrant for a blood and/or breath sample for chemical testing. If
       you refuse to provide a sample for testing, and the Court finds that you
       refused, TCA §55-10-407 requires that your license will be suspended for at
       least one (1) year and up to five (5) years, depending on your driving history.
       If you refuse, you may be ordered to install and keep an ignition interlock
       device on your vehicle for one (1) year or more.

       After being informed that there is probable cause that you have committed a
       crime which requires me to submit a sample of your [blood] for testing, and
       also having the consequences to such test explained to you, you: CONSENT
       TO PROVIDE A SAMPLE [or] REFUSE TO PROVIDE A SAMPLE

After Trooper Olivas read the Defendant the Implied Consent Law, the Defendant agreed
to have his blood drawn and signed the paperwork indicating his consent. Trooper Olivas
confirmed that, even after a patient signed consent, they could withdraw their consent.

                                             11
       Trooper Olivas notified the nurse and showed her the paperwork. The Defendant
extended his arm for the nurse to draw the blood, and she did so. The Defendant did not
exhibit any hesitation when providing his arm for the blood draw. Trooper Olivas always
reported to a hospital first to see if he could obtain consent from a patient. If not, he would
notify the investigating trooper at the crime scene to let them determine how he should
proceed.

      Trooper Olivas described the process for obtaining a warrant if a person declines to
consent to a blood draw. The process and the timeline were generally consistent with
Trooper Bush’s testimony.

       Trooper Olivas testified that the two most common indicators of opioid use, which
includes fentanyl, is constricted pupils and being “on the nod.” He explained that this
occurred when a person is in a conversation and will nod off with their head drooping,
become alert, and then nod off again.

       After the Defendant’s blood was drawn, Trooper Olivas obtained the Defendant’s
packaged blood sample, left the hospital, and called Trooper Bush to advise her that he had
the blood sample. A portion of their recorded telephone conversation was played.

       Bush:         All right. So what have you got for me?

       Olivas:       I got you some blood.

       Bush:         I appreciate you, buddy.

       Olivas:       Yeah, girl.

       Bush:         Did the guy say anything?

       Olivas:       Hold on. Let me – let me get this mask off and get in my car.
                     Hold on just a second, all right?

       Bush:         Oh, you’re good.

       Olivas:       So I asked him if he had been drinking. He stated no. I asked
                     him if he was taking any medication. He said he’s prescribed
                     some like - - some type of morphine or whatever it is.

       Bush:         Uh-huh.

                                              12
      Olivas:       So he was kind of hesitant about giving me blood until I said
                    look bro, here’s the deal, you are required by state law to give
                    blood right now. He was like why is that. I said because the
                    person you hit has passed away. So by law, you have to - - you
                    are required to give blood. He said all right, I’ll give blood.

                    So I did HGN on him – there was some – like I told Cock[]rell,
                    there was some - - you know, some HGN. But then again, I
                    don’t know if it was from the concussion or the head trauma,
                    you know, because he does have head trauma.

      Bush:         Yeah.

      Olivas:       That could easily rule that out.

      Bush:         Okay.

      Olivas:       Then there’s only been - - I mean, slurred speech, not really.
                    I mean, I didn’t really pick up on any major indicators of
                    impairment.

      Bush:         Okay.

      Olivas:       But then again, he’s laying on his back and it’s hard for me to
                    do anything.

      Bush:         Yeah. That what I was telling Cock[rell] and CID Gregory
                    when he called. I told them, like in the ambulance, I couldn’t
                    get close enough to really determine anything.

      Trooper Olivas stated that, at the time, the probable cause supporting a search
warrant would have been the motor vehicle crash where someone was killed, the
Defendant’s statement about a morphine prescription, and the slight nystagmus in his eyes.
Before seeking a search warrant, however, he would have spoken with Trooper Bush.

       After speaking with Trooper Bush, Trooper Olivas was dispatched to another fatal
accident in Dickson County. He explained that he was the only trooper on duty that shift
covering Cheatham County, Dickson County, and Humphreys County, when he was
dispatched to Vanderbilt University Medical Center to speak with the Defendant.



                                            13
        On cross-examination, Trooper Olivas confirmed that he did not include in his
report the results of the HGN task or that the Defendant was hesitant initially to consent to
the blood draw. During his interaction with the Defendant, he was wearing a uniform,
which included a firearm.

