The answer is probably yes, if the “logical, commonsense reading of a (search) warrant shows that the warrant was meant to authorize such an analysis because an intoxicating substance cannot be found in blood unless the blood is tested.” The result in this case is based on the common law which pre-dated the enactment of T.C.A. 55-10-408(a), effective May 1, 2024, which clearly negates the need for a second warrant authorizing testing. State v. Ritika Arora, Tenn. Crim. App. December 23, 2024, 2024 WL 5200479.
Two Tennessee appellate cases have held that the decision as to whether an officer has probable cause to conduct a warrantless search of a car based upon the presence of the odor of marijuana (which is illegal) or hemp (which is legal) is based upon the totality of the circumstances. See: State v. Andre JuJuan Lee Green, Tenn. Supreme Court, August 27, 2024, 2024 WL 3942511 and State v. Torrian Bishop, Tenn. Crim. App., November 15, 2024, 2024 WL 4798895 (Bishop II). Previously, many observer’s had supposed that the smell of marijuana/hemp provided probable cause to conduct a warrantless search, citing State v. Torrian Bishop, Tenn. Crim. App., April 11, 2024, 2024 WL 1564346 (Bishop I).
Mr. Patel was arrested for DUI following a traffic crash. A blood draw conducted 39 minutes later eventually reflected a blood alcohol content of .114%. The Greene County Grand Jury returned an indictment for violation of the DUI per se statute, T.C.A. 50-10-401, which provides that it is illegal to drive with a BAC of .08% or more. The indictment alleged that Patel drove his vehicle while his “BAC was .114%, an amount of .08% or more”. At trial the TBI analyst testified that the lab result only reflected the BAC level at the time of the draw and that she could not determine his BAC before or later.
Patel argued that the specific allegation of the indictment, that his BAC was .114%, required that the State prove that the level was exactly .114% at the time of his driving. He contended that when the State alleged a specific level greater than .08% then that allegation raised the burden of proof to that level.
Patel was convicted of DUI per se and appealed, advancing the same theory in the appellate court.
Judge Greenholtz, writing for the Court of Criminal Appeals, noted that there was precedent to support the Patel argument but that the modern rule favored an analysis of “substance rather than form” in testing the sufficiency of an indictment, citing State v. Moss, 662 S.W. 2d 590, 592 (Tenn. 1984). The opinion characterizes the additional facts alleged in the indictment as “surplusage”. The Court concluded: “Because the blood draw was conducted within a reasonable time after the defendant had been driving, the jury could consider this fact as circumstantial evidence that his blood alcohol level was .08% or more at the time he was driving.”
State v. Vikash Patel, August 21, 2024, Tenn. Crim. App., 2024 WL 3888338
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