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State v. Reid9/7/2001
A Davidson County jury found Donald Lee Reid guilty of driving under the influence, first offense. The trial court imposed a sentence of 11 months and 29 days, suspended after service of 15 days confinement, and a fine of $500.00. Reid challenges his conviction, his sentence, and his fine. He raises the following issues on appeal: (1) whether the trial court erred in not conducting a jury-out hearing on the defendant's motion in limine regarding the admissibility of the defendant's BAC test results; (2) whether the trial court erred in allowing the results of the BAC test into evidence; (3) whether the trial court erred in refusing to instruct the jury on driving while impaired as a lesser-included offense of driving under the influence; (4) whether the defendant's sentence is excessive; and (5) whether the trial court unconstitutionally imposed a fine of $500.00 since the defendant did not waive his right for the jury to assess the fine. After a careful review of the record, we remand for a jury to assess the fine but affirm in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Remanded
Joe G. Riley, J., delivered the opinion of the court, in which David H. Welles and James Curwod Witt, Jr., JJ., joined.
OPINION
At around 10:30 p.m. on May 3, 1999, the defendant was driving his vehicle and struck the rear of a vehicle belonging to Charles Robinson, who had just pulled his car to the side of the road following a traffic accident. When Robinson approached the defendant, he noticed the defendant smelled of alcohol and appeared to be unusually relaxed. Officer James Freeman, Jr. assisted with the investigation of the accident. He observed that the defendant smelled strongly of alcohol, was very talkative, and swayed as he walked. The defendant told Officer Freeman he had consumed a few cocktails that evening and had not eaten since lunch.
Officer Freeman asked the defendant to perform two field sobriety tests, the "walk and turn" test and the one leg stand. He did not successfully complete either test. Officer Freeman arrested the defendant and transported him to the Criminal Justice Center for a breath alcohol test.
The tachograph on Officer Freeman's patrol car, which is a device for recording the time of the car's movements, indicated it arrived at the Criminal Justice Center at approximately 11:35 p.m., while the printout from the defendant's breath alcohol test results showed the test was administered upon the defendant at approximately 11:46 p.m., eleven minutes later. Officer Freeman opined that the tachograph readings were incorrect.
Virginia Dwyer, a certified breath alcohol technician, administered the defendant's test on an Intoxilizer 1400 machine. She testified the machine was certified by the TBI every 90 days. Further, she stated the machine was daily tested for accuracy using a "wet bath," a known solution of .10 percent alcohol. Dwyer stated she observed the defendant for 22 minutes, beginning at 11:25 p.m., before administering the test. The defendant did not regurgitate, chew, eat or drink during that time. Furthermore, she observed no foreign matter in the defendant's mouth during this time. The defendant's test results indicated he had a breath alcohol level of .14 percent. Dwyer testified the defendant smelled of alcohol and told her he had consumed several cocktails.
TBI toxicologist John Harrison testified that on April 1, 1999, and again on July 16, 1999, he certified the Intoxilizer 1400 machine used to test the defendant's breath alcohol level on May 3, 1999. Harrison stated the daily "wet bath" tests performed
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