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State v. Lazaro9/18/2001
Defendant was convicted by a Bedford County jury of DUI, second offense, Tenn. Code Ann. § 55-10-401, and driving while license revoked, second offense, Tenn. Code Ann. § 55-50-504, both Class A misdemeanors. Following a sentencing hearing, the trial court ordered Defendant to serve a sentence of 11 months, 29 days, with all but 90 days suspended, for the DUI conviction and a sentence of 11 months, 29 days, with all but 60 days suspended, for his conviction of driving while license revoked. The trial court further ordered that the sentences be served consecutively, for an effective sentence of 150 days confinement, and that Defendant pay a total of $3600 in fines. On appeal, Defendant raises the following issues: (1) whether the trial court erred in allowing the arresting officer to testify concerning the results of Defendant's blood alcohol test without first complying with the requirements set forth in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992); (2) whether the trial court erred by considering Defendant's national origin prior to sentencing; and (3) whether the trial court erred by ordering that Defendant's sentences be served consecutively. After a thorough review of the record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
Thomas T. Woodall, J., delivered the opinion of the court, in which David G. Hayes, J. and Terry Lafferty, Sp .J., joined.
OPINION
Factual Background
At approximately 8:00 a.m. on September 18, 1999, Officer Charles Kimbrill, of the Shelbyville Police Department, was traveling southbound on North Main Street when he observed Defendant's vehicle traveling in the opposite direction. His radar unit showed that Defendant's vehicle was traveling at 60 miles per hour. The posted speed limit was 40 miles per hour. Kimbrill turned around, switched on his blue lights, and stopped Defendant on Hickory Drive.
Officer Kimbrill approached the driver's side of the van and asked to see Defendant's driver's license. (Defendant spoke only Spanish; he understood no English. Kimbrill claimed to be "semi-fluent" in the Spanish language.) Defendant replied he did not have a license. Kimbrill requested that Defendant exit the vehicle, and Defendant complied. Kimbrill testified at trial that Defendant was unsteady on his feet. In addition, there was the strong odor of beer on his person, his eyes were glassy and bloodshot, his face looked tired, and he had what appeared to be pieces of moist food or vomit on his jacket. Defendant did not appear agitated at the time, and he cooperated fully in answering Kimbrill's questions. Kimbrill asked Defendant whether he had been drinking, and Defendant replied that he drank one beer. Defendant told Kimbrill that he was tired because he had just finished a twelve-hour shift at work, and he was speeding because he did not want to be late to his second job. Based on his experience with intoxicated persons, Kimbrill deduced that Defendant was driving under the influence of an intoxicant and arrested him for DUI and driving without a license. Kimbrill testified that he did not ask Defendant to perform any field sobriety tests because he believed he would be unable to properly translate the procedures so that Defendant would understand them.
When Officer Bobby Peacock arrived to provide backup, Kimbrill was speaking to Defendant in Spanish. Peacock testified that he did not understand what either of them were saying, but he noticed that Defendant was unstable on his feet and a strong odor of alcoholic beverage was emanating from him. Defendant also had red eyes and some type of food or "vomit" on his jacket. Based
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