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State v. Strombergh3/22/2002
On August 21, 1999, the Hamilton County Grand Jury charged the Defendant, James W. Strombergh, with third offense driving under the influence (DUI). Following a bifurcated trial conducted on April 19, 2000, a Hamilton County jury convicted the Defendant of the offense charged and imposed a fine of $10,000. The trial court sentenced the Defendant to serve eleven months and twenty-nine days in the Hamilton County Workhouse, ordered him to attend an alcohol rehabilitation program, and revoked his license for a period of five years. In this appeal as of right, the Defendant presents two issues for our review: (1) whether sufficient evidence was presented at trial to support his conviction, and (2) whether the trial court erred by allowing the State to question the Defendant about his restricted driver's license. Having reviewed the record, we conclude that the trial court improperly admitted evidence concerning the Defendant's restricted driver's license. We therefore reverse the judgment of the trial court and remand the case for a new trial.
The following evidence was presented at the Defendant's trial: Detective James Usry of the Hamilton County Sheriff's Department testified that on August 21, 1999, he was dispatched to an automobile accident involving two vehicles on Signal Mountain. One of the vehicles was driven by the Defendant, and the second vehicle was driven by Joy Clark. When Detective Usry arrived, he observed the Defendant "leaning up against" his truck and "chewing mints." Detective Usry reported that the Defendant "wouldn't let a hand leave the truck" and that the Defendant "was steadying himself by the truck at all times." The detective stated that when he asked the Defendant for his driver's license and vehicle registration, he noticed that the Defendant was moving slowly and noted "a strong odor of alcohol." Based upon these observations, Detective Usry asked the Defendant to perform field sobriety tests. The detective reported that the Defendant performed "very poorly" on the tests and concluded that the Defendant "was impaired . . . to the level where he shouldn't be driving."
Detective Usry testified that since the time of the Defendant's arrest, he had lost his written observations of the Defendant's field sobriety tests and stated that he was "testifying off of . . . a copy of the arrest report." However, he recalled that the Defendant had "difficulty with the test ." Usry testified that the Defendant reported no physical defects or injuries at the scene that would affect his performance on the tests. Usry also stated that the Defendant refused to take a breath alcohol test after the accident.
On cross-examination, Detective Usry testified that after he placed the Defendant under arrest, the Defendant told him that he had been drinking. Usry admitted that he did not include this information in his sworn Affidavit of Complaint, but he claimed that he included it in his notes, which he could not locate before trial. In addition, Usry admitted that he failed to include in his arrest report that the Defendant "smelled strongly of intoxicating type beverage," although he maintained that he had also included this information in his misplaced notes made at the time of the arrest. With regard to his failure to include this information in the arrest report, Usry testified, "I probably made a mistake by not mentioning it." He also admitted that when making five prior DUI arrests, he had noted in each arrest report that he had detected the odor of alcohol on each of the subjects.
On redirect examination, Detective Usry testified that he does not normally include in an affidavit all of the information that he learns at the scene of the crime. He state
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