### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
STATE OF TENNESSEE v. SUSAN BLACKBURN
Direct Appeal from the Circuit Court for Williamson County

No. I-87-498 Donald P. Harris, Judge

No. M1999-00295-CCA-R3-CD - Decided July 25, 2000

The Defendant, SusanBlackburn, was charged with driving under the influence of an intoxicant and driving with a blood alcohol content of .10 percent or

more. She was subse

quently tried by jur

y in Williamson County and found guilty of third-offense driving under the influence. In this appeal as of right, the Defendant argues that the trial court erred by overruling her motion for mistrial based
on prosecutorial misconduct, by improperly instructing the jury concerning theDefendant's level of blood alcohol concentration, by allowing theprosecutor to make improper remarks during closing arguments, and by improperly denying the Defe

ndant's motion to supp

ress the results

of her blood tests. We hold that the trial court properly overruled the Defendant's motion for mistrial based on prosecutorial misconduct, that th e trial court prop

erly instructed th

e jury wit

h regard t o the Defendant's blood alcohol conc entration, that the

trial court did not a

buse its discretion by overruling the Defendant's objection to remarks made during closing arguments, and that the trial court did not
err by overruling the Defendant's motion to suppress the results of her blood tests. Accordingly, we affirm the Defendant's conviction.
Tenn. R. App. 3 Appeal as of Right; Judgment o

f the Trial Court A

ffirmed.

W ELLES , J., delivered the opinion of the court, in which S MITH , J., and W OODALL , J., joined.
Lee Ofman, Franklin, Tennessee, for the appellant, Susan Blackburn.

Paul G. Summers, Attorney General and Reporter, Kathy M

orante, Assistant

Attorney Genera

l, Ron Davis, District Attorney General, Lee Dryer, Assistant District A ttorney Genera

l, for the appellee, State of Tennessee.

OPINION

On April 13, 1998, the Defendant, Susan Blackburn, was indicted by the Williamson Cou

nty GrandJury on charges o f driv ing under t he influence of an intoxicant and driving with a blood alcohol concentration of .10 percent or more. The third count of the ind ictment a sserted that the1 Because the transcript of the trial in this case consists of a video record, the spelling of names of witnesses may be inaccurate.
-2- Defendant

had been previously convicted of two prior D.U.I.'s. Following a jury trial conducted on December

8 and 9, 1998, a Williamson County jury convicted the Defendant of third-offense driving under the influence. She received a sentence of eleven months, twenty-nine days incarcer ation and
was placed

on eleven months, twenty-nine days supervised probation, conditioned upon her serving 150 days "day-for-d

ay" and upon her pa

rticipation in an a

lcohol treatment p

rogram. The trial court also revoked the Defendant's driving privileges for five years and fined her $2,500.

The Defendant now a

ppeals as of right from the j udgment of the trial court, raising the following issues for our consideration : ( 1) whether the trial court erred by overruling the Defendant's moti on f

or mistrial based on prosecutorial misconduct; (2) whether the trial court improperly

instructed the jur

y on th e .08 percent presumpti on pursuant to Tennessee Code Annotated § 55-10-408(b) aft er the Defendant had been indicted on a charge of driving with a blood alcohol concentrationof .10 percent; (3) whether the trial court erred by allowing the prosecu tor to make improper remarks during closing arguments; and (4) whether the trial court improperly denied the Defendant's motion to suppress the results of her blood tests. We affirm the judgment of the t ria l court.

The Defendant in

curred the cha

rges in this case o

n January 13, 1998 . Officer Bill Ball 1 of the Williamson County Sheriff's Department testified at trial that he was driving to work at approximately

10:30 p.m. when the Defendant's car t urne d onto the road in front of his vehicle. When the Defendant increased her speedto fifty-five miles per hour in a thirty-five mile-per-hour speedzone, Officer Ball activated his emergency equipment. The Defendant, who had been traveling in the le

ft-hand lane, pu

lled to the right-hand lane and stopped for a moment. However, before Ball could get out of his car, the traffic light at which the Defendant had stopped turned

green, and the Defendant turned left from the right-hand lane a cross the left-ha nd lane of traff

ic. Ball followed with his lights and siren still activated unt il the Defendant s

topped at a stop sign . As Ball began to exit his vehicle in order to approach the Defendant's car, the Defendant again pulled forward. She finally came to a full stop a couple of blocks past where she had first turned left.

