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State v. Smith10/19/2001
Assigned on Briefs July 25, 2001
The Defendant was convicted of driving under the influence (D.U.I.) second offense, sentenced to fifty days in jail, and ordered to pay a $2,500.00 fine. The Defendant now appeals, arguing the following: (1) that there was insufficient evidence to convict him of D.U.I., (2) that the trial court erred in admitting the breath alcohol results, and (3) that the trial court erred in not granting a new trial based upon newly discovered evidence. Finding no error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall and James Curwood Witt, Jr., JJ., joined.
OPINION
FACTS
At approximately 8:30 p.m. on February 27, 1998, Officer Jason Benjamin of the Oak Ridge Police Department was on patrol and noticed a pick-up truck with a headlight that was not working. Benjamin followed the vehicle and turned on his blue lights in order to stop the vehicle. Benjamin testified that he was going to issue the driver a repair order. The driver of the vehicle continued for approximately 150 yards before stopping in a parking area beside an apartment complex.
When Benjamin approached the vehicle, he noticed that the driver was having a hard time standing and that as he turned to face Benjamin, the driver "fell into his door." Benjamin explained to the driver that he was being stopped because one of his lights was out. The driver walked around the vehicle to see for himself, and as he did so, Benjamin noticed that the driver smelled of alcohol. Benjamin also noticed that the driver's eyes were bloodshot, that he was unsteady on his feet and that his speech was slurred. Benjamin called for backup and told the driver that he was going to issue him a repair order. Benjamin asked the driver for identification, for which the Defendant "fumbled excessively." As Benjamin finished filling out the repair order, Officer Carl Webb arrived. Benjamin testified that he asked the Defendant if he had had anything to drink that night, and the Defendant replied, "a few."
Benjamin then administered a series of field sobriety tests to the Defendant. The Defendant informed Benjamin that he had a slipped disc; however, he told Benjamin that it would not keep him from standing or walking. As Benjamin explained the tests, the Defendant dropped his repair order. Benjamin testified that the Defendant had trouble picking it up. Benjamin then administered the "walk and turn" test to the Defendant. This test entailed the Defendant keeping his arms down to his side and placing his right foot in front of his left foot with the right heel touching the left toe. However, before Benjamin could finish explaining the test, the Defendant began to lift his right foot off of the ground. The Defendant held his foot up for a couple of seconds and then began to fall to the right. The Defendant told Benjamin that he couldn't do the test. Benjamin agreed that the Defendant was too unsteady to perform the test.
Benjamin next asked the Defendant to perform the "one-leg stand." Benjamin told the Defendant to "put his heels together touching with his feet at about a 45 degree angle or something like that. And when [Benjamin] tell him to, lift whichever foot he desires so that the heel of that foot is about six inches off the ground." Benjamin told the Defendant to keep his hands to his side, look at the foot he was lifting and count from one to thirty. However, Benjamin testified that instead of lifting his foot about six inches from the ground, the Defendant lifted his leg strai
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