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State v. Schwartz3/20/1998
OPINION FILED
AFFIRMED
The Defendant, Mary Schwartz, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. She was convicted at a bench trial of driving under the influence of an intoxicant ("DUI"). The trial court sentenced her to thirty days in the county jail, all suspended except for forty-eight hours, and eleven months and twenty-nine days of probation. The trial court also imposed a fine of three hundred fifty dollars ($350), ordered the Defendant to attend alcohol safety school, and revoked her driver's license for one year. In this appeal, the Defendant argues that the evidence was legally insufficient to support her conviction. After reviewing the record, we conclude that the Defendant's issue lacks merit. Accordingly, we affirm the judgment of the trial court.
The State's proof at trial consisted of the testimony of two officers of the Williamson County Sheriff's Department. Detective Barry Kincaid testified that he had been a police officer for ten years and had received specialized training and certification in DUI detection. At approximately 11:40 p.m. on the night of September 14, 1995, Kincaid was driving his marked patrol car south on Highway 431. He was heading home because his shift had recently ended. He observed a vehicle, also traveling south on Highway 431, veer over the center line twice. In addition, the vehicle was traveling at approximately thirty-five to forty miles per hour (35-40 mph) in a fifty-five mile per hour (55 mph) zone. At this point, Kincaid reset his trip odometer. He followed the vehicle for approximately one more mile, during which distance he observed it cross the center line six additional times. After observing the movements of the vehicle, Kincaid suspected that the driver was potentially intoxicated or asleep at the wheel. He therefore initiated an investigatory stop. The Defendant was the driver of the vehicle.
Detective Kincaid testified that as he approached the Defendant's vehicle, he observed the Defendant placing a peppermint candy in her mouth. He asked the Defendant for her driver's license. According to Kincaid, the Defendant took between two and three minutes to locate her license in her purse. She told him that she had been drinking that night but was not drunk. Kincaid asked her to step out of her vehicle to perform field sobriety tests. Upon exiting the vehicle, the Defendant leaned on her car for support. She continued to lean on her car as Kincaid instructed her regarding the field sobriety tests. During the instructions, the Defendant frequently interrupted Kincaid. She also kept repeating that although she had been drinking, she was not drunk. Her inability to pay full attention to the instructions indicated possible impairment, according to Kincaid.
The Defendant indicated that she was blind in one of her eyes. As a result, Kincaid elected not to perform the horizontal gaze nystagmus ("HGN") test. He showed her how to perform the walk and turn field sobriety test. The test was performed on a level roadway surface along the white fog line at the edge of the road. According to Kincaid, the Defendant missed placing her heel to her toe on every step and repeatedly extended her arms for balance. In addition, she counted nine twice (thereby taking an extra step) before turning around. Kincaid testified that the Defendant did not even attempt to perform the correct turn which he had instructed her to do. After turning, the Defendant stopped and began talking to him. She then took three steps back along the line, at which point Detective Kincaid stopped the test. He elected not to have the Defendant perform the one-leg stand test.
After the completi
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