Officer Ball stopped behind her, exited his vehicle, and approached the Defendant's car. The Def endant was sitting in the car with the motor running, but apparently was initially unaware o f Ball's presence. Beca

use the Defenda

nt would not roll down her window, Ball opened her door and reached inside the vehicle to turn off the motor. Ball asked the Defendant how much she had had to drink, and she responded that she had had three or four drinks. Ball next asked the Defendant if she knew where she was, and she responded that sh

e was in Brentwood

, although she was a

ctually in Franklin. Ball testif

ied that the Defe

ndant reported sh

e had just l eft " the country club in Brentwood," which he understood to mean the Brentwood Country Club.-3-

Officer Ball requested that the Defendant get out of her car, but the Defendant did not seem to understand the of

ficer's question

s. Ballstated that he eventually "coaxed" the Defendant out of the car, and when she emerged, she was unable to stand o r walk on her own. Ball and Officer Debbie Rogers, whom Ball had summoned as "ba ck -up," helped the Defendant to Ball's police vehicle and put her inside. Ball stated that he did not have the

Defendant perf

orm any field sobr

iety tests because she was unable to stand on her own.

When asked to describe other signs of intoxication he noted on the night of the Defendant's arrest, he stated that he first noticed an odor of alcohol coming fr o m both the Defendant's car and her person. H e also recalled that the Defendant's clothes were in disarray and that her shirt was unbuttoned. He reported that she gave answers which were unrelated to the questions asked of her and that she was laugh

ing and crying inte

rmittently. Ball

testified that she also appeared to "fall[] asleep off and on" while s itting in the back of

his police vehicle. Ball stated, "Frankly, I'd never had anyone that drunk

in my car before ."

Ball testified tha t he became concerned that something else might be wrong with the Defendant,

so at the urging of the Defendant, he called her daughter. Due to a hearsay objection, Ball did not relate to

the jury any conversation that he mayhave had with the Defendant's daughter. Howev er, he testi fied that he did ask the Defendant whether she was on any medication, and he stated that her response was unrelated to the question. Ball also testified thathe did not remember the Defendant ever m entioning b lood pressure problems or telling him that she needed her blood pressure medication.

After escorting the Defendant to his police ve hicle, Officer Ball discussed the implied consent form with the Defe

ndant and asked he

r if she would be wi

lling to go to th

e hos pital and consent to a blood test. She agreed, and they proceeded to a hospital, where she signed an implied consent form and submitted to a blood test. Ball stated that he read the implied consent form to the Defendant

twice before she signed it and that she said she understood the form before signing it. He explainedthat

despite her erratic behavior, she appeared to have periods of lucidity when she seemed to understand wha

t was happening. H

e believed that sh

e understood the f

orm when she signe

d it.

Officer Rogers, also of the Williamson County Sheriff's Department, whom Off ic er Ball summoned on the night of the Defendant's arrest, testified that the Defenda

nt was one of the most intoxicated drivers she had ever seen. She reported that the Defen dant "ramble[d]" in answering questions, that she was crying and laughing at different points during the arrest process, that her clothes were in disarray, and that the seat of the Defendant's pants was wet. Rogers inventoried the Defendant's car and found two twelve-packs of beer, one opened and one unopened. Sever

al cans, some filled with beer, were scattered in the car, and one can, which was sitting on the seat next to the driver, was half full and still cold. In addition, Rogers discovered a cushion on the driver's seat whi ch w as wet. Rogers maintained that the Defendant never mentioned using blood pressure medication, and Rogers reported that when asked whether she took any medication, the Defendant responded

that she did not. Rogers also stated that the Defendant claimed to understand the implied-4-

conse ntform and agreed to take the test. Rogers adamantly maintained that she believed t h e Defendant unde

rstood the form.
Holly Turbeville, a for

ensic toxicologist a

t the Tennessee Bu

reau of Investig

ation Crime Laboratory, presented the results of blood tests perform ed on th e Defendant on the night of her arrest. Turbeville reported that the Defen d ant's blood had an a lcohol concentra

tion of .31 grams percent ethyl alcohol. Turbeville testified that a 150-pound person would have to consume fourteen to sixteen alcoholic beverages on an empty stomach to reach a blood alcohol concentration (B.A.C.) of .31 percent.