       On redirect, Trooper Olivas confirmed that the transcript entered into evidence was
not a transcript of his conversation with the Defendant but a transcript of his phone call
with Trooper Bush. He said something “similar” to the Defendant but did not recall his
exact words. Trooper Olivas confirmed that his interactions with the Defendant led him to
believe that the consent was voluntary. Trooper Olivas displayed no aggression or
attempted any type of force to get the Defendant to sign the consent form or force the
Defendant to extend his arm for the nurse to take the blood draw.

        Anna Blumhardt, a Vanderbilt University Medical Center Emergency Department
nurse, treated patients who enter through the emergency room by following doctor’s orders
for treatment as the patient is being assessed. Ms. Blumhardt had no law enforcement
training, but knew that if a search warrant was involved, she was to contact “the legal
team.” If approved, Ms. Blumhardt would proceed with whatever procedure was required
to comply with the warrant. Ms. Blumhardt performed the Defendant’s December 20, 2020
blood draw. Ms. Blumhardt identified her signature on the consent form provided by
Trooper Olivas.

        Ms. Blumhardt testified that to “do anything at all” she must have verbal consent
from a patient, or at the very least, implied consent. She stated that she would never force
any patient to undergo a blood draw or any other medical procedure. Ms. Blumhardt’s
practice when presented with a search warrant for a blood draw was to obtain verbal
consent from the patient before drawing the blood, regardless of whether the patient
provided law enforcement with consent. If the patient gave oral consent to Ms. Blumhardt,
she would proceed with the blood draw. Ms. Blumhardt stated that she did not recall this
specific event but that it is her standard practice to personally hear the consent from a
patient before proceeding with a blood draw pursuant to a search warrant. In order to give
consent, a patient must be alert and oriented. Therefore, Ms. Blumhardt assesses a patient’s
ability to give consent before asking for consent. If a person was not oriented and could
not answer routine questions about their name, birthday, and the time of day, Ms.
Blumhardt would note it in the medical chart under neurological assessment. The
assessment used was the Glasgow Coma Scale.

       The Defendant’s chart indicated that at 5:00 p.m. he was assessed at a fourteen and
exhibited signs of confusion. At 7:00 p.m., Ms. Blumhardt documented that the
Defendant’s Glasgow Coma Scale “had resolved” and that he was “alert and oriented.”
Ms. Blumhardt confirmed that a patient with a fourteen on the Glasgow Coma Scale could
                                             14
“still be pretty clear and coherent” and that she would perform a consent-based procedure
on the patient if they could provide their name, date of birth, the time of day and their
location.

       On cross-examination, Ms. Blumhardt testified that the Defendant was treated for
“closed fracture, multiple rib fractures on the left side, compression fractures of T-10, T-
11 and T-12, trauma.” The chart also indicated he had a large scalp hematoma with
abrasions. Ms. Blumhardt confirmed that the Defendant was administered pain medication
(Tylenol, Oxycodone and Acetaminophen) at around 9:00 p.m. At 5:26 p.m. he was
administered morphine with another dose an hour later. The Defendant reported a pain
score at 8:32 p.m. of seven out of a possible ten. The Defendant’s medical record also
indicated that the Occupational Therapist recommended continuing occupational therapy
due to cognitive deficits.

       On redirect, Ms. Blumhardt noted that she did not perform the first Glasgow Coma
Scale assessment recorded in the Defendant’s medical chart. She read a portion of the
physical exam assessment, “awake, alert, arrived on backboard via EMS, C collar in place,
uncomfortable appearing but in no acute distress.” The medical record reflected that
imaging was ordered and reviewed, showing “no acute intercranial findings.” Other notes
in the record read, “awake, spontaneously opens eyes”, “alert and oriented” to person,
place, and time. Results of the head CT revealed “no finding of acute infarct hemorrhage,
hydrocephalus, contusion or abnormal extra-axial collection.” Another entry noted that the
Defendant was “oriented to person, place and time, and well developed, well nourished
and in no distress.” The Defendant reported Suboxone, Naloxone, and Narcan use. These
medications reverse the effects of opioids.

      The parties stipulated to an October 2021 recording of a telephone conversation
between the Defendant and his mother.

       Mother:       I still have not found out from your lawyer if there was a
                     warrant.

       Defendant:    If what now?

       Mother:       If there was a warrant. For them to take the blood.

       Defendant:    If they had a warrant? No, they didn’t.

       Mother:       How do you know?



