Blood obtained by consent and/or exigent circumstances in this case


In 2007, Larry Setzer was driving east in a Ford F–250 pickup truck on Goodman Road in Southaven, Mississippi. As Setzer approached the traffic light at the intersection of Goodman Road and Airways Boulevard, his vehicle collided with a stationary Buick Park Avenue passenger car in the north turn lane of east Goodman Road. The pickup pushed the car into the intersection, causing a four-vehicle collision on the west-bound side of Goodman Road.

Before coming to its final resting place, the Buick struck a Dodge Intrepid automobile in the south turn lane of west Goodman Road, which caused the Dodge to collide with an 18–wheeler (an over-the-road tractor with trailer in tow) in the inside lane of west Goodman Road. The Ford pickup truck overturned onto its passenger side and slid into the 18–wheeler before coming to a complete stop.

Setzer was the only occupant of the Ford pickup truck. As a result of the accident, he suffered two broken teeth, a head injury, a neck sprain, lacerations to his right elbow, and abrasions to his abdomen, back, chest, and neck. The Buick was occupied by its driver, Glyness Lannom, and passengers Phillip Bieselin, Jacob Lannom, and Zachary Lannom. Bieselin was left partially paralyzed, and Jacob and Zachary Lannom perished as a result of injuries they suffered in the collision. Glyness Lannom suffered serious injuries as a result of the collision. The driver of the Dodge suffered minor injuries that were treated at the scene of the accident. The driver of the 18–wheeler suffered no injuries.

Southaven Police Officer Jordan Jones was in charge of investigating the accident. After interviewing witnesses and viewing the physical evidence at the scene, Jones found Setzer as he was being treated in a Southaven Fire Department ambulance. Jones testified that the ambulance was still at the scene of the accident, that he was in uniform when he approached Setzer, that he advised Setzer of his Miranda rights, that he asked Setzer for his account of the accident, and that Setzer did not appear to be injured.

Jones said that Setzer appeared angry, aggressive, and uncooperative with the medical personnel who were attempting to treat him in the ambulance. Additionally, Jones testified that Setzer had bloodshot eyes and slurred speech, which Jones deemed to be indicators of intoxication. Jones then administered a portable breath test to Setzer, which resulted in a reading of 000, ruling out the presence of alcohol. Setzer attributed his bloodshot eyes and slurred speech to his injuries.

Setzer was transported from the accident scene to Baptist Memorial Hospital–DeSoto, a distance of approximately one mile. Jones followed the ambulance to the hospital, located Setzer in a private room of the emergency department, reintroduced himself to Setzer, and advised Setzer of his Miranda rights for a second time. Jones testified that Setzer verbally acknowledged that he understood his Miranda rights.

While at the hospital, a nurse drew a blood sample from Setzer for investigative purposes. At the time of the blood collection, Setzer was not under arrest. Additionally, the record is clear that Setzer never gave written consent for blood to be drawn for crime laboratory analysis. However, Jones was adamant that Setzer twice gave Jones verbal consent for the blood draw. Teresa Windham, the nurse who extracted the blood from Setzer, testified that she did not recall whether Setzer had given his consent for the blood draw, but added that she would not have drawn Setzer’s blood at the request of Jones without consent from Setzer.

The report generated by NMS Labs said that Setzer’s blood had tested positive for alprazolam in the amount of 73 ng/mL. The NMS Labs report also said that the therapeutic range for alprazolam is 10–50 ng/mL.

Setzer was convicted of culpable negligence manslaughter and DUI and sentenced to 15 years. On appeal, he argued the blood draw was taken illegally. MSC affirmed.


Setzer contends that, based on the totality of the circumstances, it is clear that he did not consent to the collection of his blood for the purpose its being used in the State’s prosecution of him.

The trial court denied Setzer’s motion to suppress, and in its written order found that:

a. Officer Jones properly responded to an automobile accident involving four (4) cars within his jurisdiction;

b. The officer determined that a serious accident had occurred and, upon viewing the scene closer, noted two (2) children who, based upon his experience, appeared to be deceased. He also noted another passenger who appeared to be seriously injured;

d. From his investigation, Officer Jones determined that the defendant’s vehicle had rear-ended the victim’s vehicle and pushed it through the intersection;

f. Officer Jones observed at this time that the defendant appeared angry, aggressive and uncooperative. Officer Jones stated that he observed bloodshot eyes and slurred speech which he deemed to be indicators of intoxication;

g. Officer Jones offered the defendant a portable breath test which the defendant took and passed, ruling out the presence of alcohol;

h. Testimony was presented as to the difficulty in time of obtaining a warrant and the fact that blood intoxication evidence would dissipate over time;

i. Officer Jones went to defendant Setzer’s room in the Emergency Room at Baptist–Desoto hospital to request consent to draw Setzer’s blood. Officer Jones once again read Mr. Setzer his Miranda rights and Setzer said he understood these rights. Defendant Setzer did consent to the drawing of his blood.

j. Officer Jones obtained the services of E.R. nurse, Teresa Windham, to draw the blood. Officer Jones stated he received consent again from Mr. Setzer in the presence of nurse Windham. Nurse Windham testified that she did not remember the officer asking for consent in her presence but did state that she would not have drawn the blood if the defendant had refused.

The trial court, relying on the rationale of Longstreet v. State, 592 So.2d 16 (Miss. 1991), held that, based on these facts, Officer Jones “had probable cause to believe that Setzer had committed the crime of DUI causing death and/or injury and that exigent circumstances existed which authorized his attempt to obtain a blood sample without a warrant.” Additionally, the trial court found that Setzer “knowingly and voluntarily consented to the drawing of the blood sample.”

Although Setzer argues that he never signed a consent form, this court has never held that written consent is required for a blood draw. Therefore, based on the testimony before the trial court, we cannot say that the trial judge erred in finding that Setzer had consented to the drawing of a sample of his blood.

Further, in Longstreet v. State, 592 So. 2d 16 (Miss. 1991), this court held that “blood searches which are based upon probable cause are not illegal.” In this case, Setzer’s vehicle collided with a stationary vehicle as he approached a traffic signal. Officer Jones had considerable reason to believe that Setzer was intoxicated. Specifically, Officer Jones observed Setzer’s being uncooperative with medical technicians who were attempting to treat him at the scene of the accident, and he testified that Setzer had slurred speech and bloodshot eyes.

Consistent with the decision in Longstreet, the trial court did not err in holding that Jones had probable cause to believe that Setzer had committed the crime of DUI causing death or injury.

The trial court did not abuse its discretion in finding that Jones’s actions were supported by probable cause and in finding that Setzer had consented to the search, as those findings are supported by substantial, credible, and reasonable evidence. Moreover, the trial court did not apply an incorrect legal standard to this case. Thus, the convictions and sentences are affirmed.