State v. Turner

• Decision Date: 28 December 1995
• Citation: 913 S.W.2d 158
• Parties: STATE of Tennessee, Appellee, v. Sam Austin TURNER, Appellant.
• Court: Tennessee Supreme Court

Page 158

913 S.W.2d 158

STATE of Tennessee, Appellee, v. Sam Austin TURNER, Appellant.

Supreme Court of Tennessee,

at Nashville.

Dec. 28, 1995.

Donald G. Dickerson, Cookeville, for Appellant.

Charles W. Burson, Attorney General and Reporter, Eugene J. Honea, Associate Solicitor General, Nashville, William E. Gibson, District Attorney General, Owen G. Burnett, Assistant District Attorney General, Cookeville, for Appellee.

OPINION

WHITE, Justice.

Following an acquittal on the charges of driving under the influence of an intoxicant, the trial court determined that Sam Austin Turner had refused to submit to a chemical test to determine the alcoholic content of his blood and, consequently, suspended Turner's operator's license for six months pursuant to Tennessee Code Annotated Section 55-10-406, the implied consent law. Turner contends that under the statute the accused has the right to choose the type of chemical test and that his offer to take a blood test satisfies the implied consent law despite his refusal to take a breath test. Thus, we are called upon to determine whether an accused complies with the implied consent law when the accused offers to take a specific chemical test to determine the alcoholic content of the blood, but specifically refuses to take the test offered by the officer.

FACTS

Sam Austin Turner was stopped in Putnam County for "bad driving." After a series of field sobriety tests, Officer Randall Brown arrested Turner and took him to the police station. There, Officer Brown requested that Sergeant David Dukes give Turner a test using the intoximeter to determine the alcoholic content of his blood. The standard implied consent form was read to Turner who signed the form indicating his refusal to submit to the test. Turner offered, however, to take a blood test. ¹

Turner was indicted for driving under the influence of an intoxicant and for violating the implied consent law. A jury acquitted Turner of driving under the influence. The trial judge, upon the state's motion, found that Turner had refused to submit to the test and suspended his operator's license for six months.

Turner appealed to the Tennessee Court of Criminal Appeals, which, upon the state's motion, transferred the case to the Tennessee Court of Appeals. ² In that court, Turner challenged the trial court's finding on two bases:

1) that the testing officer did not have reasonable grounds to believe that Turner was driving under the influence; and

2) that because Turner agreed to take a chemical test, albeit not the one offered by the officer, he did not violate the statute.

Rejecting both arguments, the Court of Appeals affirmed the suspension of Turner's operator's license. In this Court, Turner has limited his issue to one. We are called upon to squarely address this succinct issue: does the officer or the motorist select the testing method?

Like the laws in most states, our legislation aimed at curbing the serious problem of driving under the influence of an intoxicant contains a provision, commonly referred to as the implied consent law, which presumes that all motorists who have accepted the privilege of operating a motor vehicle in our state have impliedly consented upon request to take a chemical test to determine the alcoholic or drug content of the blood. Our statute provides:

Any person who drives any motor vehicle in the state is deemed to have given consent to a test for the purpose of determining the alcoholic or drug content of that person's blood; provided that, such test is administered at the direction of a law enforcement officer having reasonable grounds to believe such person was driving while under the influence of an intoxicant or drug....

Tenn.Code Ann. § 55-10-406(a)(1)(1995 Supp.). Thus, one arrested for driving under the influence who refuses to submit to a test, after being advised that refusal will result in a suspension of the operator's license, is charged with violation of the implied consent law. Id. at (a)(2) & (3). Upon a finding that the driver violated the provision, the court is required to suspend the driver's operator's license for six months. Id. at (a)(3).

Our statute also defines "test" as used in the implied consent law. "Test" means "any chemical test designed to determine the alcoholic or drug content of the blood. The specimen to be used for such test shall include blood, urine or breath...." Tenn.Code Ann. § 55-10-405(5) (1993 Repl.). Combining this definition, which includes blood tests, with the implied consent statute's requirement that a driver submit to "a test," Turner argues that his offer to take a blood test was compliance with the statute despite his refusal to take the specific test requested by the officer. If Turner's proposition is accepted, the result would be that drivers have the choice as to which type of test to take under our implied consent law. While there is no question that an accused has the right to an additional sample for a separate test, Tenn.Code Ann. § 55-10-410(e) (1995 Supp.), that is not Turner's contention. Rather, he contends that the driver has the right to choose the test upon which the state will then rely for its evidence at trial. The Court of Appeals rejected this argument relying on authority from other states interpreting similar statutes to vest the choice of test in the officer.

