Chris C. Brissette v. State of Arkansas

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Date:
2021-06-16 13: Cite as 2020 Ark. App. 303
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ARKANSAS COURT OF APPEALS
Version: 9.7.5 DIVISION II
No. CR-19-685

CHRIS C. BRISSETTE Opinion Delivered: May 13, 2020

APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
V. [NO. 23CR-15-838]

HONORABLE CHARLES E.
STATE OF ARKANSAS CLAWSON, JR., JUDGE

APPELLEE AFFIRMED

MEREDITH B. SWITZER, Judge

Chris Brissette entered conditional guilty pleas to three counts of first-degree battery

and one count of misdemeanor possession of a controlled substance. In this appeal, he

contends that the circuit court erred in refusing to suppress his blood-test results because

Arkansas’s mandatory blood-draw statute,1 which was in effect when Brissette was subjected

to a warrantless blood draw, was unconstitutional. We affirm.

On August 14, 2015, Brissette was involved in a four-vehicle collision in which

several persons were injured. Troopers Benjamin Hoyt and Gabriel Monroe were two of

the state troopers involved in investigating the accident. On November 2, 2015, the State

filed an information against Brissette alleging several offenses, including three counts of

battery, one count of reckless driving, and one count of possession of a controlled substance.

On April 7, 2016, Brissette filed a motion to suppress the result of a blood test that was

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Ark. Code Ann. § 5-65-208 (Repl. 2016).
taken without a warrant at the direction of Trooper Monroe. He alleged that he did not

give knowing, intelligent consent and that he was deprived of the opportunity to have the

blood sample independently tested. The State responded, contending that Brissette did give

knowing, intelligent consent and that the blood sample was still available for testing.

Following a hearing held on December 13, 2016, the circuit court granted the

motion to suppress. In its May 17, 2017 order, the court ruled that because Brissette was

receiving medical treatment and under the influence of powerful pain medication at the

time his verbal consent was procured, he was incapable of knowingly and intelligently

waiving his rights or consenting to having his blood drawn for testing.

A jury trial was scheduled for January 30–31, 2018. On January 12, the State filed a

motion to reconsider, in which it maintained its previous positions but also argued that

Brissette’s blood draw, which was taken on August 14, 2015, occurred prior to the United

States Supreme Court’s June 23, 2016 decision in Birchfield v. North Dakota, 136 S. Ct. 2160

(2016), and that Troopers Monroe and Hoyt relied in good faith on Arkansas Code

Annotated section 5-65-208(a), as it stood on August 14, in obtaining the blood draw.

Brissette responded, and a hearing on the motion was held January 17.

On January 19, the circuit court entered an order reversing its earlier ruling and

denying Brissette’s motion to suppress on the basis of the good-faith exception to the

exclusionary rule. The court reasoned that Brissette’s blood was drawn pursuant to section

5-65-208; it was reasonable for experienced law-enforcement officers to conclude that the

injuries sustained in the accident were life-threatening; and it was therefore appropriate for

the trooper to order the blood draw in good-faith reliance on section 5-65-208 as it existed

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on that date. On that same date, Brissette filed another motion to suppress arguing that the

State had not previously relied on section 5-65-208; that in denying the motion to suppress,

the circuit court did not rule on the constitutionality of section 5-65-208 but implicitly

ruled that the Birchfield decision should not be applied retroactively; and that section 5-65-

208 was unconstitutional when his blood was taken in August 2015 because it violated his

rights under the Fourth and Fourteenth Amendments to the United States Constitution.

On July 5, 2018, the State filed an additional response to the motion to suppress. The State

addressed the Arkansas Supreme Court’s decision in Dortch v. State, 2018 Ark. 135, 544

S.W.3d 518, and argued that it did not affect the circuit court’s January 18, 2018 order

denying Brissette’s motion to suppress on the basis of the good-faith exception to the

exclusionary rule.

On July 9, 2018, Brissette amended his motion to suppress, reviving his position that

the trooper failed to advise him of his rights pursuant to section 5-65-204; therefore, the

test results were inadmissible and should be suppressed. On August 6, the circuit court

explained that it had revisited the issue as requested but stood on its previous ruling denying

the motion to suppress. Brissette entered his conditional pleas of guilty, and this appeal

followed.

Troopers Hoyt and Monroe testified at both the December 13, 2016 and January 17,

2018 suppression hearings. Their testimony did not differ significantly in these hearings

except that Monroe’s testimony in December focused more on obtaining Brissette’s verbal

consent for the blood draw. In addition, the State presented two emergency-medical

witnesses, Amanda Severs and Jarrod Richey, at the January hearing.