                                            15
       Defendant:    Because I – I allowed them – they don’t have to if you, if you
                     let’em, I mean.

       Mother:       Well, he said that was very important.

       Defendant:    Like, if I had not agreed to it – which I didn’t verbally agree,
                     but I – I just submitted my arm and then – did y’all even see on
                     that thing like I misspelled my name and it looks so sloppy
                     even for me.

       Mother:       No, I didn’t notice that.

       Defendant:    But it’s signed with one L not two. And even for me it looks
                     sloppy. It doesn’t even look like I signed it.

       Mother:       What was that on?

       Defendant:    Um, whatever I signed that night to let them do the blood draw.


        Metro Nashville Police Department Lieutenant James Williams oversaw the
investigation section of the traffic division. Lieutenant Williams explained the process of
assisting another agency in executing a search warrant. Typically, the agency seeking
assistance notified him that they had an agent at Vanderbilt University Medical Center and
needed a search warrant. Depending on the situation, the agent may drive from the hospital
to Nashville or Lieutenant Williams may send one of his officers to the hospital “to be there
present with the person that they want to get the blood from.” The Metro officer would
then go with the agent to the night court commissioner’s office and assist in typing up a
search warrant with a Davidson County template and present it to either a General Sessions
judge or a night court commissioner. He estimated that a typical response time would be
thirty minutes “to an hour or longer.” If there are no other calls pending, however, it could
be within ten minutes.

      Lieutenant Williams stated that if someone contacted him directly, rather than going
through the non-emergency number to be routed to the Traffic Division, the process may
be shorter; however, he did not know Trooper Olivas or Sergeant Cockrell. He had met
Trooper Bush before but did not believe she knew his contact information. He stated that
he would normally send one officer, but some circumstances require two, which further
delayed the process.



                                             16
        He estimated ten to fifteen minutes depending on traffic to get to the night court
commissioner’s office and twenty to twenty-five minutes to fill out the paperwork. He
estimated a total time of thirty to forty-five minutes to prepare the search warrant and get
it signed by the night court commissioner on a Sunday night. Another ten to fifteen minute
drive back to Vanderbilt University Medical Center, depending on traffic and then, once at
the hospital, the officers would need to locate a charge nurse. The officer would provide
the nurse with a copy of the search warrant and supporting documentation to fax to the
hospital’s legal department and then wait for an approval from the legal department. The
most recent vehicular homicide case Lieutenant Williams had dealt with involved forty-
five minutes for the legal department to review the search warrant. He recalled another
incident the month before when the review took over an hour and a half and then the legal
department did not honor the search warrant, and the hospital refused to draw the blood.

       If the legal department approved the warrant, law enforcement must wait for an
available nurse to take the blood. The officer will have the patient sign the waiver form
and then remain in the room to observe the blood draw. This takes approximately five
minutes.

       On cross-examination, Lieutenant Williams testified that, in his experience, the
nurses at Vanderbilt University Medical Center will no longer draw blood based on patient
consent. Because of this, his approach at the time of the hearing was to have officers seek
a warrant rather than seek consent from the patient. He confirmed that he had never turned
away any agency seeking help in getting a search warrant.

       On redirect, Lieutenant Williams confirmed that patients can leave the hospital at
any time and that hospital security will not assist in detaining a suspect. He confirmed that
his department was short-staffed. Lieutenant Williams recalled a case when the suspect
left Vanderbilt University Medical Center while he was trying to obtain a warrant to draw
blood. He recalled another incident involving two vehicular homicide suspects with active
warrants who were being treated at Vanderbilt University Medical Center and were
released with no notification to the police department.

        Tennessee Bureau of Investigation (“TBI”) Agent April Bramlage worked as a
forensic scientist testing blood and urine for the presence of drugs or alcohol. She
generated the toxicology report related to this case. Her analysis revealed fentanyl at a
level of two nanograms per milliliter, clonazepam at a level of twenty nanograms per
milliliter, seven amino clonazepam at a level of forty-seven nanograms per milliliter.

       Agent Bramlage explained that fentanyl is a synthetic opioid. The dissipation of
alcohol has been studied over the course of the last eighty years extensively; however,
fentanyl has not been studied in the same way. She explained that people metabolize
                                             17
fentanyl “very differently depending on their genetics.” With alcohol dissipation,
retrograde extrapolation is used to estimate the blood alcohol content at an earlier point in
time. Because of the difference in the way our bodies metabolize alcohol and drugs,
retrograde extrapolation was not a scientifically accepted method of estimating the amount
of fentanyl in a person’s blood. Agent Bramlage followed TBI policies and guidelines for
Toxicology. The TBI procedure is to report anything greater than one nanogram of
fentanyl in a blood sample.