The language of our statute lends itself to both Turner's and the appellate court's interpretation. Read literally and exclusively, section 406(a)(1) supports Turner's interpretation. It provides that drivers have consented to "a test." Thus, given the broad definition of "test" in section 405(5), Turner's consent to a blood test would, arguably, constitute compliance. But we are not at liberty to read the statute in isolation as Turner does. In interpreting statutes, we are required to construe them as a whole, read them in conjunction with their surrounding parts, and view them consistently with the legislative purpose. See e.g., City of Lenoir City v. State ex rel. City of Loudon, 571 S.W.2d 297 (Tenn.1978); Tidwell v. Servomation-Willoughby Co., 483 S.W.2d 98 (Tenn.1972); Western Pipe Line Constructors, Inc. v. Dickinson, 203 Tenn. 248, 310 S.W.2d 455 (1958). The construction must not be strained and must not render portions of the statute inoperative or void. Tidwell v. Collins, 522 S.W.2d 674 (Tenn.1975). We must seek a reasonable construction in light of the purposes, objectives, and spirit of the statute based on good sound reasoning. Dorrier v. Dark, 537 S.W.2d 888 (Tenn.1976). When we employ those required rules of construction, the logic in Turner's interpretation disappears.

The purpose of our driving under the influence statutes is to remove from the highway, prosecute, and punish those who engage in the dangerous menace of driving under the influence. The legislature intended to enable the state to establish the offense by scientific evidence. For the privilege of operating a vehicle on our highways, the driver consents to a test to determine whether that privilege is, as a law enforcement officer suspects, being abused. Subsections 2 and 3 of the statute unequivocally give the officer the prerogative of requesting submission to a test selected by the officer. Id. at § -406(a)(2) & (3). Subsection 1 requires that the test must be "administered at the direction" of the officer. Id. at § -406(a)(1). Furthermore, if the driver had the option of choosing the test, section 410's additional sample provision would be rendered meaningless. When the statute is read as a whole and construed in light of the legislative purposes of punishing drivers who operate vehicles while under the influence and penalizing drivers who refuse to honor their implied consent to testing, the reasonable conclusion is that the officer, not the driver, must select the test.

We need not rest our conclusion solely on statutory interpretation, however. We are also guided by the decision of a number of states who, unlike us, have faced this issue before. Our research has uncovered the rule in thirty-six states, twenty-five of which allow the officer to select the test. While reviewing the actions of other state courts is helpful, we do so with an acute awareness of the different statutes which the courts were called upon to interpret. Some statutes provide that drivers may choose between alternate tests. Others require or encourage the officer to inform the driver of alternative tests which can be taken in addition to the test selected by the officer like ours, do not directly address the choice issue and must be interpreted.

The majority of states with statutes akin to ours have concluded as we have that the officer selects the test. But more important to us than being in the "majority," is that the reasoning of those majority decisions is far more persuasive than that in the decisions allowing the driver to select the method of testing.

Courts allowing the officer to select the test have reasoned that the officer, rather than the driver, has the information regarding the available tests. Kiso v. King, 691 S.W.2d 374, 377 (Mo.App.1985). Since the driver is not aware necessarily of which tests are available, the choice could be an illusory one, if, in fact, all possible methods were not available, or a calculated one, if the driver chose a test known to be either unavailable or available at such a distance as to nullify the results. See State v. Sensing, 843 S.W.2d 412 (Tenn.1992). Which tests were available might depend on the departmental, or even worse, the driver's, resources. Since differentiation could not depend on the driver's financial ability, the department (or state) might opt to limit the testing methods to those equally available to all. Otherwise, determinations of indigency or issues of the right to a state-financed test might arise.

Other practical concerns would arise. Presumably, a time period for choosing a test would have to be...