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State v. Butler6/24/2003
s generally frequented by the public at large, while: (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or, (2) The alcohol concentration in such person's blood or breath is ten-hundredths of one percent (.10%) or more. (Emphasis added). For the jury to convict the defendant of driving under the influence of an intoxicant, it had to find that the State proved beyond a reasonable doubt that the defendant drove or was in physical control of a motor vehicle, while under the influence of an intoxicant or with a blood or breath alcohol concentration of .10% or higher, and while the defendant was located in a prescribed area.
According to Tennessee Code Annotated section 55-8-101(31) (1998 & Supp. 2002), the term "motorcycle" is included in the definition of "motor vehicle." Additionally, a Wal-Mart Supercenter would be considered a "shopping center" for purposes of section 55-10-401(a). Moreover, the proof is undisputed that the defendant was intoxicated at the time of his arrest. When he was approached by Deputy Owen, there was a strong odor of alcohol on the defendant's breath, as well as a half-empty bottle of tequila in the defendant's jacket pocket. Subsequently, the defendant performed poorly on three field sobriety tests. Moreover, Officers Johnson and Ferguson testified that the defendant had slurred speech, was unsteady on his feet, and had a breath alcohol concentration of .19%. By his own admission, the defendant drank the tequila shortly before being arrested. Thus, the jury could reasonably find both that the defendant was intoxicated at the time of his arrest and that his breath alcohol concentration was .10% or higher.
In contending that the evidence is insufficient to support his convictions, the defendant argues that the State failed to prove beyond a reasonable doubt that he drove or was in physical control of his motorcycle while intoxicated. Conversely, the State maintains that the evidence demonstrated that the defendant was in physical control of the vehicle, based upon this Court's decision in State v. Lawrence, 849 S.W.2d 761 (Tenn. 1993). After reviewing the record, we conclude that the evidence was sufficient to support a conviction for driving under the influence based either on the theory that the defendant was driving the vehicle while intoxicated or that he was in physical control of the vehicle while intoxicated.
In Lawrence, this Court affirmed a defendant's conviction for driving under the influence when the defendant was found asleep behind the wheel, with his truck parked "completely in the road," by a Johnson County Sheriff's Deputy. Id. at 762. Despite the fact that the engine was not running and the ignition key was in the defendant's pocket, this Court held that the defendant "was in physical control of his automobile within the meaning of [section] 55-10-401(a)." Id. at 765. In doing so, we adopted a totality of the circumstances test for purposes of determining whether a person was in physical control of a motor vehicle or driving a motor vehicle. Id. We noted that such an inquiry is highly factual and that all circumstances should be taken into consideration by the trier of fact when determining whether the defendant actually drove the vehicle or was in physical control of the vehicle in a particular case. Specifically, we stated that relevant factors that the trier of fact should take into account include: the location of the defendant in relation to the vehicle, the whereabouts of the ignition key, whether the motor was running, the defendant's ability, but for his intoxication, to direct the use or non-use of the vehicle, or the extent to which the vehicle
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