State of Tennessee v. Christopher Hembrook ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 24, 2012 Session
STATE OF TENNESSEE v. CHRISTOPHER HEMBROOK
Appeal from the Circuit Court for Van Buren County
No. 1490C Larry B. Stanley, Jr., Judge
No. M2011-01358-COA-R3-CV - Filed July 31, 2012
Defendant, who was arrested for DUI and subsequently refused to submit to a blood test,
appeals the revocation of his driver’s license, contending that he was not properly
informed of the consequences of refusal to take the test. We hold that the defendant was
adequately advised under the circumstances presented and affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.
Cindy H. Morgan, Sparta, Tennessee; and Howard Luxon Upchurch, Pikeville,
Tennessee, for the Appellant, Christopher Hembrook.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor
General; Rachel Habibe Jrade-Rice, Mark A. Fulks, and Clarence E. Lutz, Assistant
Attorneys General, for the Appellee, the State of Tennessee.
OPINION
B ACKGROUND
On February 15, 2011, Christopher Hembrook (“Hembrook”) was arrested and
charged with driving under the influence of alcohol in violation of Tenn. Code Ann. § 55-
10-401. Hembrook was taken to the Van Buren County Sheriff’s office where the
arresting officer read Hembrook a form entitled, “Tennessee Implied Consent
Advisement for Use in Mandatory Test Cases Per T.C.A. § 55-10-406(f).” The form
-1-
advised Hembrook, inter alia, that his driving privileges might be revoked if he failed to
submit to a chemical test to determine the alcohol or drug content of his blood. Hembrook
refused to submit to the test and was subsequently charged with violating Tenn. Code
Ann. § 55-10-406.
The General Sessions Court for Van Buren County held a preliminary hearing on
April 14 at which it bound the DUI charge over to the grand jury and revoked
Hembrook’s license “pursuant to 55-10-406.”1 On April 21, Hembrook filed a petition
for certiorari in the Circuit Court for Van Buren County, asserting that the revocation of
his license was improper because the arresting officer had not properly advised him of the
consequences of refusing the test. Hembrook contended that the form read to him by the
arresting officer was “not applicable to him” and that the circumstances of his arrest did
1
Tenn. Code Ann. § 55-10-406(a) states in pertinent part:
(4)(A) Except as required by subsection (f), court order or search warrant, if such person, is
placed under arrest, requested by a law enforcement officer to submit to either or both tests,
advised of the consequences for refusing to do so, and refuses to submit, the test or tests to
which the person refused shall not be given, and the person shall be charged with violating
this subsection (a). The determination as to whether a driver violated this subsection (a)
shall be made at the driver's first appearance or preliminary hearing in the general sessions
court, but no later than the case being bound over to the grand jury, unless the refusal is a
misdemeanor offense in which case the determination shall be made by the court which
determines whether the driver committed the offense; however, upon the motion of the state,
the determination may be made at the same time and by the same court as the court disposing
of the offense for which the driver was placed under arrest. If the court finds that the driver
violated this subsection (a), except as otherwise provided in subdivision (a)(5), the driver
shall not be considered as having committed a criminal offense; however, the court shall
revoke the license of the driver for a period of:
(i) One (1) year, if the person does not have a prior conviction for a violation of § 55-10-401,
§ 39-13-213(a)(2), § 39-13-218, § 39-13-106, or § 55-10-418, in this state, or a similar
offense in any other jurisdiction;
(ii) Two (2) years, if the person does have a prior conviction for an offense set out in
subdivision (a)(4)(A)(I);
(iii) Two (2) years, if the court finds that the driver of a motor vehicle involved in an
accident, in which one (1) or more persons suffered serious bodily injury, violated this
subsection (a) by refusing to submit to such a test or tests; and
(iv) Five (5) years, if the court finds that the driver of a motor vehicle involved in an accident
in which one (1) or more persons are killed, violated this subsection (a) by refusing to submit
to such a test or tests.
-2-
not “implicate mandatory chemical testing under § 406(f).”2 On April 25, the State filed a
motion to dismiss the petition for certiorari3 ; on the same day Hembrook appealed the
general sessions court judgment to the circuit court.
On May 16, the circuit court entered an order on Hembrook’s appeal of the
revocation of his license. The court found that “although the defendant was
‘misinformed’ or read provisions that [were] inapplicable to his position, the Defendant
was advised that he would lose his license if a Judge found that he refused a chemical
test. . . that the Defendant did refuse the sample testing although made aware of the
consequences of refusal. . . [and] that the requirements were met for the Defendant to
have his driver’s license revoked.” The court upheld the revocation of his license.
Hembrook filed a timely appeal and raises the following issue for our review:4
Whether the admonitions read to Defendant were proper and sufficient
pursuant to Tenn. Code Ann. § 55-10-406 to require the revocation of
Defendant’s license for one year.
2
Tenn. Code Ann. § 55-10-406(f)(1) states:
If a law enforcement officer has probable cause to believe that the driver of a motor vehicle was
involved in an accident resulting in the injury or death of another has committed a violation of
§ 39-13-213(a)(2), § 39-13-218, or§ 55-10-401, the officer shall cause the driver to be tested for
the purpose of determining the alcohol or drug content of the driver’s blood. The test shall be
performed in accordance with the procedure set forth in this section and shall be performed
regardless of whether the driver does or does not consent to the test.