       Agent Bramlage said that the “half-life,” or the rate at which a drug leaves the body,
for fentanyl was three and a half hours although that depended on how the fentanyl had
been administered and could be seven hours if administered through a patch. She estimated
the half-life for clonazepam was twenty to forty hours.

        After hearing the evidence, the trial court denied the motion to suppress, finding
that the Defendant had consented to the blood draw.

                                      B. Bench Trial
       At the Defendant’s May 24, 2022 bench trial on these charges, the State announced
that the parties had reached an agreement for Counts 7 and 8 of the indictment, reckless
aggravated assault with a deadly weapon. The named victims for those two counts are Mr.
Danylov and V.D. The Defendant pleaded guilty to the reduced charge of misdemeanor
reckless endangerment in exchange for concurrent sentences of eleven months and twenty-
nine days to be served on probation. These sentences were to run consecutively to any
convictions resulting from the trial. The trial court accepted the terms of the settlement
and the Defendant’s guilty plea.

        The trial proceeded as to Count 1 - vehicular homicide of Olga Danylov, Count 2 -
vehicular homicide by recklessness of Olga Danylov, Count 3 - reckless aggravated assault
resulting in the death of Olga Danylov, Count 4 - vehicular homicide of N.D., Count 5 -
vehicular homicide by recklessness of N.D., Count 6 - reckless aggravated assault resulting
in the death of N.D., Count 9 - vehicular homicide with a prior DUI conviction (Olga
Danylov), and Count 10 - vehicular homicide with a prior conviction for DUI (N.D.).

      Two witnesses testified for the State, THP Trooper Bush and TBI Agent Bramlage.
Both witnesses testified at the trial consistently with their suppression hearing testimony.

       After hearing the evidence, the trial court found the Defendant guilty on all counts.
The trial court also made the finding that the Defendant was arrested for DUI on December
2, 2019, and convicted on May 12, 2020. Therefore, at the time of the crash, he had a prior
DUI arrest and conviction.

                                             18
      The Defendant waived a sentencing hearing, and the parties submitted an agreed
upon sentence. The trial court ordered the Defendant to serve a twenty-year sentence in
the Tennessee Department of Correction with eleven months and twenty-nine days to be
probated after the conclusion of the Defendant’s twenty-year sentence. It is from this
judgment that the Defendant appeals.

                                         II. Analysis

        The Defendant challenges the trial court’s denial of his motion to suppress. Our
standard of review for a trial court’s findings of fact and conclusions of law on a motion to
suppress evidence is set forth in State v. Odom, 

 (Tenn. 1996). Under this
standard, “a trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” 

. As is customary, “the prevailing party in
the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 

 (Tenn. 2000) (quoting State v. Keith, 

 (Tenn. 1998)).
Nevertheless, this Court reviews de novo the trial court’s application of the law to the facts,
without according any presumption of correctness to those conclusions. See State v.
Walton, 

 (Tenn. 2001); State v. Crutcher, 

 (Tenn.
1999). The trial court, as the trier of fact, is able to assess the credibility of the witnesses,
determine the weight and value to be afforded the evidence, and resolve any conflicts in
the evidence. Odom, 

. In reviewing a trial court’s ruling on a motion to
suppress, an appellate court may consider the evidence presented both at the suppression
hearing and at the subsequent trial. State v. Henning, 

 (Tenn. 1998).

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches
and seizures. Tennessee’s constitutional protections regarding searches and seizures are
identical in intent and purpose to those in the federal constitution. State v. Turner, 

 (Tenn. 2009). “[A] warrantless search or seizure is presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless
the State demonstrates that the search or seizure was conducted pursuant to one of the
narrowly defined exceptions to the warrant requirement.” State v. Yeargan, 

 (Tenn. 1997). Here, the State asserts that two exceptions to the warrant
requirement apply in this case: consent and, alternatively, exigent circumstances.

                                          A. Consent

       The Defendant asserts that the trial court erred by denying his motion to suppress
the evidence of drugs found in the Defendant’s blood because he did not voluntarily
consent to the blood draw. The State responds that the trial court carefully considered the
                                               19
totality of the circumstances and that the evidence does not preponderate against the trial
court’s findings of fact and that the trial court correctly applied the law to those facts when
it denied the Defendant’s motion to suppress. We agree with the State.