Warren James Woodford, a self-employe d chemist who stated that he had conducted independent

examinations of e

vidence in crimin

al trials si nce 1974, testified for the defense. He criticized testing methods employed by the T.B.I. Crime Lab. Specifically, he complained that the laboratory heated blood samples to sixty degrees Celsius , much hi gher than the normal body temp erature of thirty-one degrees Celsius. He testified that the T.B.I. Crime Lab uses the " hea d space method," by which they test the vapor from the blood to determine alcohol con tent . He explainedthat when a blood sa mple is heated to su

ch a temperatur

e, "th e vapor [ri sing from the b lood] get s enriched [with a lcohol] exponent

ially," causing fa

ulty test results. W

oodford also criticized the laboratory's method of transferring blood between test tubes durin g testing and claimed that the machines used in testing did not allow for human error; he explained that technician error could cause results

to "balloon false positive against [the defendant], depending on the amount of blood" put into the machine. In addition, he complained that there is a "sex bias" in B.A.C. testing because some women "read" twice as high as men. Finally, he stated that he had some experience withhandwriting analysis andreported that the Defendant's signature on the implied consent form "look[ed] like a sober signa ture." On cross-e

xamination, Woodf

ord admitte

d that he had never examinedany of the equipment at the T.B.I. Crime Laboratory and that the "trend" nationwide was to increase the temperature to which blood is heated to sixty degrees Celsius. He also admitted that
a person with a hi gh tole rance to alcohol would have better coordination skills at a high level of intoxication than would someone who does not drink.
Stephanie Ann Miller testified that she rented a room from the Def

endant. She recalled that
on January 12, 1998, the day before the Defendant's arrest, she an d Brad Weaver, another of the Defendant's tenants, borrowed the Defendant's car. Miller stated that Weaver bought two "twelvepacks" of Natural Light beer on January 12, and they drank the beer while sitting in the car. Miller reported that they threw the empty cans on the floorboard of the car and did not clean out the car that evening. Miller further testified that she saw the Defendant on the day of her arrest. She stated that she did not see the Defendant drink any alcoholic beverages that day and recalled that the Defe ndant did not appear to be intoxicated when she left for the country club.

The Defendant testified on her own behalf. She maintained that she was not intoxicated at the time of

her arrest and insisted that her strange behavior and confusion was caused by a lack of blood pressure medicine. The Defendant reported that she

was five feet, tw

o and a half inche

s tall and that at the time of

her arrest,

she weighed 194 po

unds. She stated tha

t she had had a stro

ke in-5-

1991, and she took medic

ation to regulate

her high blood pressure. The Defendant recalled that she forgot to take her

medication on January 12, 1998, and she stated that she did not want to take the skipped medication the fo llowing morning, fe

aring that she migh

t "collapse" if

she took too much medication in one day. She explained that she therefore planned to take the medication the following evening, the night of her arrest.

The Defendant

described the events surrounding her arrest as follows: She left her home at 6:15 p.m. to g o to a songwriters' night at the Maryland Farms Country Club, where she arrived at approximately

6:35 p.m. While there, she drank three beers and a glass of wine, which she ordered at approximately 9:30 p.m. She did not feel the effects of alcohol when she left the cou nt ry club, butshe began to feel dizzy a s she drove home due to what she believed was her rising blood pressure. On the way home, she "got lost" and began to feel confused. She saw Officer Ball's blue lights behind her but

initially did not know that the officer was targeting her. She claimed that when she did pull over, she became wedged between a pillow that she used behind her back while driving and the steering whe

el of the car; she

explained that he

r efforts to fre

e herself caused her blous

e to become unbuttoned. The Defendant insisted that shetold Officer Ball she needed her blood pressure medicine because she "wa s afraid [she] w

as g oing to have a stroke." She claimed that she was hurrying home to get her medication at the time she was stoppe d. She s tated that she also asked Officer Ball to call her daughter to get her medicine.