Tenn. Code Ann. § 55-10-406(f)(1) (emphasis added). It is undisputed that Hembrook was not involved in
an accident, and that he did not cause injury or death to another.
3
There is nothing in the record to suggest that the motion to dismiss was ruled upon.
4
Although not specifically asserted as a separate issue on appeal, the Attorney General notes in
footnote 1 of its brief that “the law is somewhat unsettled on the question of whether an appeal from a
judgment finding a violation of the implied consent law is properly made to this Court or to the Court of
Criminal Appeals.” Our Supreme Court noted in State v. Collins, 166 S.W.3d 721 (Tenn. 2005), that the
language in Tenn. Code Ann. § 55-10-406(a)(3), now codified at Tenn. Code Ann. § 55-10-406(a)(4)(A),
provides that “revocation of a driver’s license under the circumstances applicable to Collins does not
constitute a criminal offense, as it confers only an administrative penalty.” 166 S.W.3d at 727. See also State
v. Pinchak, 277 S.W.3d 912, 915 (Tenn. Crim. App. 2005) (“The statute delineating the implied consent law
is not ‘a criminal statute, but a statute which confers an administrative penalty.’) Hembook’s appeal is
properly before this Court.
-3-
The issue raised is a question of law; consequently, we review the trial court’s ruling de
novo with no presumption of correctness. Tenn. R. App. P. 13(d); see also Cumberland
Bank v. G & S Implement Co., Inc., 211 S.W.3d 223, 228 (Tenn. Ct. App. 2006).
D ISCUSSION
Hembrook contends that his license should not have been revoked because “he was
not properly informed of the potential consequences for failing to take the test.” He
asserts that, since he was not involved in an accident and was arrested only for driving
under the influence, the form from which he was advised of the consequences of failure to
take the test was not applicable to him; thus, he was not properly advised as required by
Tenn. Code Ann. § 55-10-406(a)(3). We do not agree.
Any person who drives a motor vehicle in Tennessee “is deemed to have given
consent to a test or tests for the purpose of determining the alcoholic content of that
person’s blood.” Tenn. Code Ann. § 55-10-406(a)(1). The statute provides that the court
has authority to revoke the driver’s license of a driver who refuses to submit to an alcohol
or drug test if the driver was advised of the consequences of refusing to take the test. See
Tenn. Code Ann. § 55-10-406(a)(3).5 Where the driver has been involved in an accident
resulting in injury or death, Tenn. Code Ann. § 55-10-406(f)(1) provides that the officer
“shall cause the driver to be tested for the purpose of determining the alcohol or drug
content of the driver’s blood.”
The form read to Hembrook stated in pertinent part:
There exists probable cause to believe you were driving or in physical
control of a motor vehicle while under the influence of alcohol and/or drugs
(DUI) and the vehicle you were operating was involved in a crash resulting
5
Tenn. Code Ann. § 55-10-406(a)(3) states in pertinent part:
Any law enforcement officer who requests that the driver of a motor vehicle submit
to either or both tests authorized pursuant to this section, for the purpose of determining the
alcohol or drug content, or both, of the driver’s blood, shall, prior to conducting either test
or tests, advise the driver that refusal to submit to the test or tests will result in the
suspension by the court of the driver’s operator’s license . . . The court having jurisdiction
of the offense for which the driver was placed under arrest shall not have the authority to
suspend the license of a driver . . . who refused to submit to either or both tests, if the driver
was not advised of the consequences of the refusal.
Tenn. Code Ann. § 55-10-406(a)(3) (emphasis added).
-4-
in the injury or death of another. As required under T.C.A. § 55-10-406(f),
I am hereby requesting that you submit to a chemical test or tests to
determine the alcohol and/or drug content of your blood.
As required by State law I must advise you that if you refuse to submit to
either or both tests, you will be charged with the offense of violation of the
implied consent law. If the judge finds you guilty of this separate offense
your driver’s license will be suspended for a period of at least one year.
(Italics added).
Whether Hembrook was arrested only for DUI or was also involved in an accident
causing injury or death is inconsequential in determining if he was properly advised of the
consequences of failing to submit to the blood test, as required by Tenn. Code Ann. § 55-
10-406(a)(3). The record shows that the arresting officer requested that Hembrook
submit to a test, that Hembrook was advised of the consequences of refusal to take the
test and refused it, and that, as a result, his license was revoked. The language quoted in
italics above was accurate and complies with the requirement of Tenn. Code Ann. § 55-
10-406(a)(3) that Hembrook be advised of the consequences of refusing the test.6
Hembrook was properly notified, and the trial court did not err by revoking Hembrook’s
driver’s license.
C ONCLUSION
For the foregoing reasons, the judgment of the Circuit Court of Van Buren County
is affirmed.
___________________________________
RICHARD H. DINKINS, JUDGE
6
See also State v. Collins, 166 S.W.3d 721, 727 (Tenn. 2005) (holding Tenn. Code Ann. § 55-10-
406(a)(2), now codified at § 55-10-406(a)(3) sets “general parameters” and requires that a driver be informed
that refusal to be tested will result in a license suspension.
-5-