       The consent exception to the warrant requirement applies when a person voluntarily
consents to a search. Schneckloth v. Bustamonte, 

 (1973); State v.
Berrios, 

 (Tenn. 2007). The State has the burden to prove that “consent
was, in fact, freely and voluntarily given.” Schneckloth, 

 (quoting Bumper
v. North Carolina, 

 (1968)). “The pertinent question is . . . whether the
[individual’s] act of consenting is the product of an essentially free and unconstrained
choice. If the [individual’s] will was overborne and his or her capacity for self-
determination critically impaired, due process is offended.” State v. Cox, 

 (Tenn. 2005) (citing Schneckloth, 

); see also Berrios, 

. Answering this question of fact requires consideration of the totality of the
circumstances in each case. Schneckloth, 

; Cox, 

.
Relevant circumstances include the time and place of the encounter, level of hostility, if
any, between the police and the individual, and the number of officers present, as well as
the individual’s “age, education, intelligence, knowledge, maturity, sophistication,
experience, prior contact with law enforcement personnel, and prior cooperation or refusal
to cooperate with law enforcement personnel.” Cox, 

 (internal quotation
marks omitted). The individual’s “[k]nowledge of the right to refuse consent” is also a
circumstance that should be considered. 

 (citing Schneckloth, 

).

       After hearing the evidence, the trial court made the following findings relevant to
the issue of consent.

       [T]he evidence establishes that after [the Defendant] regained consciousness
       with assistance, he was able to get out of the truck. He was able to stand on
       his own. He was able to sit on the gurney before being placed in the
       ambulance. He was able to talk to emergency personnel and answer
       questions from emergency personnel. He answered questions from Trooper
       Bush [and] provided her with his driver’s license. He was able to tell her
       who he was; gave her his name; told her where he was; gave her the direction
       of his travel.

             But he wasn’t able to tell her what happened in connection with the
       accident. The testing that was undertaken regarding the application of the
       Glasgow Coma Scale revealed that he was 14 or 15, which means either
       normal or slight impairment of brain function. He followed the instructions
       of EMS personnel on the scene. He answered the questions of EMS
       personnel regarding who he was; where he was; what time it was. He
                                              20
exhibited no evidence of amnesia, which is an indicator of traumatic brain
injury. His blood pressure, his pulse, and respiration at the scene were within
acceptable limits. He did indicate that he had an elevated pain level, which
he subjectively characterized as being an eight of 10, with 10 being the most
pain, zero being no pain. EMS personnel Ian Gray was confident of his
ability and his mental state at the time he was released to personnel at
Vanderbilt Emergency Medical Center. He could sign papers. He was fully
aware of what was going on when he arrived at the Vanderbilt University
Emergency Medical Center. He was able to move his extremities and the
transport took less than 30 minutes, it was timed at 29 minutes.

        He displayed only slight nystagmus when he was examined by
Trooper Olivas. And before his blood was drawn -- and this is important to
the Court -- the Registered Nurse, Anna Blumhardt, who did the draw, took
a lot of care to ensure that he was consenting to the draw. She will not force
a patient to do something that they do not agree to, even if the officer says
there’s consent, she still wants to hear it from the patient. And if the patient
says “no”, [ ] she will not make the draw. To give consent she requires that
the patient be alert, oriented, and not confused. In other words, they have to
know who they are; what their date of birth is; what time it is; and where they
are. And she specifically ask those questions, and if the patient can’t answer
those questions, [ ] she documents it in the chart.

       And further [ ] the telephone conversation between [the Defendant]
and his mother when he was confined to the Rutherford County jail, confirms
that he knew that the Trooper had no warrant. He allowed them to draw the
blood. And he told his mother, he said, you don’t have to have a warrant if
you agree to it. He said I signed something in order to let them make the
draw.

       . . . .

      Both the State and the Defense agree then that the factors to be
considered in determining whether consent was voluntary, intelligent,
unequivocal, are:

        1. The time and the place of the encounter. Well, this occurred in the
late afternoon on December 20th, 2020, at the Vanderbilt University Medical
Center, in a room where Trooper Olivas, Nurse Burkhart [sic] and [the
Defendant] were located.

