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State v. Ayers10/29/2001
Assigned on Briefs August 21, 2001
The defendant, David Glenn Ayers, was convicted of driving under the influence , second offense. The trial court imposed a sentence of 11 months and 29 days with release eligibility after service of 75%. In this appeal of right, the defendant challenges the sufficiency of the evidence, argues that the trial court should have set aside the verdict as thirteenth juror, and contends that the sentence is excessive. The judgment is affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
Gary R. Wade, P.J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
OPINION
At 4:00 A.M. on Sunday, July 18, 1999, Officer Shannon Gray of the Clinton Police Department observed a green 1998 Mazda pickup truck being driven erratically along Andersonville Highway. When Officer Gray observed the vehicle cross the center line of the highway by "a foot, foot and a half," and cross "the white fog line on two or three different occasions," he activated his blue lights. When the vehicle, which was being operated by the defendant, did not immediately respond, the officer turned on his siren. When the vehicle stopped, Officer Gray confronted the defendant and smelled alcohol. The defendant explained that he had been at the Eagle's Club in Lafollette, some 25 miles from Clinton, and was on his way to his girlfriend's house in Oak Ridge. At that point, the officer observed a wet spot in the crotch area of the defendant's pants. When asked whether he had consumed any alcohol at the Eagle's Club, the defendant answered that he had had eight or nine beers and two or three mixed drinks. After confirming that the defendant had no medical problems, Officer Gray administered field sobriety tests, including the heel-to-toe walk, one-leg stand, finger dexterity, and alphabet recitation tests. In the opinion of the officer, the defendant was able to perform satisfactorily only on the alphabet and the finger dexterity tests. Officer Gray described the defendant as having slurred speech and "a little red" in his eyes. After placing the defendant under arrest, the officer searched the interior of the vehicle but did not find any containers. The defendant was taken to the Anderson County jail where he declined to take a Breathalyzer examination.
The defendant, who was working as a construction superintendent for a company located in Pennington, South Carolina, at the time of his arrest, testified that he had been working at a job in Jamestown, 68 miles from his residence. His workday began at 4:00 A.M. when he got up for work and ended at approximately 5:30 P.M. After work, the defendant attended a birthday party for a child and later, at approximately 11:30 P.M., he went to the Eagle's Club. At trial, he testified that he had talked with several friends and had consumed three or four mixed drinks, but no beer, before leaving the club shortly after 3:00 A.M. The defendant claimed that on his way to Oak Ridge, he stopped at an Exxon Market to purchase a snack and a cup of coffee. The defendant testified that as he entered Clinton, he hit "a rough spot in the road, and dropped my coffee . . . in my crotch area." The defendant explained that he panicked and briefly let go of the steering wheel, causing him to swerve. He testified that he traveled to a well-lighted area at the Get-and-Go Market in Clinton before stopping his vehicle. The defendant acknowledged that he may have smelled like alcohol but contended that he did "fairly well" on his field sobriety tests except for the one-leg stand, which he "totally flunked." He claimed that he was tired and unable to perform the test because of a ba
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