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State v. Barber10/16/2001
Assigned on Briefs September 25, 2001
The defendant was convicted by a Sullivan County Criminal Court jury of driving under the influence , third offense, a Class A misdemeanor, and driving while license suspended, revoked, or cancelled, third offense, a Class B misdemeanor. On appeal to this court, he argues, inter alia, that the trial court erred in denying his request for a mistrial and in admitting expert testimony on breath alcohol testing devices. After a careful review of the record, we affirm the judgment of the trial court. However, we remand for entry of corrected judgment forms to reflect that the defendant's convictions resulted from jury verdicts, rather than guilty pleas.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed and Remanded for Entry of Corrected Judgments
Alan E. Glenn, J., delivered the opinion of the court, in which Joseph M. Tipton and Joe G. Riley, JJ., joined.
OPINION
The defendant, Steve Barber, appeals his convictions for driving under the influence , third offense, and driving while license revoked, third offense. He was sentenced to eleven months, twenty-nine days with a $7500 fine for the driving under the influence conviction, and nine months with a $2500 fine for the driving while license revoked conviction, with the sentences ordered to run consecutively, for an effective sentence of twenty months and twenty-nine days and fines totaling $10,000. The trial court suspended all but 120 days of the driving under the influence sentence, and all but forty-five days of the driving while license revoked sentence, and ordered that the defendant serve the remainder of his time on supervised probation. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, presenting the following as issues for review:
I. That the jury verdict was contrary to the law and the evidence;
II. That the evidence in the record is insufficient as a matter of law to sustain the convictions;
III. That the evidence at trial preponderates against the guilt of the defendant and in favor of his innocence;
IV. That the Trial Court erred by not allowing the defendant a continuance prior to trial based upon the unavailability of two witnesses the defense deemed crucial;
V. That the Trial Court erred by not declaring a mistrial or granting a new trial after allowing testimony concerning breathalyzer results that were ruled inadmissible by the Trial Court during the trial;
VI. That the Trial Court erred by allowing testimony by an expert on breath alcohol testing devices; and
VII. That the defendant received ineffective assistance of counsel; specifically, defense counsel failed to move for an in limine motion to exclude the results of defendant's breathalyzer test which was subsequently ruled inadmissible.
After a careful review of the record, we conclude that the evidence was sufficient to support the defendant's conviction of driving under the influence , and that no error occurred in the trial court's rulings. We further conclude that the defendant failed to show that he was denied the effective assistance of trial counsel. Accordingly, we affirm the judgment of the trial court.
DISCUSSION
At approximately 1:00 a.m. on March 15, 1998, a Tennessee Highway Patrol Officer patrolling Interstate 81 in Sullivan County came upon a 1989 Mazda stopped in the emergency lane with its headlights on and its engine running. The defendant, the owner of the vehicle, was reclined in the driver's seat. Upon being roused, he exhibited bloodshot eyes, slurre
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