State v. Choate
| Decision Date | 07 December 1983 |
| Citation | 667 S.W.2d 111 |
| Parties | STATE of Tennessee, Appellee, v. Billy J. CHOATE, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Edward J. Gross, Nashville, for appellant.
William M. Leech, Jr., Atty. Gen., Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., James F. Walsh, Asst. Dist. Atty. Gen., Nashville, for appellee.
The defendant, Billy J. Choate, was convicted of driving while under the influence of an intoxicant and was sentenced to serve one hundred twenty (120) days in the Davidson County Workhouse and fined fifty dollars ($50). On appeal the defendant contends that the trial court erred in overruling his motion to dismiss the D.U.I. charge. We disagree and affirm the judgment of the trial court.
The defendant argues that his due process rights were violated by the police requiring him to submit to a breathalyzer test before he would be permitted to obtain a blood sample at his own expense. He further argues that he was deprived of his right to garner evidence for his defense.
The facts do not support the defendant's assertions. Following his arrest for D.U.I., the defendant was requested to submit to a breathalyzer test, which he refused, stating that he would submit to a blood test at his own expense. The defendant was advised that he would be permitted to obtain a blood test after he took the breathalyzer test. The defendant persisted in his refusal to take the breathalyzer test. Since he refused to take the breathalyzer test, the police took no affirmative steps to assist the defendant in obtaining a blood sample. However, the defendant was not hampered or prevented by the police from obtaining a blood test, and he made no effort himself to arrange for a blood test although he had access to a telephone and was accompanied by a friend to the police station.
The trial court considered the defendant's statutory and constitutional claims in a well-reasoned memorandum opinion. In that opinion, the trial court, inter alia, stated:
There is no doubt that the defendant in this case does not have a statutory right to a blood test under authority of T.C.A. 55-10-410(e) as he refused to take the breathalyzer test offered by the police under the implied consent law T.C.A. 55-10-406. 1 Therefore, he could not invoke his right to a blood test at his own expense pursuant to T.C.A. 55-10-410(e) which states:
(e) The person tested shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of his own choosing and at his own expense, provided, however, that said medical laboratory is licensed pursuant to Chapter 41 of the Title 53.
If he had taken the test offered by the police he would then have had a statutory right to further tests pursuant to T.C.A. 55-10-410(e). Since he refused the test, he is not a "person tested" and he, therefore, has no statutory right to a blood or urine test. This is the same conclusion reached by the South Carolina Supreme Court and Illinois Supreme Court in construing their statutes which read much like T.C.A. 55-10-410(e). See, State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976); People v. Mankowski, 28 Ill.App.3d 641, 329 N.E.2d 266 (1975).
The defendant next argues that he has a constitutional right to a blood test whether or not he refuses the breathalyzer test offered him by the police and that the police must assist him in obtaining the test.
The defendant thus claims a due process right to a test of his choosing and at his expense once he is arrested for driving under the influence even if he refuses the breathalyzer test offered by the arresting officer pursuant to T.C.A. 55-10-406. The defendant thus claims that the State has an affirmative constitutional duty to provide him with a test of his own choice.
It is necessary to state what this case does not involve. We are not here dealing with a case in which a defendant requests an opportunity to call his own doctor or other qualified person and have his doctor or other qualified person come to the jail or other place of incarceration and take a sample of blood. Under that described circumstance the defendant's due process rights would be violated if the police interfered with the defendant's right to obtain evidence necessary to his defense. The right of one in custody for driving under the influence to have a blood test by his own doctor or other qualified person at his own expense at the place of...
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People v. Anstey
...defendant from the place of his or her incarceration to a hospital of his or her choice for the requested test. State v. Choate, 667 S.W.2d 111, 113 (Tenn.Crim. App., 1983) (where the defendant argued that he had a constitutional right to police assistance in obtaining an independent chemic......
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