The Defendant claimed to remember being read the implied consent form, but stated that she didnot think it mattered whether she signed the form as long as she got to the

hospital. She claimed she wanted to go to the hospital to have her heart checked. She was unsure of when or where she signed the form. She clai

med she could not c

learly remember

some of the events

on the night of

her arrest because of her high blood pressure, and she admitted that she was incoherent for a while that night. The Defendant maintained that when she reached the hospital, she asked someone to check her blood pressure, but did not know whether anyone actually did so. On cross-examination, the Defendant

insisted that she had never been so intoxicated that she was unable to remember eve

nts. She also claimed never to have "passed out" from drinking.

I. PROSECUTORIAL MI SCONDUCT

The Defendant first argues tha t the trial court erred by overruling her motion for mistrial basedon prosecutorial misconduct. During the cross-examination of defense expert Warren Woodford, the prosecutor asked Dr. Wood ford if he had ever been inside the Georgia Bureau of Investigation Crime Laboratory, and Dr. Woodford responded t hat he had. The prosecutor then asked, "You are no longer allowed to do that, are you?" Dr. Woodford responded that he was in fact allowed in the lab. Counsel for the defense immediately objected, and the trial court

then conducted
a jury-out hearing. During the hearing, the State admitted that it had no "extrinsic evidence" that Mr. Woodford had been

barred from the G.B.I. Crime Laboratory, and counsel for the defense moved for a mistrial. At the c

onclusion of the he

aring, the trial c

ourt determined th

at there was not a sufficient basis for the State's question, but overruled the Defendant's motion for mistrial.-6-

When the jury reentered the courtroom, the trial court provided the following cura tiv e instruction: Ladies and gentlemen of the jury, sometimes a question is asked in such a way as to make one that hears the question think that the questioner ha

s a basis for asking the question. [The prosecutor] asked Mr. Woodford if he had been ba rred from t

he Georgia Crime Laboratory, which would indicate that he had some information that he was basing his question on. . . . Mr. Woodford's answer was that no, he had

not, and t he court has determined that there really wasn't a sufficient basis for [th e prosecutor] to a

sk that question. So I'm just going to ask you to disregard both the question and the response.

The decision of wh

ether to grant a

mistrial is within the sound dis cretion of the tri

al court. Statev. McKinney , 929 S.W.2d 404, 405 (Tenn.Crim.App. 1996). This Court will not disturb such
a ruling absent a finding of an abuse of discretion. State v. Adkins , 786 S.W.2d 642, 64 4 (Tenn.1990); State v. Williams , 929 S.W.2d 385 , 388 (Tenn.Crim.App.1996). Furth ermore, we must presume that the jury followed the t rial court's expl

icit instructions no

t to consider the in

appropriate comment. State v. Smith , 893 S.W.2d 908, 923 (Tenn.1994).
Here, the trial court de

termined that ther

e was not a

sufficient basis

for the question asked of Mr. Woodfo rd, and therefore the question was improper. However, in light of the trial court's promptcurative instruc

tion and the recor

d as a whole, we f

ind that the trial ju

dge did not abuse hi

s discretion in refusing to grant a mistrial.

II. JURY INSTRUCTIONS

The Defendant next argues that the trial court improperly instructed thejury with regard t o her level of blood

alcohol concent

ration. The trial

court first instru

cted the jury that
[a]ny person who commits t he offense of dr

ivin g with an alcohol concent ration in their blood of ten-hundredths of one percent (.10%) or more is guilty of a crime. If you find the d efe ndant not guilty or if you have a reaso

nable doubt as to he

r guilt, you must ac quit her of driving with an alcohol concentration in her blood of ten

hundredths of one percent or more and proceed to consider her guilt or innocence of driving under the influence of an intoxicant which is an alternative form of the same offense.