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Amanda Severs testified that she is an EMT and was called to the August 2015

collision on Highway 65. She stated that she assessed twelve-year-old Matthew Moffit’s

condition and concluded he was very seriously injured. She thought he had internal

bleeding or massive internal injuries. His blood pressure and pulse both continued to drop

over the course of the time she was with him. She was concerned he might not make it to

the hospital alive.

Jarrod Richey, a paramedic with MEMS ambulance service, testified that he

responded to the August 14, 2015 wreck. He made contact with Matthew Moffit. He

concluded that Moffit was “within his golden hour” and that he was starting into

decompensating shock. Moffit remained conscious but was becoming more confused. The

only appropriate facility for him was Children’s Hospital. Richey had Moffit airlifted there

because he was afraid Moffit might not survive his injuries. Richey said he also assessed

Becky Vines. She was being removed from her vehicle with extrication tools when he

arrived, so he went to Moffit and then returned to Vines after she had been removed from

her vehicle. He said he ordered a second helicopter due to the fact that Vines was being

extricated from the vehicle. He said anytime extrication takes more than twenty minutes,

it is a life-threatening situation and is considered a major trauma. He explained that his two

major concerns were blood loss from the extrication and the buildup of toxins in the blood

caused by entrapment, which can cause organ shutdown when the pressure of the vehicle

part(s) are finally removed. He noticed that Vines’s lower limbs were broken with several

fractures of her lower extremities and that she also had some upper-extremity fractures.

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Trooper Hoyt testified that he was able to tell immediately upon arrival that there

were life-threatening injuries because there was a head-on collision and there were massive

amounts of damages to the vehicles. Two people were still trapped in their vehicles when

he arrived. He stated that in his experience, helicopters are used when there are life-

threatening injuries involved. He testified that one of the things law enforcement does in a

collision such as this is obtain blood from potentially at-fault drivers. He said his

understanding of section 5-65-208 was that in accidents involving potential life-threatening

injuries, he is to obtain a blood draw from any drivers or operators of the motor vehicles

that are involved in the collision. Because he could not leave the scene to ensure that the

blood draw was performed, he called his supervisor to get a trooper in Pulaski County to

request the blood draw at Baptist Health Medical Center. He stated that when law

enforcement fears there is going to be a loss of life, it is a priority to get the blood sample.

Trooper Monroe explained that he responded to Baptist Health Medical Center to

obtain blood from the drivers involved in the head-on collision due to the life-threatening

nature of the injuries at that scene. He made contact with the two drivers involved—Vines

and Brissette. He acknowledged testifying at the earlier hearing and focusing on the consent

Brissette had given him for the blood draw. He said that he was familiar with section 5-65-

208 and its requirements, and he was not going to leave the hospital without obtaining a

blood draw from Vines and Brissette. He knew there were life-threatening injuries, so

getting a blood sample was his primary objective. He stated he had been trained under

section 5-65-208, and he was required to get the blood sample before he left the hospital.

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He said he could not tell the judge verbatim what section 5-65-208 said, but to him it meant

that if there were life-threatening injuries, he was required to obtain a blood draw.

Our appellate courts review de novo the denial of a motion to suppress, taking into

consideration the totality of the circumstances, reviewing findings of historical fact for clear

error, and determining whether those facts give rise to reasonable suspicion or probable

cause, giving due weight to inferences drawn by the circuit court and proper deference to

the circuit court’s findings. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). A

finding is clearly erroneous— even if there is evidence to support it— when, after reviewing

the entire evidence, we are left with a definite and firm conviction that the circuit court

made a mistake. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A warrantless search of

a person is reasonable only if it falls within a recognized exception to the warrant

requirement. Parks v. State, 2020 Ark. App. 267, at 2. When evidence is obtained in

violation of the Fourth Amendment, the judicially developed exclusionary rule precludes

its use in a criminal proceeding. Id. The primary purpose of the exclusionary rule is to

deter future unlawful police conduct. Id. The United States Supreme Court has adopted

good-faith exceptions to the exclusionary rule where its application does not advance the

remedial purpose of deterring future unlawful police conduct. Id. One such exception

applies to searches conducted in objectively reasonable reliance on statutes subsequently

declared to be unconstitutional. Id. (citing Illinois v. Krull, 480 U.S. 340 (1987)). We defer

to the superior position of the circuit court to evaluate the credibility of witnesses at a

suppression hearing, and any conflicts in the testimony of witnesses are for the circuit court

to resolve. Rainey v. State, 2017 Ark. App. 427, 528 S.W.3d 288. We reverse only if the

