IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 28, 2009
STATE OF TENNESSEE v. KIM GESELBRACHT
Appeal from the Criminal Court for Rhea County
No. 16982 Thomas W. Graham, Judge
No. E2009-00290-CCA-R3-CD - Filed September 24, 2009
On January 22, 2009, the Rhea County Criminal Court dismissed two counts of driving under the
influence (“DUI”) against the defendant, Kim Geselbracht. The trial court determined that a law
enforcement officer’s ignoring the defendant’s repeated requests for an independent blood test for
blood alcohol content (“BAC”) denied the defendant his constitutional and statutory rights. The
State appeals, arguing that the trial court erred by dismissing the charges. Upon our review, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and D. KELLY THOMAS, JR., J., joined.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney
General, for the appellant, State of Tennessee.
Carol Ann Barron, Dayton, Tennessee, for the appellee, Kim Geselbracht.
OPINION
On August 3, 2007, the defendant was arrested for DUI. In April 2008, a Rhea
County grand jury charged the defendant with two counts of DUI. See T.C.A. § 55-10-401 (2004).
On August 6, 2008, defense counsel filed several motions to suppress evidence. These motions
challenged the initial investigatory stop of the defendant and the test results from the Intoximeter
EC/IR II (“breathalyser”), citing several deficiencies in the test administration and the equipment
used in the BAC testing. After holding a motions hearing on December 5, 2008, the trial court
dismissed the charges based on its determination that the defendant was denied due process by a
Rhea County law enforcement officer’s refusing to permit him an independent BAC analysis. The
State filed a timely notice of appeal.
At the motions hearing on December 5, 2008, defense counsel argued that law
enforcement officers refused the defendant an opportunity to obtain an independent blood test for
BAC pursuant to Code section 55-10-410(e). Counsel argued that, because the breathalyser
malfunctioned, the defendant “wanted the right to be able to have his own testing done.” Defense
counsel argued that the refusal to allow the independent test was a violation of the defendant’s right
to due process.
Deputy Zack Davis of the Rhea County Sheriff’s Department testified that he
observed a Corvette “cross[] the fog line three times” for intervals of three to five seconds. Deputy
Davis activated his blue lights, and the Corvette stopped in a parking lot. Deputy Davis noted that
the vehicle traveled “for a little while on the shoulder of the road” before completely stopping. Upon
speaking with the defendant, who was driving the vehicle, Deputy Davis noticed a faint smell of
alcohol coming from the vehicle. Deputy Davis testified that after the defendant admitted drinking
three or four beers at Paradise Bar, he asked the defendant to exit the vehicle. Deputy Davis said that
the defendant swayed while standing and failed the horizontal gaze nystagmus, one-leg stand, and
walk-and-turn tests. Based upon his observations, Deputy Davis arrested the defendant for DUI at
approximately 11:38 p.m. When asked whether the defendant requested an independent blood test,
Deputy Davis responded, “No, not that I recall.” At the Rhea County Jail, Deputy Davis turned the
defendant over to Sergeant Jake Miller.
Sergeant Miller testified that at the time of the hearing he had worked at the Rhea
County Jail for one year and eight months and that he had attended classes and attained certification
for use of the breathalyser. He estimated that he had operated the machine more than 25 times. He
testified that he observed the defendant for 20 minutes preceding his breathalyser test and that the
machine mandated a timed 20-minute period before allowing a defendant to blow into the machine.
Sergeant Miller stated that the defendant did not smoke, vomit, or introduce foreign substances into
his mouth during that time period. He testified that the procedures that he followed conformed with
those set forth by the Forensic Services Division of the Tennessee Bureau of Investigation. He
further testified that the breathalyser had been tested prior to the defendant’s taking the test and that
it functioned properly.
Sergeant Miller testified that the breathalyser was programmed to allow three
attempts to obtain a sufficient sample. He said that the defendant blew into the breathalyser three
times and that, on each occasion, the machine reported “insufficient sample.” After his third attempt,
the breathalyser aborted the test. Sergeant Miller testified that he could not determine whether the
defendant intentionally gave an insufficient sample. Sergeant Miller then restarted the machine to
conduct another test, which required another 20-minute waiting period. The defendant’s second test
showed a BAC of .16 percent.
Sergeant Miller testified that he did not recall the defendant’s asking for a blood test
or requesting to have someone come to the jail and take an independent blood test. He stated that,
had the defendant asked for such a test, he would have refused pursuant to the normal procedure.