The trial court next

instructed the jur

y as follows: "Evide

nce from the [blo

od alcohol] test

that there was, at the time alleged, eight-hundredths of one percent (.08%) or more by weight of alcohol in the defendant's blood, creates an inference th at the defendan

t was under the inf

luence of such in

toxicant, and that her ability to drive was impaired."-7-

The Defendant argues that the instruction citing the .08 percent presumptionconflicts with Count II of the indictment in this case, which requires a blood alcohol concentration of .10 percent for conviction. She argues, "By giving the jury both instructions, you risk a verdict of guilt based on .08% whereas the indictment mandates a verdict of .10%. In other wor

ds, in this case, the jury could convict the Defendant on less evidence than called for i

n the indictment." T

he Defendant al

so contends that the instruction citing the .08 percent presumption allowed the jury to "hear evidence of [the] Defendant's prior [D.U.I.] convictions," and she complains that the trial cou rt d id not determine that the Defendant was a multiple offender prior to instructing the jury.

Tennessee Code A

nnotated § 55-10-

401 governs the pr

esent case. It pr

ovides as follows:

It is unlawful for any person to drive or be in physical c ontrol of any automobile

or other motor driven vehicle on any of the public roads and highways
o f the state, or on any streets or alleys, or while on the premises of any shoppin g center, trailer park or

any apartment house complex, or any other premises which is [sic] generally frequented by the public at large, while: (1) Under

the influence of

any intoxicant,

marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or (2) The alcohol concentration in such person's blood or breath is tenhundredths of one percent (.10%) or more.

Tenn. Code Ann. § 55-10-401(a). Furthermore, Tennessee Code Annotated § 55-10-408 states that in order to prove a violation of Tennessee Code Annotated § 55-10-401(a) (1), dr iving under the influence of a n intoxicant, "evidence that there was, at the time alleged, ten-hundredths of one percent (.10%) or more by weight of alcohol in the def

endant's blood sha

ll create a presumption that the defendant's ability to drive was sufficiently impaired thereby to constitute a

violation of § 55-10- 401(a)(1)." Id. § 55-10-408(a).
However, in a case where a defendant has been convicted of one or more prior D.U.I.'s, the jury may pres ume that the de fendant was under the influence of an intoxicant if it finds beyond a reasonable

doubt that his or her

blo od alcohol lev el was .08 percent or higher. See id. § 55-10- 408(b). "The jury, howeve r, is free to disre

gard that presump

tion and rely

strictly on the evidence presented at trial. In addition, the defendant may rebut the presumption by introducing evid ence to the con trary." State v. Michael Elmore Robinson , No. 01C01-9612-CC-00536, 1999 WL 1 6802 , at *3 (Tenn. Crim. A

pp., Nashville, Ja

n. 19, 1999). This Cou

rt has
conclude[d] that in D.U.I. cases, the trial court must make the determination of the defend ant's p rior convictions, if any, outside the presence of the jury. If the trial court finds by a preponderance of the evidence that the defendant has a prior D.U.I. record, then the court shall charge the jury under the standard set

forth in Tenn. Code Ann. § 55-10-408(b).

Id. at *4.-8-

In the present case

, although the tria

l judge apparentl

y did not make an explicit determination that the Defendant h

ad been previously convicted of two prior D.U.I.'s, it is clear from the record that he did make such a finding. During both the hearing on the motion t o suppress and the trial itself, the trial court referred to the Defendan t's prior D.U.I. record, noting her two prior D.U.I. convictions. Her prior record is not now contested.

We find no error in th

e ju ry instr

uctions in this case. In Count I of the indictment, the Defendant

was charged with violat ion of Te nnessee Code Annotated § 55-10-401(a)(1), driving
un der the influence of "an[y] intoxicant, marihuana [sic], narcotic drug or any drug producin g stimulating effects on the central nervous system." In Count II of the indictment, the Defendant

was charged with violation of Tennessee Code Annotated § 55-10 -401(a)(2), driving with a blood alcohol concentrationof .10 percent or more. Thus, the trial judge properly ins tructed the jury th

at it could find the Defendant gu

ilty of driving with

a blood alcohol level of .10 percent. In addition, because the trial judge determined that the Defendant had a prior D.U.I. record, h e proper ly instructed the jury that it could presu

me that the Defenda

nt was driving unde

r the influence i

f it found that she was driving witha blood alcohol concentration of .08 percent. See id. This instruction corresponds with Count I of

the indictment, charging the Defendant with violation of Tennessee Code Annotated § 55-10-401(a)(1).