                                      21
       Second I’m to consider whether it occurred in a public or a secluded
place -- and this is I would characterize a non-public place;

       How many officers were involved? In this case; one, that’s Officer
Olivas[.]

       The degree of hostility displayed during the incident. The evidence
does not establish that Officer Olivas was hostile toward [the Defendant] in
anyway. In fact, he explained his statement in the course of testimony is to
be light-hearted. He wants cooperation, so hostility is not going to get him
what he wants. He wants cooperation from [the Defendant]. So there was
no evidence of hostility.

      He was wearing a firearm.

      He did request consent.

      He did initiate the contact.

       [The Defendant], if the Court’s memory is correct, was 37 years old
at the time of the encounter with [Trooper] Olivas. The Court has no
information regarding [the Defendant’s] education, his intelligence,
knowledge, maturity, sophistication and experience. We do know, however,
that he has had prior contact with law enforcement personnel, because he has
been convicted of a prior DUI. And at some point, the Court gained
information that it was based on drugs not alcohol[.]

      . . . .

       So [the Defendant] had a prior encounter with law enforcement
involving driving under the influence circumstance and that involved the use
of drugs not alcohol.

       The Court’s got to consider his physical condition. The evidence in
this case is overwhelming that [the Defendant], notwithstanding the violent
nature of the impact involved in this case, was in excellent physical
condition. I mean, he could stand. He could sit on the gurney. He could
move his extremities. And by the time he got to Vanderbilt, his only real
complaint was his pain. That’s legitimate, cause he had some broken ribs,
he had some fractured vertebras. We have no evidence of any adverse effects
of medication on his judgment and reading -- and reasoning at the time the
                                     22
       draw was taken. And contrary evidence indicates from Nurse Burkehart’s
       [sic] examination of him that he was completely functional, completely
       oriented to time and place and circumstance.

               And then we have to consider the suspect’s knowledge of the right to
       refuse consent because he was told by Trooper Olivas that he did not have
       that right. On the other hand he, according to what he said to his mother, he
       did, he did consent. He signed the paper saying that he consented so when
       the Court weighs all of these factors the Court concludes that consent in this
       case was freely and voluntarily given. And for that reason, I decline to
       suppress the blood draw on that ground.


        The evidence does not preponderate against the trial court’s findings. At the time
of this offense the Defendant, a thirty-seven-year-old man, was serving a probation
sentence related to driving under the influence of drugs. Thus, he was familiar with the
criminal justice system and, more specifically, had previous experience with interactions
with police related to driving while under the influence of drugs. At the scene, the
Defendant was evaluated as a fourteen on the Glasgow Coma Scale and was able to
communicate with medical personnel and Trooper Bush. He knew his name, provided his
phone number and driver’s license to Trooper Bush, and stood up to exit his truck and sit
on the gurney. At the hospital, the Defendant continued to respond appropriately to
questions and conveyed information about his pain. Trooper Olivas was in uniform and
wore a firearm at the hospital, but nothing about the interaction indicated there was a show
of hostility or force with respect to Trooper Olivas’s interaction with the Defendant. The
Defendant showed some hesitation initially but then provided consent for the blood draw
and signed the implied consent form indicating his consent. Separately, he consented when
Nurse Blumhardt inquired about consent for the blood draw. Finally, in a phone call with
his mother he demonstrated his understanding of the law by correcting his mother and
telling her that an officer did not need a search warrant if one consented to the blood draw.

       We acknowledge the Defendant’s injuries from the crash were significant; however,
in considering the totality of the circumstances, we conclude that the Defendant provided
consent for the blood draw. Therefore, the trial court properly denied the motion to
suppress. The Defendant is not entitled to relief as to this issue.

                               II. Exigent Circumstances

       The State argues, alternatively, that exigent circumstances existed to justify a
warrantless blood draw. A blood draw conducted at the behest of a law enforcement officer
for law enforcement purposes is a search subject to constitutional protection. Birchfield v.
                                             23
North Dakota, 

 (2016); Missouri v. McNeely, 

 (2013); State v.
Reynolds, 

 (Tenn. 2015). However, under the Fourth Amendment’s
exception for exigent circumstances, in some situations a warrantless blood draw may be
constitutionally permissible in order to prevent the destruction of evidence due to metabolic
dissipation. McNeely, 141 U.S. at 153; Schmerber v. California, 

(1966). Whether a warrantless blood draw based upon exigent circumstances is
constitutionally permissible depends on a “case-by-case assessment” in light of the totality
of the circumstances. McNeely, 141 S. Ct. at 152.

