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State v. Clouse3/31/1999
On January 28, 1998, the Defendant, Lester A. Clouse, was found guilty of driving under the influence (DUI). He was fined $350.00 plus costs and was sentenced to eight months at 75%. Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, he now appeals his conviction and his sentence. The Defendant presents three issues for our review: (1) whether the trial court erred in admitting evidence of the Defendant's blood alcohol test; (2) whether the evidence presented at trial was sufficient to support the Defendant's conviction; and (3) whether the sentence imposed is excessive. We affirm the Defendant's conviction, but remand for entry of a new sentencing order.
On February 23, 1997 at 5:21 p.m., Deputy Ron Smith was summoned to an automobile accident in White County. He arrived at 5:28 p.m. and found a 1996 Grand Am, which had "flipped over tearing out about two hundred (200) feet of barbed wire fence," laying on its side. Smith determined that the Defendant, who was driving the vehicle at the time of the accident, had lost control of the vehicle, and the car had skidded approximately six hundred feet before overturning. Smith testified that the asphalt road "plainly" showed approximately six hundred feet of skid marks. Smith also determined that the Defendant was accompanied by three passengers at the time of the accident.
Smith testified that while at the scene of the accident, he observed the Defendant and noticed that "he had bloodshot colored eyes, and he was unsteady on his feet." In answer to questions posed by Smith, the Defendant admitted that he had been drinking. However, according to Smith, the Defendant did not state that he had consumed alcohol only after the accident; nor did the Defendant mention any mechanical difficulties with the car.
The Defendant was administered three field-sobriety tests - the nine-step walk on the line heel to toe, the one-leg stance, and the nose touch - all of which he failed. Smith therefore arrested the Defendant and transported him to the White County Hospital, where he consented to a blood alcohol test. The test was administered at 6:25 p.m.
Special Agent Michael Little of the Tennessee Crime Laboratory testified about the results of the blood alcohol test. He stated that the test revealed a blood alcohol content of .14% and explained that " t would take approximately seven (7) to ten (10) drinks to get to that level with the drink being twelve (12) ounces of beer, one ounce of hard liquor, or four (4) to five (5) ounces of wine" within an hour and on an empty stomach. However, he also testified that "at 6:25 [the Defendant's] blood alcohol could have been rising or sinking" and concluded that at the time of the accident, the Defendant's blood alcohol content "could have been higher; it could have been lower; it could have been the same." Finally, he stated, "within an hour's time, assuming that before that time [the Defendant's blood alcohol content] had reached his maximum level and was coming down, I would expect his range to be a .12 to a .13, one hour prior to the test."
The Defendant testified that the wreck was caused by problems with the car's tires which caused the car to "come up on three (3) wheels" and a back tire to "break down off the rim," forcing the vehicle into a mailbox before the car flipped. He stated that there were "no black [skid] marks on the road" after the accident. The Defendant further testified that he did not consume any alcoholic beverages prior to the accident and claimed that he had not consumed alcohol for three to four years before the accident because he was a recovering alcoholic. However, he testified that after the accident, he walked behind the wreck
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