The Defendant's argument that "the jury could [have] convict[ed her] on less evidence than calledfor in the indictment" is also moot. The jury specifically convicted her of driving with a blood alcohol concentration of .10 percent, in contravention of Tennessee Code An n otated § 55-10- 401(a)(2), and CountI of the indictment, charging her with driving under the influence of an intoxicant, was dis

missed. This issue is t

herefore witho

ut merit.

III. CLOSING ARGUMENTS
During his closing argument, the prosecutor addressed defense expert Warren Woodford's criticisms of the T.B.I. Crime

Laboratory's te

s ting methods. Specifically, he addressed Mr. Woodford's assertion that the lab's method of transferring of

blood between test tubes could involve human error, thus falsely inflating test results. For instance, Woodford suggested that the technician conducting the blood test could allow a small amount of blood to dribble down the outside of the t est tube, resulting in less blood for testing an d thus affecting the amount of alcohol measured by the machines. During closing ar guments, the prose

cutor stated, "co

mmon sense tells

you that if there's less blood [in a sample] , there's less alc ohol," resulting in

a lower "reading." By this, the prosecutor apparently

meant that even if

one were to acc

ept Woodford's c

laim that human err

or could cause faulty test results,the types of erro r mentioned by Woo

dford would cause

lower test results, thereby favoring the Defendant. The Defendant contends that this argument was based on facts outside the record and invol

ved information th

at could only be pr

esented by an exp

ert. Closing arguments must

be temperate, must be based upon evidence introduced during

trial, and must be pertinent to

the is sues being t ried. State v. Cauthern , 967 S.W.2d 726, 737 (Tenn. 1998). As is commonly recognized, closing arguments are an important tool for the parties during-9-

the trial process. Consequently, the attorneys are usually given wide latitude in the

scope of their arguments, se e State v. Bigbee , 885 S.W.2d 797, 809 (Tenn.1994), and trial judges in turn are accorded wide discretion in their control of those arguments, see State v. Zirkle , 910 S.W.2d 874, 888 (Tenn.Crim.App.1 995). Thisdiscretion will not b e interfered wi

th on appeal in the absence of abuse thereof. Smith v. State , 527 S .W.2d 7 37, 739 (Tenn. 1975). To succeed on a claim of prosecutorial mis

conduct, the defendant must show that the argument was so inflammatory or the conduct so improper that i

t affectedthe verdict to his or her detriment. Harrington v. Stat e , 385 S.W.2d 758, 759 (Tenn. 1965).

While it may be that the inference argued by th e prosecutor in this case requires more expertise than common sense, we cannot conclude that the trial court abused its discretion in overruling the Defendant's objection to the argument. As previously noted, the trial judge has wide discretion in controlling closing argu ments. See Zirkle , 910 S.W.2d at 888. Here, the argument objectedto by the defense was only a brief part of a lengthy closing argument. Furthermore, the trial court provided the

following instruct

ion to the jury prior

to deliberations:
Statements, arguments, and remarks of counsel are intended to help yo u in understanding the evidence and applying the law, but they are not evidence. If any statements

were madethat

you believe are

not supported by the

evidence, you sho

uld disregard them. You are the exclusiv

e judges of the fa

cts in this case. Al

s o, you are the exclusive judges of the law under the d i rection of the court. You should apply the law to the facts in deciding this case. You should consider the evidence in light of your own observations and experiences in life.

In view of this instruction, all of the evidence presented at trial, and the relative brevity of t he argument at issue, we are unconvinced tha t the p rosecutor's statement affected the verdict to the detriment of the Defendan

t. We therefore c

onclude that the tr

ial court did not ab

use its discretion by overruling the D

efendant's obje

ction to this argume

nt.

