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State v. White12/16/1999
Appellant appeals as of right from the jury verdict finding him guilty of driving under the influence , third offense, and leaving the scene of an accident.
Appellant cites as issues:
1. Whether the evidence was sufficient to find appellant guilty. 2. Whether the trial court erred in admitting evidence of the blood alcohol testing and analysis. 3. Whether the trial court erred in sentencing appellant to a sentence greater than the mandatory minimum sentence for DUI, third offense.
Statement of Facts
Appellant was driving a tractor on a narrow road in Blount County around 11:30 p.m. when he met a pick-up truck approaching in the opposite direction. There was a collision between the two vehicles, causing damage down the side of the pick up truck, and a broken mirror. Appellant continued driving a tractor down the roadway, and Mr. Bivens, the driver of the pick up truck, turned around and pursued the tractor over a mile down the roadway, blowing his horn and flashing his lights. After the tractor stopped, Mr. Bivens approached the appellant, and could smell alcohol and observed that appellant was unsteady on his feet. Appellant was aggressive and belligerent, and began using curse words.
Mr. Bivens called the Sheriff's Department to report the accident, and Officer Patty was dispatched to investigate the accident. Officer Patty testified that appellant was unsteady on his feet and smelled of alcohol, and told the officer that he had drunk "two beers." Appellant initially told Officer Patty that he had not been involved in a traffic accident. Officer Patty observed that the door to the cab of the tractor was folded back with fresh bare metal and loose paint chips. He requested appellant perform field sobriety tests, and observed that he was unsteady on his feet, his eyes were glassy and bloodshot, his speech was slurred, and he was slow responding to the officer's questions. He was unable to perform the field sobriety tests. Appellant stated that he could not perform the test because of a lower back injury.
Appellant agreed to a blood alcohol test, and was transported to Blount Memorial Hospital Emergency Room were a laboratory technician drew appellant's blood from his left arm in the officer's presence. The technician who drew the blood was Terrance P. Glisson, and the laboratory analysis showed a blood alcohol content of .18 gram percent ethyl alcohol.
Appellant testified to the jury that he had nothing to drink that day and that Bivens truck struck the tractor that appellant was driving, and that he stopped and waited on Bivens to arrive after traveling a short distance down the roadway. Appellant stated that he was belligerent and upset because the damage that had been done to the tractor. He explained his inability to perform the field sobriety test because of an injury he had received to his back, leaving him unable to walk or maintain his balance as well as he could before the injury. Appellant denied he told the officer he had two beers that night, and explained that the smell of alcohol came from the tractor.
I.
Sufficiency of the Evidence
The jury accredited the testimony of the witnesses for the state.
In its review of the evidence, an appellate court must afford the state the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom. State v. Tuggle, 639 S.W.2d 913 (Tenn. 1982). The court may not reweigh or re-evaluate the evidence. State v. Evans, 838 S.W.2d 185 (Tenn. 1992). The reviewing court must resolve conflicts in the trial testimony in favor of the jury verdict. Tuggle, 639 S.W
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