He further testified that no one arrived at the jail to take an independent blood sample from the
defendant.
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On cross-examination, Sergeant Miller agreed that, as of August 2007, he had only
been certified to operate the breathalyser for a “very short time” and had only operated it “a dozen,
maybe a half a dozen” times.
The defendant, who resided in Ringgold, Georgia, testified that on the day in
question, he had driven to Rhea County to participate in a karaoke contest for a radio station with
his brother-in-law. He testified that, while lighting a cigarette in his vehicle, he noticed a police
cruiser with its lights engaged behind him. The defendant recalled that he pulled over and that
Deputy Davis approached his window and informed the defendant that he had been “hesitating.”
He said that Deputy Davis also asked whether he had been drinking or had any drugs in the vehicle
and insisted that he had observed the defendant throw something underneath his seat. The defendant
told Deputy Davis that he did not realize he was hesitating and that he had drunk two or three beers
during the five-hour period he spent at the Paradise Bar. He also told Deputy Davis that he did not
have any drugs.
The defendant testified that Deputy Davis asked him to exit his vehicle. The
defendant said that Deputy Davis “rather abruptly” took off the defendant’s glasses and then asked
him to do the walk and turn test. The defendant did not recall whether Deputy Davis explicitly
instructed him to touch his heel to his toe. He testified that after the test, Deputy Davis arrested him
for DUI. He maintained that Deputy Davis did not administer a horizontal gaze nystagmus test or
a one-leg stand test. The defendant testified that, meanwhile, another officer questioned his wife,
who was riding in the vehicle with him, about drugs.
The defendant testified that Deputy Davis handcuffed him and placed him in the back
of the patrol car. He stated that Deputy Davis then returned his glasses and said, “I’m going to give
you one more chance, we’re going to search your car, and if there are any drugs in that car, you’re
going to be in much bigger trouble than you are right now . . . .” He testified that the law
enforcement officers searched his vehicle. The defendant was then transported to jail.
The defendant testified that Sergeant Miller provided him with the implied consent
form but did not read it to him. The defendant stated that he initially refused to submit to the
breathalyser test because, from his understanding, “you never take a breathaly[s]er that a blood test
was much more reliable.” He said, “I wanted to have a blood test to make sure that I wouldn’t get
into something like this with the breathaly[s]er.” The defendant testified that he “[v]ery explicitly”
told Sergeant Miller that he wanted a blood test “[n]umerous times” but that Sergeant Miller stated
that the defendant was “not going to get a blood test.”
The defendant further testified that Sergeant Miller threatened to arrest his wife for
public drunkenness if he did not submit to the breathalyser. He testified that, after “several back and
forths” he consented to the breathalyser. He stated that, during the 20-minute waiting period,
Sergeant Miller did not watch him as he had testified but instead performed other tasks about the
station. The defendant testified that, the first two times he blew into the breathalyser “zeros came
up” and that Sergeant Miller declared, “[T]here’s something wrong with this machine.” The
defendant stated that Sergeant Miller then moved him to another part of the room where he could
not see the machine. Sergeant Miller returned later and asked him to attempt the breathalyser again.
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He also stated that Sergeant Miller denied his requests for a blood test after he took
the breathalyser test. The defendant said, “I asked afterwards and they said there’s no need, we’ve
got what we want, and you’re going to jail.”
On cross-examination, the defendant admitted that he did not arrange for a doctor or
nurse to take a blood sample; however, he said, “I asked them to allow me to have a blood test,
expecting that they would explain what . . . was required to do that.” He agreed that neither he nor
his wife “t[ook] any steps to have someone come down and draw [his] blood.” He further admitted
that he did not ask for a telephone call. The defendant maintained that he had the financial ability
to pay for an independent blood test.
After allowing the defendant and the State to further brief the issue of whether the
law enforcement officers deprived the defendant of his statutory and constitutional rights, the court
filed a memorandum opinion and order dismissing the case on January 22, 2009. The court found
that the defendant was stopped under suspicion of DUI and that he was arrested after he failed
“certain field sobriety tasks.” The trial court found,
It is uncontradicted that the [d]efendant stated he did not trust the
breathalyser test and that he wanted to have a blood test to verify the
results of the breathalyser. The [d]efendant testified that his request
was ignored and that he did not know what procedures were
necessary in order for him to give the requested blood sample, but
that he was financially capable of paying the costs and of arranging
for someone to come to the jail and take his blood had those
requirements been requested.
