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State v. Whittington11/10/2005
On September 28, 2004, the defendant entered a plea of guilty to driving under the influence , third offense. See Tenn. Code Ann. §§ 55- 10-401, -403 (2003). Pursuant to a plea agreement, the defendant received an agreed sentence of eleven months and twenty-nine days to be suspended to probation after service of 120 days of confinement. The stipulated facts, as stated at the submission of the guilty plea, are as follows:
n . . . April 7, 2003, . . . the defendant was driving and operating a motor vehicle . . . at a high rate of speed. He was clocked [traveling] [sixty-six] miles per hour in a [forty] mile-per-hour posted zone. [The defendant] was stopped for that reason.
The defendant . . . had a strong odor of alcoholic beverage about his breath. His eyes were watery. And he was unsteady on his feet. The defendant was given a test to determine the amount of alcohol in his system, and he registered a .205 on that test.
[The defendant] has two prior convictions for driving under the influence of an intoxicant . . . .
In an order denying the state's motion to dismiss this appeal on procedural grounds, this court summarized the history of this case as follows:
On September 30, 2003, the Shelby County Grand Jury returned a three-count indictment against the [defendant] John Whittington. Count One charged the [defendant] with driving under the influence . Count Two charged the [defendant] with driving while his alcohol content was .20 percent or more, and Count Three charged the [defendant] with reckless driving. The [defendant] subsequently filed a motion to suppress the results of the blood alcohol test claiming that he belched three times during the waiting period, thus invalidating the test results. The trial court denied the motion to suppress.
On September 28, 2004, the [defendant] entered a guilty plea to Driving Under the Influence (DUI), third offense, as charged in Count Two of the indictment, and was sentenced to eleven months, twenty-nine days jail confinement to be suspended after service of 120 days. Counts One and Three of the indictment were nolle prosequied by the State. As a condition of the guilty plea, the [defendant] explicitly reserved a certified question of law challenging the denial of his motion to suppress the results of a blood alcohol test.
In this appeal, the defendant contends that the trial court erred by denying his motion to suppress. He claims that because he belched during the twenty-minute observation period, the test was invalid and the results inadmissible as evidence. The state first asserts that the certified question is not dispositive of this case and thus not properly certified. In the alternative, the state argues that because the evidence established that the defendant did not belch during the waiting period, the trial court did not err by denying the motion to suppress.
The standard of review applicable to suppression issues is well established. When the trial court makes a finding of facts at the conclusion of a suppression hearing, the facts are accorded the weight of a jury verdict. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). The trial court's findings are binding upon this court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson, 878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984). Questions of credibility of witnesses, the weight and value of the evidence, and resolution of conflicts in evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view
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