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State v. Holscher6/15/2000
The defendant was convicted of driving under the influence of an intoxicant and sentenced to 11 months, 29 days, with all but 15 days suspended. In this appeal, the defendant contends that the trial court erred by admitting the results of his breathalyzer examination and that the sentence is excessive. The state met the Sensing requirements for the admissibility of the breathalyzer results, and the evidence does not preponderate against the trial court's determination that the results were admissible. Because the transcript of the sentencing hearing is not included in the record, this court is bound by the trial court's sentencing determination. Accordingly, the judgment of the trial court is affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
Wade, P.J., delivered the opinion of the court, in which Riley and Ogle, JJ., joined.
OPINION
The defendant, Nick Holscher, was convicted of driving under the influence of an intoxicant, first offense. The trial court imposed an eleven month, twenty-nine day sentence, all but 15 days of which was suspended. The defendant was also fined $750.00 and prohibited from driving for one year. In this appeal of right, the defendant argues that the trial court erred by admitting evidence of the results of a breathalyzer examination and that the sentence is excessive. We find no error and affirm the judgment of the trial court.
At approximately 11:25 P.M. on May 2, 1997, Nashville Metro Police Officer Charles Pike observed the defendant traveling on 4th Avenue without his car's headlights illuminated. According to Officer Pike, he arrested the defendant when "he almost rear-ended another vehicle." The defendant, who had a female passenger, "was real slow about pulling over." When questioned, he denied that he had been drinking. Officer Pike observed that the defendant was unsteady on his feet. The officer smelled alcohol and saw three empty beer cans and "one Red Dog beer" inside the vehicle. The arrest and field sobriety tests were videotaped. The jury was allowed to observe the defendant's performance on the tests.
Officer Christopher Herrin was called to the scene to administer the breathalyzer test. While the defendant initially declined to perform the test, he changed his mind after being placed under arrest and informed of the possible consequences of his refusal to undergo a breathalyzer examination. Initially, the machine did not record a result, probably due to interference from a cellular phone which was being utilized by the female passenger in the defendant's vehicle. A second test indicated a 0.19% blood alcohol content.
At trial, TBI Regional Crime Lab Director Landy Wilder, who was responsible for inspecting the breathalyzer machine utilized on the defendant, presented certificates of accuracy from testing made some three months before the arrest and six days afterward. The printout of the test results was made a part of the record.
The defendant, formerly a staff sergeant in the U.S. Army, testified that he had taken his girlfriend to dinner on the evening of his arrest. He claimed that he had a drink at 5:00 P.M., a glass of wine with his dinner, and a third drink as late as 9:30 P.M. He explained that he may have performed poorly on field sobriety tests because of standing water in a depression on a hard ground surface. He claimed that he lost his balance only because he turned awkwardly to face the arresting officer. The defendant contended that he had a "chew of tobacco" at the time of the arrest and that neither of the two officers made any inspection of his mouth. He denied that the alcohol impaired his driving ability.
The defen
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