        A review of exigent circumstances in Tennessee case law highlights key distinctions
that are useful in the determination at hand. There are several factors that have been
considered when assessing the issue of exigent circumstances, including: (1) The number
of officers present and available to assist in the procurement of a search warrant, State v.
Kennedy, M2013-02207-CCA-R9-CD, 

 at * 10 (noting the presence of
multiple officers who all could have assisted in obtaining a warrant); State v. Wells, No
M2013-01145-CCA-R9-CD, 

, at *5 (The trial court found that five
officers were simultaneously investigating the incident); State v. Martin, No. M2016-
00615-CCA-R3-CD, 

, at * 4 (Trooper testified that he could have sought
assistance from local law enforcement); State v. Cates, E2014-01322-CCA-R3-CD, 

, at *8 (Considered that eleven Elizabethton city police officers responded to
the scene); (2) The time at which officers, through diligent investigation, developed the
probable cause necessary for a search warrant; State v. Kennedy at *10 (noting the delay of
one hour and thirteen minutes during which no attempt was made to obtain a warrant);
State v. Walker, E2013-01914-CCA-R3-CD at *5 (“By the time [the investigating officer]
was able to fully question the Defendant, over two hours had passed since the time of the
accident” supporting an exigency); State v. Brown, W2014-00162-CCA-R9-CD, 

, at *5 (noting the presence of two officers on scene, one of whom “did not
participate in the investigation of the accident or cleaning up the scene.”); State v. Martin
at * 4 (acknowledging that the investigating officer did not develop probable cause until
two and a half hours after the crash); State v. Oaks, E2017-02239-CCA-R3-CD, 

 at *18 (Trooper developed probable cause of the defendant’s intoxication within
only a few minutes of his arrival on the scene.) (3) The delay that would have been caused
by the procurement of a search warrant; State v. Kennedy at *10 (noting the absence of any
facts in evidence to support the alleged delay that would have occurred if a warrant had
been sought); State v. Wells at *12 (“a magistrate was on duty in a building ten minutes
from the place where the defendant was apprehended [and] it took a magistrate an average
of ten minutes to review a warrant.”); State v. Cates at *8 (“two judges lived within a few
miles of the accident and were willing to review and sign search warrants at any hour of
the night”); State v. Brown at *5 (“Officer Kirby testified that it usually takes him two and
a half hours to obtain a warrant”); State v. 

 (noting that the magistrate’s office
was only a “ten-minute drive from the hospital where the blood draw was taken.”); State
                                              24
v. Martin at * 4 (noting the investigating officer’s testimony that procuring a search warrant
would have taken at least one hour); (4) The extent of other duties which required the
attention of law enforcement officers; State v. Kennedy at *10 (Noting that one officer
leaving to obtain a warrant “would not have left the streets of Fairview any less safe than
they were during the defendant’s refusal to perform field sobriety tests.”); State v. Walker
at *13 (Consideration of duties required at the scene that prevented the state trooper from
leaving to obtain a warrant); State v. Cates at *8 (considering the number of the responding
officers on the scene to investigate); State v. Brown at *5 (noting the existence of a car
crash and a necessary scene cleanup); State v. Martin at *12 (considering that the
investigating officer was required to complete his investigation before making contact with
the defendant and developing probable cause); (5) The degree to which the situation was
routine or extraordinary, State v. Brown at * 5 (noting that while the accident involved
three cars, the defendant was not injured in any way); State v. Martin at *14 (citing

); and (6) The imminence of the dissipation of intoxicants in the driver’s
bloodstream, State v. Cates at *25 (citing 

); State v. 

; State
v. Martin at *13 (“in some situations a warrantless blood draw may be constitutionally
permissible in order to prevent the destruction of evidence due to the metabolic dissipation
of alcohol in blood stream”).

       The trial court made the following findings as to exigency:

              State of Tennessee argues that there are exigent circumstances
       involving this case that would excuse the issuance of a warrant. The Court
       has examined the testimony in order to see what exigent circumstances
       appear to be present. From the witnesses, the officers knew that Mr. Andrews
       pulled onto Peytonsville Road in front of the vehicle being driven by Mr.
       Peveler. As he did, hit the median on three or more occasions and he swerved
       within his lane of travel. As he traveled on Goose Creek Bypass, he swerved
       within his lane of travel. He ultimately crossed the double yellow line at 22
       degrees. He missed a white Nissan Rogue[,] ultimate[ly] struck the front of
       the white Infiniti SUV. His conduct was observed by Mr. Peveler who
       provided the statement wherein it indicates that he saw Mr. Andrews nodding
       off, seeming to go to sleep at the wheel. Further, it was known that Mr.
       Andrews never activated his brake lights as he veered into the oncoming lane
       of travel.

