Consent for blood draw was voluntary


In 2006, after having spent the day with his family, Bailey Trippe and Kathy Krystine Harris were at Trippe’s parents’ home watching cartoons and looking after Trippe’s two-year-old daughter. Trippe and Harris left the house at approximately 11:40 p.m. in Harris’s vehicle, a green 2000 Mercury Mountaineer.

Shortly thereafter, a collision occurred on Goshen Road near Nazary Lane between Highway 25 and Highway 16 in Leake County, Mississippi, which involved the vehicle belonging to Justin Brent Turner and the vehicle driven by Trippe. The exact events leading up to the collision were disputed.

Turner told Deputy Jim Moore of the Leake County Sheriff’s Office that he was coming up Goshen Road toward Highway 16, when the vehicle driven by Trippe came out in front of him. Unable to stop, Turner rear- ended Trippe’s vehicle, knocking the vehicle into a tree. As a result, the vehicle burst into flames (Trippe and Harris both died).

Chance Wiskus, Turner’s cousin, testified that after attending a house party, which was also attended by Turner, he left the party and went to Turner’s house. When Wiskus arrived Turner was in his truck on the phone with Trippe. Wiskus got into Turner’s truck and overheard what appeared to be an angry conversation between Trippe and Turner. Wiskus testified that Turner and Trippe agreed to meet at the end of North Jordan Street to fight. Wiskus stated that while on Goshen Road, Turner rear-ended Trippe’s vehicle twice.

Deputy Moore testified that he smelled alcohol coming from Turner’s person and, thus, inquired as to Turner’s consumption of alcohol. As a result of Moore’s observation of the accident scene and the smell of alcohol on Turner, he asked Turner to submit a blood sample to determine his blood-alcohol level. After Turner agreed, Moore asked him to sit in the patrol car until someone could take him to have his blood drawn.

Deputy Mark Wilcher arrived and took control of the scene. After questioning Turner, Wilcher instructed Deputy Cornelius Turner to transport Turner to Leake Memorial Hospital in Carthage, Mississippi to have blood drawn to determine Turner’s blood -alcohol level. While at the emergency room of the hospital, Laura Kelly, a medical laboratory technician, drew Turner’s blood for testing. Both Kelly and Vicky Moody, a registered nurse, signed the consent form as witnessing Turner’s consent to draw blood.

Turner was convicted of DUI manslaughter and sentenced to 35 years. On appeal, he argued he was not Mirandized and his consent was involuntary. MCOA affirmed.


A. Seizure

Under Terry v. Ohio, 392 U.S. 1 (1968), an individual is seized within the meaning of the Fourth Amendment, whenever a police officer accosts an individual and restrains his freedom to walk away. Turner contends that the initial “Terry-type encounter” escalated almost immediately to an arrest without probable cause when Deputy Moore asked Turner what had happened and inquired as to whether Turner had been drinking.

Turner testified that after acknowledging that he had rear-ended Trippe’s vehicle and that he had consumed one beer prior to the accident, he was immediately placed in the back of a patrol car to be transported to the hospital for a blood-alcohol test. Turner alleges he was not read his Miranda rights, and, thus, his seizure was unconstitutional and in violation of the Fourth Amendment.

Turner was not seized within the meaning of the Fourth Amendment when he initially made the statement as to his involvement in the collision and his alcohol consumption prior to the accident. Custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The initiation of questioning by law enforcement of the suspect who is in custody triggers Miranda warnings.

However, in a non-custodial setting where interrogation is investigatory in nature (general on-the-scene investigation), Miranda warnings are not required in order that a defendant’s statements be admissible. Even in this setting, statements must be freely and voluntarily given in order to be admissible.

Turner’s first statement and consent were made during Deputy Moore’s general investigation of an accident scene and not while in custody; hence, when Turner informed Deputy Moore of his involvement in the accident and consented to give a blood sample, he was not seized at the time.

When Deputy Wilcher arrived on the scene, he also questioned Turner as to what had happened and his level of involvement. Turner acknowledged his involvement in the collision and again consented to have blood drawn to determine his blood-alcohol level. Although Turner was never handcuffed, advised of his rights, or told that he was under arrest, he was placed in the back of a patrol car unable to open the door of his own free will. Therefore, according to the definition of seized under Terry, when Turner made the statement to Deputy Wilcher, he was considered seized within the meaning of the Fourth Amendment.

B. Was consent voluntary?

In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the U.S. Supreme Court held that when determining whether consent to a warrantless search was given voluntarily, the court must examine the totality of the circumstances. To be valid, the consent must be voluntary.

Turner contends that his consent at the hospital to draw a blood sample to determine his blood-alcohol level was not voluntary and was defective for the following reasons stated in his brief:
(1) the consent was not the product of an intervening act of free will; (2) the consent was sufficiently attenuated by the initial illegal seizure/arrest; (3) the consent was a flagrant disregard of his rights; (4) the blood draw was done as a routine procedure, not based on probable cause; and (5) the blood draw was done improperly by having witnesses sign consent form without actually witnessing the act and/or hearing the rights read to Turner.

Turner does not suggest that he at any time revoked or attempted to revoke the consent, which was first given to Deputy Moore, to have a blood sample drawn. This first consent was given in a noncustodial general-on-the-scene investigation. That consent remained valid until it was revoked, or the blood draw was completed. Because the first consent given to Deputy Moore was valid, it was not necessary that the second consent given to Deputy Wilcher be valid, as it was merely surplusage.

C. Whether the Unconstitutional Seizure Was Cured by Consent

We find this issue is moot. We have found that Turner was not unconstitutionally seized within the meaning of the Fourth Amendment when he first acknowledged his involvement and gave consent to Deputy Moore for a blood sample. Therefore, this assignment of error is without merit.