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State v. Bean9/18/2001
Assigned on Briefs April 25, 2001
The appellant, Robert G. Bean, challenges his conviction in the Williamson County Circuit Court of one count of driving under the influence of an intoxicant (DUI), third offense. He presents the following issues for our determination: (1) whether the trial court erred in denying the appellant's challenge for cause of prospective juror Thelma Woodard; (2) whether the trial court erred in denying the appellant's motion to suppress the State's use at trial of the videotape of the traffic stop of the appellant's vehicle; (3) whether the trial court erred in refusing to instruct the jury on adult driving while impaired as a lesser-included offense of driving under the influence; and (4) whether the trial court erred in using the appellant's 1996 conviction of DUI to enhance the appellant's sentence. Following a thorough 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 David H. Welles and Alan E. Glenn, JJ., joined.
OPINION
I. Factual Background
In the early morning hours of January 14, 2000, Trooper Richard Cash of the Tennessee State Highway Patrol was seated in his patrol car on the shoulder of Interstate Highway 65 in Williamson County and observed the appellant drive past in an erratic manner. In particular, Cash noted that, although the appellant was driving his vehicle below the posted speed limit, he crossed two lanes of traffic and veered into the emergency lane before returning to a center lane. Cash proceeded to follow the appellant for several minutes, activating video recording equipment in his patrol car. The appellant continued to swerve over the lines demarcating his lane. Accordingly, Cash activated his emergency lights. The appellant did not respond, however, forcing Cash to employ his siren. At this point, the appellant stopped his vehicle on the shoulder of the highway.
When Cash approached the appellant's vehicle on foot, he noticed a strong odor of alcohol emanating from the vehicle. The trooper requested the appellant's driver's license, and the appellant fumbled for his wallet for some time, prompting the trooper to ask the appellant to get out of his vehicle. Despite the trooper's request, the appellant continued his efforts to retrieve his wallet. Accordingly, Cash himself opened the driver's door. When the appellant emerged from his vehicle, Cash noted that the appellant's movements were slow and deliberate, and the appellant appeared to have difficulty maintaining his balance. Additionally, Cash observed that the appellant's eyes were bloodshot, and his speech was slurred. Cash administered the "walk and turn" and "one-legged stand" field sobriety tests, both of which tests the appellant performed "very, very" poorly.
Following his administration of the field sobriety tests, Cash placed the appellant under arrest. Pursuant to Tenn. Code Ann. § 55-10-406 (1998), Cash then requested the appellant's permission to test his blood alcohol content, advising the appellant of the potential consequences of his refusal. The appellant refused to submit to any test, and Cash transported the appellant to the Williamson County Jail.
On April 10, 2000, a Williamson County Grand Jury returned a two-count presentment charging the appellant as a repeat offender with driving under the influence. The appellant's case proceeded to trial on September 6, 2000. In the first phase of the bifurcated proceeding, a jury found the appellant guilty of DUI. In the second phase, the app
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