The trial court’s order explained that the defendant’s ignorance of the requirements to individually
pay for and arrange transportation for an independent blood test did not affect his right to possibly
mitigating evidence. The court reasoned that the “actions / inactions of Officer Miller in ignoring
the [d]efendant’s request for an independent test was tantamount to suppression of evidence by the
State which was possibly favorable to the [d]efendant” and that such action frustrated the reasonable
efforts of the defendant to obtain exculpatory evidence. The court concluded that the defendant was
denied “both his statutory rights and his due process rights” and that “the only proper remedy is
dismissal of the case.”
The State appeals, arguing that the trial court erred in dismissing the charges against
the defendant “when [the defendant] failed to show that the police hindered his efforts to obtain an
independent blood alcohol test.” The State posits that law enforcement officers could not have
hindered the defendant’s efforts to obtain independent testing because “the defendant failed to show
that he took any measures to obtain an independent test.” The State argues that the police have no
affirmative duty to assist a defendant in obtaining evidence for his defense. Lastly, the State argues
that the court erred in determining that Sergeant Miller’s actions violated Code section 55-10-410(e)
because this section is inapplicable to the present case.
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The defendant responds that the trial court properly dismissed the charges “[b]ased
upon the deliberate or intentional misconduct by Sergeant Miller in failing to give the defendant a
reasonable opportunity to obtain his own evidence, available only for a short period of time.” Also,
the defendant maintains that Code section 55-10-410(e) applies to this case and further supports the
dismissal of the charges.
Lastly, the defendant alleges that the State’s appeal is frivolous and requests that the
State pay his costs and expenses pursuant to Code section 27-1-112.
I. Right to Independent BAC Testing
The trial court determined that Sergeant Miller’s denial of the defendant’s request for
a blood test violated the defendant’s statutory and constitutional rights. We note that a trial court’s
factual findings are conclusive on appeal unless the evidence preponderates against them. State v.
Binette, 33 S.W.3d 215, 217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see State
v. Mitchell, 137 S.W.3d 630, 637 (Tenn. Crim. App. 2003). Questions of credibility, the weight and
value of the evidence, and the resolution of conflicting evidence are matters entrusted to the trial
judge. Odom, 928 S.W.2d at 23. The application of the law to the facts, however, is reviewed de
novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). With these standards in mind,
we will evaluate the defendant’s statutory and constitutional rights in turn.
Tennessee Code Annotated section 55-10-410(e) provides that a person tested for
BAC “shall be entitled to have an additional sample of blood or urine procured and the resulting test
performed by any medical laboratory of that person’s own choosing and at that person’s own
expense.” T.C.A. § 55-10-410(e) (2004). The State argues that, because “the State did not obtain
a blood or urine sample from the defendant,” the statute does not apply to the present case. The
defendant disagrees and argues that the court correctly determined that Sergeant Miller denied him
of his statutory right.
The State in its brief quotes State v. Gilbert, 751 S.W.2d 454, 460 (Tenn. Crim. App.
1988), to argue that Code section 55-10-410(e)’s provision for independent BAC testing
“‘presupposes that a sample or specimen is in existence at the time of the request; and the sample
or specimen is of sufficient size or quantity that it can be made available to the accused or his
expert.’” Upon our review of Gilbert, we find the State’s argument misplaced. The quoted material
from Gilbert applies to discovery rules regarding the independent testing of a pre-existing sample.
Id. at 460; see Tenn. R. Crim. P. 16(a)(1)(G). The court did not address Code section 55-10-410(e)
until later in its opinion. Id. at 461. The Gilbert court simply stated that Gilbert’s reliance on Code
section 55-10-401(e) was misplaced because “[t]he record [was] void of any evidence that the
defendant requested an additional specimen of blood.” Id. (emphasis added).
Further, we agree with the defendant that this court has determined that Code section
55-10-410(e) provides a right to an independent blood or urine sample to challenge the result of a
breath test. In State v. Johnson, this court determined that “[t]he defendant’s greatest challenge to
the accuracy of the breath test is the independent blood test to which each accused has a statutory
right.” State v. Johnson, 717 S.W.2d 298, 305 (Tenn. Crim. App. 1986) (citing T.C.A. § 55-10-
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410(e)). This court has held that, when a defendant submits to a breath test as requested by law
enforcement officers, he is then entitled to independent testing pursuant to Code section 55-10-
410(e). State v. Choate, 667 S.W.2d 111, 112 (Tenn. Crim. App. 1983) (“If [the defendant] had
taken the [breath] test offered by the police he would then have had a statutory right to further tests
pursuant to [Code section] 55-10-410(e).”). Thus, we hold that in the present case, when the
defendant completed a breath test, he had a right pursuant to Code section 55-10-410(e) to an
additional blood or urine sample for his independent analysis.
