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State v. Flittner12/14/2001
Assigned on Briefs May 16, 2001
The appellant, Gregory Flittner, was convicted by a jury in the Williamson County Circuit Court of driving under the influence with a blood alcohol level of .10% or more. The trial court sentenced the appellant to serve eleven months and twenty-nine days in the Williamson County Jail and further ordered that all but seven days of the appellant's sentence be suspended. On appeal, the appellant raises the following issues for our review: (1) whether his blood alcohol test was taken voluntarily; (2) whether the trial court erred in refusing to charge the jury with driving while impaired (DWI) as a lesser-included offense of driving under the influence (DUI); (3) whether the trial court erred in failing to require the State to turn over "all results of reports and scientific tests . . . in the possession of the State" pursuant to the appellant's motion to compel; (4) whether the trial court's instruction on a blood alcohol content of .10% or more as a presumption of intoxication under Tenn. Code Ann. § 55-10-401(a)(1) (1998) and a blood alcohol content of .10% or more as an element of the offense under Tenn. Code Ann. § 55-10-401(a)(2) was so unclear as to confuse or mislead the jury; and (5) whether the trial court erred in allowing the arresting officer to testify that he had released one hundred and fifty (150) people whom he had previously stopped for DUI. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
Norma McGee Ogle, J., delivered the opinion of the court, in which Jerry L. Smith and John Everett Williams, JJ., joined.
OPINION
I. Factual Background
On May 25, 1998, shortly after 10:00 p.m., Officer David Hawtin observed the appellant's vehicle drifting within his lane of traffic, crossing the double yellow line, braking for no apparent reason, and failing to stop at stop signs until his vehicle had entered the intersection. Officer Hawtin suspected that the appellant was tired or intoxicated and signaled for the appellant to stop his vehicle. The appellant continued for approximately two and a half blocks after the officer activated his blue lights. When the appellant finally stopped his vehicle, Officer Hawtin approached the driver's side of the vehicle and instructed the appellant to roll down his window. As the appellant complied with his request, Officer Hawtin detected a strong odor of alcohol. He also noticed that the appellant's clothing was disheveled and the appellant looked sleepy.
In response to Officer Hawtin's question regarding how much alcohol he had been drinking, the appellant initially denied that he had consumed any alcohol. However, after the officer repeated the question, the appellant admitted that he had been drinking with friends. At that point, Officer Hawtin asked the appellant to step out of the vehicle. Officer Hawtin testified that the appellant had difficulty getting out of the vehicle and appeared unsteady on his feet after he stepped outside. After further questioning, the appellant finally conceded that, from 8:00 to 10:00 p.m. that evening, he had consumed three Killian's beers. Officer Hawtin then requested that the appellant take some field sobriety tests in order to determine the extent of the appellant's intoxication. Officer Hawtin also informed the appellant that, if he refused to take a test to determine his blood alcohol content, the appellant's driver's license could be suspended. In response, the appellant evaded the officer's requests and maintained that he did not know if he should take the field sobriety tests. After
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