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circuit court’s ruling is clearly against the preponderance of the evidence. Menne v. State,

2012 Ark. 37, 386 S.W.3d 451.

The United States Supreme Court has previously explained that applying the

exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable

reliance on a statute subsequently declared to be unconstitutional would have as little

deterrent effect on the officer’s actions as would the exclusion of evidence when an officer

acts in objectively reasonable reliance on a warrant. Krull, 480 U.S. 340. Unless a statute

is clearly unconstitutional, officers cannot be expected to question the judgment of the

legislature that passed the law. Id. If the statute is subsequently declared unconstitutional,

excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter

future violations of the Fourth Amendment by an officer who has simply fulfilled his

responsibility to enforce the statute as written. Id.

Here, it is undisputed that Trooper Monroe did not obtain a warrant before

directing that Brissette’s blood be drawn. However, it is also undisputed that although

section 5-65-208 was subsequently amended, on August 14, 2015, it provided:

(a) When the driver of a motor vehicle or operator of a motorboat on the waters
of this state is involved in an accident resulting in loss of human life or when there is
reason to believe death may result, a chemical test of the driver’s or operator’s blood,
breath, saliva, or urine shall be administered to the driver or operator, even if he or
she is fatally injured, to determine the presence of and percentage of alcohol
concentration or the presence of a controlled substance, or both, in the driver’s or
operator’s body.

(b)(1) A chemical test under this section shall be ordered as soon as practicable by
one (1) of the following persons or agencies:

(A) The law enforcement agency investigating the accident;
(B) The physician in attendance; or
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(C) Other person designated by state law.

Troopers Hoyt and Monroe testified about their understanding of the requirements of

section 5-65-208 as it existed on August 14, 2015, and their assessment that the August 14

collision involved life-threatening injuries. Two EMTs who were at the scene of the

accident also testified that they determined the injuries resulting from the accident were life-

threatening. Trooper Monroe specifically testified that he obtained the blood draw from

Brissette pursuant to section 5-65-208. Deferring to the circuit court’s superior position

to evaluate witness credibility, Rainey, supra, we are not left with a definite and firm

conviction that the circuit court made a mistake in refusing to suppress Brissette’s blood-

test results as a result of its conclusion that the troopers acted in good faith pursuant to

section 5-65-208.

In arguing that the circuit court erred in denying his motion to suppress, Brissette

contends that his consent for the blood draw was not voluntary; that section 5-65-208 was

unconstitutional at the time of the blood draw, as subsequently demonstrated in Birchfield,

supra; and that Birchfield should be applied retroactively to reverse the circuit court’s denial

of his motion to suppress and to vacate his conviction. We find the arguments to be

somewhat misguided considering the basis on which the circuit court denied the motion to

suppress. The circuit court initially found that Brissette’s consent was invalid, and that

finding was never specifically changed. Instead, the circuit court changed its decision on

the motion to suppress for another reason—the troopers acted in good-faith reliance on the

statute in obtaining the blood draw. It is therefore unnecessary to reexamine the consent

issue in this appeal. Moreover, as Brissette acknowledges, the circuit court did not

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specifically decide the statute’s constitutionality. Instead, the circuit court considered the

good-faith exception to the exclusionary rule and concluded that the troopers acted in good

faith in obtaining the blood draw pursuant to section 5-65-208 and denied the motion to

suppress on that basis. Brissette’s reliance on Dortch, supra, is also misplaced. The circuit

court in that case did not rule on the good-faith exception to the exclusionary rule, so our

supreme court did not reach that issue in Dortch. Here, however, the circuit court’s denial

of the motion to suppress was based squarely on the good-faith exception. Finally, even if

our supreme court had declared section 5-65-208 unconstitutional in Dortch or any other

decision after August 14, 2015, or if we applied Birchfield retroactively in this case to

specifically declare the statute unconstitutional, the troopers’ reliance on the statute as of

August 14, 2015, would still be objectively reasonable, and the circuit court’s good-faith

analysis would still prevail.

We therefore hold that the circuit court did not clearly err in denying Brissette’s

motion to suppress based on the good-faith exception, making the exclusionary rule

inapplicable and the blood-test results admissible.

Affirmed.

GRUBER, C.J., and HIXSON, J., agree.

Laura Avery, for appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.

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