The State also argues that “[t]he trial court erroneously determined that the defendant
was denied due process when officers declined to explain the procedure for obtaining an independent
blood alcohol test.” Apart from Code section 55-10-410(e), a defendant’s “due process rights [are]
violated when the police interfere[] with the [d]efendant’s attempt” to obtain independent BAC
testing. State v. Livesay, 941 S.W.2d 63, 66 (Tenn. Crim. App. 1996). This is because “‘[t]he denial
of an opportunity to procure a blood test on a charge of intoxication prevents the accused from
obtaining evidence necessary to his defense.’” Id. (citation omitted). As stated above, this right to
independent BAC testing does not place upon law enforcement officers an affirmative duty “to make
a blood test available to the defendant by transporting him from the place of his incarceration to a
hospital for the requested test,” see Choate, 667 S.W.2d at 113, or a duty to administer a blood test,
see Livesay, 941 S.W.2d at 66 (citing Brown v. Mun. Ct. of L.A. Jud. Dist., 150 Cal. Rptr. 216, 219
(Cal. Ct. App. 1978)). However, “‘in no event can an officer frustrate the reasonable efforts of an
accused to obtain a timely sample of his blood without denying him due process of law.’” Id. at 66
(quoting Brown, 150 Cal. Rptr. at 219).
This court, in Livesay stated, “We do not believe that simply suppressing the State’s
blood alcohol test is a sufficient safeguard of the [d]efendant’s right to be able to gather and preserve
evidence in his defense.” Id. We then determined that, when a State’s actions foreclose a fair trial
by denying the defendant’s access to such exculpatory evidence, the proper remedy is dismissal. Id.
(citing Commonwealth v. Hampe, 646 N.E.2d 387 (Mass. 1995); McNutt v. Sup. Ct. of Ariz., 648
P.2d 122 (Ariz. 1982)).
Having determined that both Code section 55-10-410(e) and principles of due process
are applicable in this case, we must now determine whether Sergeant Miller violated either the
defendant’s statutory or constitutional rights. We acknowledge that this court has determined that
a defendant, pursuant to the statute, does not have a right “to be advised of his privilege of obtaining
a sample of his blood to be tested independently” by his arresting officers. State v. McKinney, 605
S.W.2d 842, 846 (Tenn. Crim. App. 1980); see also State v. Gray, No. M2007-02360-CCA-R3-CD
(Tenn. Crim. App., Nashville, June 26, 2008) (citing Choate, 667 S.W.2d at 113).
The trial court in the present case considered the defendant’s asking for a blood test
to be a “reasonable effort” that was “frustrated” by the inaction of Sergeant Miller and that “ignoring
the [d]efendant’s request for an independent test was tantamount to suppression of evidence by the
State which was possibly favorable to the [d]efendant.” In light of Livesay, the trial court
determined that dismissal of the case was the appropriate remedy.
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The State first argues that the defendant failed to request an independent blood BAC
test and that, therefore, no due process violation occurred; however, as we have already stated, the
trial court’s factual findings to the contrary are conclusive on appeal. Binette, 33 S.W.3d at 217;
Odom, 928 S.W.2d at 23. The State next argues that, “even if such a request was made, the
defendant failed to show that the police hampered or obstructed any efforts on his part to obtain an
independent blood test.” The State suggests that, in order to qualify as an “attempt” to obtain an
independent BAC test, a defendant must telephone for a person to arrive at the jail to take the blood
sample, arrange for that person to arrive at the jail, and/or affirmatively state his desire to pay for the
test. The State maintains, because the defendant only asked for the additional testing and did not
“t[ake] any steps towards procuring a blood test,” Sergeant Miller could not have prevented or
hampered the availability of additional testing.
The State cites Livesay in support of its position. In Livesay, after arresting Livesay
for suspected DUI, the officer gave Livesay a choice between a breath and a blood test. Livesay, 941
S.W.2d at 64. Livesay chose a blood test and was transported to a hospital where two tubes of blood
were drawn from Livesay. Id. Upon arriving at the jail, Livesay was permitted a telephone call, and
he called his physician and requested he come to the jail “to obtain an additional blood sample for
analysis.” Id. An officer at the jail overheard the conversation and told Livesay that his doctor was
not permitted to come to the jail. Id. At Livesay’s request, the jailer then spoke with the doctor over
the receiver to confirm that he was not permitted to come to the jail and take an additional sample.
