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State v. Blackburn7/25/2000
The Defendant, Susan Blackburn, was charged with driving under the influence of an intoxicant and driving with a blood alcohol content of .10 percent or more. She was subsequently tried by jury in Williamson County and found guilty of third-offense driving under the influence. In this appeal as of right, the Defendant argues that the trial court erred by overruling her motion for mistrial based on prosecutorial misconduct, by improperly instructing the jury concerning the Defendant's level of blood alcohol concentration, by allowing the prosecutor to make improper remarks during closing arguments, and by improperly denying the Defendant's motion to suppress the results of her blood tests. We hold that the trial court properly overruled the Defendant's motion for mistrial based on prosecutorial misconduct, that the trial court properly instructed the jury with regard to the Defendant's blood alcohol concentration, that the trial court did not abuse its discretion by overruling the Defendant's objection to remarks made during closing arguments, and that the trial court did not err by overruling the Defendant's motion to suppress the results of her blood tests. Accordingly, we affirm the Defendant's conviction.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Trial Court Affirmed.
Welles, J., delivered the opinion of the court, in which Smith, J., and Woodall, J., joined.
OPINION
On April 13, 1998, the Defendant, Susan Blackburn, was indicted by the Williamson County Grand Jury on charges of driving under the influence of an intoxicant and driving with a blood alcohol concentration of .10 percent or more. The third count of the indictment asserted that the Defendant had been previously convicted of two prior D.U.I.'s. Following a jury trial conducted on December 8 and 9, 1998, a Williamson County jury convicted the Defendant of third-offense driving under the influence. She received a sentence of eleven months, twenty- nine days incarceration and was placed on eleven months, twenty-nine days supervised probation, conditioned upon her serving 150 days "day- for-day" and upon her participation in an alcohol treatment program. The trial court also revoked the Defendant's driving privileges for five years and fined her $2,500.
The Defendant now appeals as of right from the judgment of the trial court, raising the following issues for our consideration: (1) whether the trial court erred by overruling the Defendant's motion for mistrial based on prosecutorial misconduct; (2) whether the trial court improperly instructed the jury on the .08 percent presumption pursuant to Tennessee Code Annotated § 55-10-408(b) after the Defendant had been indicted on a charge of driving with a blood alcohol concentration of .10 percent; (3) whether the trial court erred by allowing the prosecutor to make improper remarks during closing arguments; and (4) whether the trial court improperly denied the Defendant's motion to suppress the results of her blood tests. We affirm the judgment of the trial court.
The Defendant incurred the charges in this case on January 13, 1998. Officer Bill Ball of the Williamson County Sheriff's Department testified at trial that he was driving to work at approximately 10:30 p.m. when the Defendant's car turned onto the road in front of his vehicle. When the Defendant increased her speed to fifty-five miles per hour in a thirty-five mile-per-hour speed zone, Officer Ball activated his emergency equipment. The Defendant, who had been traveling in the left-hand lane, pulled to the right-hand lane and stopped for a moment. However, before Ball could get out of his car, the traffic light at which the Defendant had stopped turned green,
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