              Law enforcement personnel on the scene included Captain Rodney
       King, Deputy Hunter Bagsby[,] Sergeant Steve Mitchell, a deputy trainee
       Ethan Langford, one or two other personnel from the Williamson County
       Sheriff’s Department; three troopers, including Trooper Bush, Trooper Hser,
       and the CIRT investigator, Ricky Alexander.
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              Trooper Bush had seven plus years of experience -- excuse me in the
       seven plus years of his experience during the time that Officer Bagsby has
       been with the Williamson County Sheriff’s Department he has obtained a
       search warrant from for blood on 25 to 50 occasions. And during the time
       that Bagsby was on scene, he had no knowledge of any officer seeking a
       search warrant for the blood of [the Defendant]. On arrival at the scene he
       saw [the Defendant] . . . standing and then sitting on the gurney. He was
       unaware of the fact that a warrant could be obtained from a Circuit Judge in
       Williamson County that could be executed in another county. That has been
       the law as the Court recalls for a number of years now.

              Trooper Olivas had obtained blood from persons at Vanderbilt on
       three occasions with a search warrant. And he knows the necessary steps in
       order to take in order to get a warrant. It takes approximately an hour.

              In addition, when looking at the question of exigent circumstances,
       the Court is taking into consideration the fact that Metro Nashville was
       available to provide assistance to the Highway Patrol and/or the Williamson
       County Sheriff’s Department to obtain a warrant on an expedited basis. If
       they are called Metro will start the process of preparing the warrant. On the
       day in question, there were two magistrates available to consider an
       application for a warrant.

               The court has read the cases that have been supplied this Schmerber
       case, the McNeeley case and the more recent case on the question of exigent
       circumstances. And the facts of this case simply do not qualify. We had too
       many officers on the scene; too many individuals who were knowledgeable
       on how to go about getting a warrant. We’ve got four circuit judges in
       Williamson County that are available to issue warrants on application from
       law enforcement. The facts of this case simply do not support a finding that
       exigent circumstances would excuse the requirement for a warrant.


       The trial court assessed the totality of the circumstances and concluded that there
were not exigent circumstances that would negate the requirement of a search warrant to
obtain the Defendant’s blood. The evidence does not preponderate against the trial court’s
findings. In determining that exigent circumstances did not exist, the trial court found that
there were “too many officers on the scene; too many individuals who were knowledgeable
on how to go about getting a warrant. We’ve got four circuit judges in Williamson County
that are available to issue warrants on application from law enforcement.” The evidence
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presented showed that there were numerous officers at the crash site, Metro Police
Department was available to assist if requested, and a magistrate was an approximately
ten-minute drive from the hospital. See, State v. Turner, No. E2013-02304-CCA-R3-CD,
 

, at *7 (Tenn. Crim. App. Dec. 30, 2014) (refusing to apply exigent
circumstances exception when there were “at least five Johnson City police officers that
responded to the scene”); State v. Wells, No. M2013-01145-CCA-R9-CD, 

, at *5 (Tenn. Crim. App. Oct. 6, 2014) (upholding trial court’s finding that no
exigency existed when, among other things, “five officers were simultaneously
investigating the incident”).

        The burden is on the State to prove that a warrantless seizure was constitutionally
permissible, State v. Nicholson, 

 (Tenn. 2006), and the State failed
to show that exigent circumstances justified a warrantless seizure in this case. We conclude
that the circumstances were not exigent, as the record demonstrates that police could have
“reasonably obtain [ed] a warrant . . . without significantly undermining the efficacy of the
search.” McNeely, 

.

                                      III. Conclusion

       Based on the foregoing reasoning and authority, we affirm the trial court’s denial of
the Defendant’s motion to suppress the evidence of drugs in the Defendant’s blood because
the Defendant consented to the blood draw. We also affirm the trial court’s finding that
exigent circumstances needed to forgo a search warrant for the Defendant’s blood were not
present in this case. Accordingly, we affirm the judgments of the trial court.



                                              ____________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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