Id. Livesay’s physician testified that, had he been permitted, he would have driven to the jail and
obtained an additional blood specimen for analysis. Id. The trial court determined that the officer
prevented the defendant from obtaining exculpatory evidence in violation of the defendant’s due
process rights and dismissed the case, and this court affirmed. Id. at 64-65.
The State also cites State v. Choate in support of its position; however, in Choate the
defendant refused the breathalyser test and demanded a blood test in lieu of the breath test. Choate,
667 S.W.2d at 112-13. Because Choate refused to take the requested breathalyser test, the law
enforcement officers “took no affirmative steps to assist the defendant in obtaining a blood sample.”
Id. at 112. Unlike Choate, the defendant in this case asked for an additional blood sample for
independent testing after submitting to a breathalyser test.
Lastly, the State relies on this court’s unpublished opinion in State v. Jackie Lynn
Gray, No. M2007-02360-CCA-R3-CD (Tenn. Ct. App., Nashville, June 26, 2008). After being
arrested for suspicion of DUI, Gray requested a blood test, to which the officer initially agreed. Id.,
slip op. at 3. A few seconds later, however, the officer determined that he would give Gray a breath
test instead. Id. Gray responded that he would “‘probably flunk’” the breath test. Id. After
completing the breath test, Gray asked the officer to take him to the hospital for a blood test, which
the officer refused. Id. The trial court found that Gray “requested a blood test after submitting to
the breathalyser test but made no attempt to procure the test other than to ‘raise Cain’ in the drunk
tank.” Id., slip op. at 4. We did not disturb the trial court’s determination. Id.
The State’s argument suggests that a violation of the statute or of due process
principles occurs only when the law enforcement officers’ obstruction of a defendant’s attempt to
obtain independent testing reaches the extreme level described in Livesay. Further, the State argues
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that a defendant’s simply requesting an additional test cannot constitute a “reasonable effort” without
further action. We disagree.
The defendant testified that, upon his mistrust of the breathalyser, he requested a
separate blood test. Sergeant Miller responded that another test was not necessary and that “we’ve
got what we want, and you’re going to jail.” We cannot fathom what other “reasonable effort” the
defendant could have taken towards obtaining a separate blood test under these circumstances.
Unlike the defendant in Livesay, many people accused of DUI will not know to immediately arrange
for someone to arrive at the jail to obtain a separate sample. Unlike in Gray, where the trial court
clearly discredited Gray’s claim that he legitimately desired a separate test, in the present case the
trial court determined that the defendant’s requests were genuine inquiries into how he could obtain
a separate blood test. The trial court in this case determined that it was unreasonable to expect the
defendant, who was 61 years old at the time of arrest and had no prior DUI offenses, to know of the
specific requirements of obtaining a separate BAC test. We also note the defendant’s testimony that
he was capable of arranging for a sample and paying for the testing. The issue before us is factually
intensive, and we will not disturb the trial court’s finding that Sergeant Miller’s ignoring the
defendant’s legitimate request for a blood test amounted to “frustrating” a “reasonable effort” to
obtain exculpatory evidence. We affirm the trial court’s dismissal of the charges.
II. Frivolous Appeal
The defendant, in his response brief, alleges that the State’s appeal is frivolous, and
he requests damages pursuant to Code section 27-1-122. Our statutory scheme allows for “just
damages against the appellant, which may include, but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of appeal.” T.C.A. § 27-1-122. “An
appeal is frivolous when it has no reasonable chance of success, . . . or is so utterly devoid of merit
as to justify the imposition of a penalty.” Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct.
App. 2006) (internal citations and quotation marks omitted). Granting restitution for a frivolous
appeal rests solely in the discretion of this court. See id. at 180-81.
The defendant argues that the State “presents no justifiable questions” and that “it can
be reasonably inferred that the appeal serves only to delay and burden the other parties.” We wholly
disagree. As can be gleaned from the lengthy analysis above, the State’s appeal presented genuine
questions of law and fact. Further, we cannot discern any benefit the State would obtain through
undue delay. We hold that the State’s appeal is not frivolous and deny damages pursuant to Code
section 27-1-122.
III. Conclusion
In light of the foregoing analysis, we affirm the trial court’s dismissal of the case, but
we deny the defendant’s request for damages pursuant to Code section 27-1-122.
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JAMES CURWOOD WITT, JR., JUDGE
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