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State v. Batts2/28/2002
Assigned on Briefs January 23, 2002
The defendant, Richard Lynn Batts, was convicted of driving under the influence , third offense, and violation of the implied consent law. The trial court imposed a sentence of 11 months and 29 days with 120 days' incarceration and the balance to be served on probation for the DUI offense. The judgment provided for a three-year period of license revocation. See Tenn. Code Ann. § 55-10-401(a)(1). For violation of the implied consent law, the trial court imposed a concurrent one-year period of license revocation. See Tenn. Code Ann. § 55-10-406. In this appeal of right, the defendant contends that the evidence was insufficient to establish that he was in physical control of his vehicle. The judgment for violation of the implied consent law is modified to establish that the one-year license revocation period is to run concurrently with the three-year revocation for the defendant's DUI conviction. In all other respects, the judgments are affirmed.
Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed as Modified
Gary R. Wade, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.
OPINION
At approximately 1:30 A.M. on November 4, 2000, Officer Brandon Adams of the South Fulton Police Department, while on routine patrol, observed a vehicle parked behind Dot's Bar. Upon a closer examination, Officer Adams saw the defendant asleep in the front seat of his car. The car keys were in the defendant's left hand. Sergeant David Crocker arrived at the scene in a separate vehicle. Sergeant Crocker identified the defendant, knocked on the window in order to wake him, and asked him to step outside of the vehicle. The defendant had trouble standing, slurred his speech, and smelled of alcohol. While Officer Adams was checking on the status of the defendant's driver's license, the defendant told Sergeant Crocker that he was cold and that he intended to leave the premises. The defendant remarked, "If we are going to stand here all night, I'm going home." The defendant opened the door of his vehicle and tried to start the engine. When "he got back halfway in the driver's seat," the officers handcuffed the defendant and placed him in the back seat of Officer Adams' police vehicle. The defendant refused to submit to alcohol tests. Officer Adams, who returned later to drive the defendant's vehicle to an impound lot, described the vehicle as fully operable. Each of the two officers described the defendant as "very intoxicated," too intoxicated to perform a field sobriety test.
At trial, the defendant admitted that he was intoxicated. Because the bar closed at midnight, he reasoned that he had been in his car for at least an hour and a half. When police arrived, the keys were not in the ignition and the engine was off. The defendant contended that his father, who had driven him to Dot's, left approximately two hours earlier to play pool at a pool hall. The defendant claimed that his father intended to return in order to drive him home. The defendant stated that his intention was to wait in the car until his father came back.
Moss Batts, the defendant's father, testified that he shot pool with his son at Dot's Bar that night but left at about 10:00 P.M. in order to go to the Tennessee Pool Room. Batts stated that he instructed his son not to drive and to wait in the vehicle for his return. He claimed that he gave his son a set of car keys so he could unlock the car door. Batts explained that he decided to go to Paducah, Kentucky, before returning to Dot's Bar at approximately 2:00 A.M. He stated that neither his son nor his car was in the parking lot at the t
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