IV. MOTION TO SUPPR ESS
Finally, the Defendant

argues that the trial court erred by overr

uling her motion to su

ppress the results of her bl ood test. T ennessee Code An notated § 55-10-4

06 governs implied c

onsent to "[t]ests for alcoholic or drug content of blood." It provides that

"[a]ny person who drives any motor vehicle in the state is deem

ed to have given c

onsent t o a test for the purpose of determining the alcoholic content of that person's blood . . . ." Tenn. Code Ann. § 55 -10-406(a)(1) . However, it also provides that "[a]ny pers

on who is unconsc

i ous as a result of an accident or is unconscious at the time of arrest or apprehension or otherwise in a condition rendering that

person incapabl

e of refusal, shallbe subjected to the test . . . , but the results of thereof shall not be used in evidence against that person in any court or before any regulatory b

ody without the cons

ent of the person s

o tested." Id. § 55-10-406(b). The Defendant argues that at the time of her arrest, she was "otherwise in a-10-

condition rendering [her] incapabl e of refusal .. . ." Id. She contends that she was so incoherent and confused on the ni

ght of her arres

t that she was inca

pable of refusin

g the test.
When reviewing t

he grant or denia

l of a motion to suppr

ess, [q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduc

ed at the suppress

ion hearing as we

ll as all reasonable and legitimate inferences that may be drawn from that evidence. So long a

s the greater we

ight of the evidenc

e supports the trial court's findings, those findings shall be upheld. In other words, a trial cou

rt's findings of fa

ct in a suppression

hearing will be upheld unless the evidence preponderates otherwise.

State v. Odom , 928 S.W.2d 18, 23 (T enn.1996). Howe

ver, the applica

tion of the law to the

facts as found by the tria

l court is a question

of law which the a

ppellate court r

eviews de novo

. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn.1997).

At the hea ring on the motion to s uppress in this cas

e, three witnesse

s testified. Stepha

nie Ann Miller, the Defendant's tenant, presente d essentially the sa

me testimony as she d

id at trial. In addition, she testified that when the Defendant fails to take her blood pressure medication, she"gets very confused and . . . stutters. . . . Her face turns real red. Sh

e can't catch he

r breath." Officer Bill Ball also presented essentially the same testimony as he did at trial: He described his enc

ounter with the Defendant on the night of her arrest and maintained that "throughout the whole process," she was "in and out" of

coherency. He recalled that there were times during the process when she seemed to understand what he was saying and appeared to be coherent. For example, Officer Ball testified that when she asked him to call her daughter, she provided him with the correct phone number. He reported that he b elieved she unde rstood the implied c

onsent form. He f

urther testified

that both before and after the Defendant signed the implied consent fo

rm, she stated tha

t she was "afraid

to take a shot."

The Defendant testif

ied on her own beh

alf at the hearin

g. Contrary to

her later testimony at trial, she reported tha

t she did not rememb

er Officer Ball

reading the imp

lied consent form to her and did not remember signing the form. She stated that she remembered Officer Ball "mentioning
a hospital," but thought that he mentioned the hospital in reference to her high blood pressure. She fur t her testified that she

remembered bei

ng at the hospital a

nd thought that hospit

al staff would check her blood pressure.

At the conclus ion of the evidence , the trial judge a

ccredited the te

stimony of Office

r Ball, stating that "nothing" the Defendant had said was truthful. He then made the following findings : He pointed out Officer Ball's testimony that the Defendant "understood that if she agreed to take-11-

[the] test, it was going to involve sticking a needle in her arm" and concluded,

So she was able to th

ink clearly

enough that she knew when she took the test what the result of

that would be. And t

hat's certainly

circumstantial e

vidence that woul

d show me that she was also capable of refusing to take the test. So

I find that she was
c apable of refusing to take the test. I might also say that because she probabl y blacked out and couldn't remembe r is really of little

consequence wi

thout some

kind of expert testimony. . . . I understand people who have serious drin king problems black out, but . . . that's not proof that they don't know what the y're doing at the ti

me they do things they can't later remember.

We conclude that the evidence presented at the hearing on the motion to suppress does not preponderate

against the trial court's findings of fact. At the hearing, Officer Ball indicated his belief that the Defendant w

as capable of understanding the consent form and explained why he reached

this conclusion. The trial cou rt spec ifically accredited his testimony over that of the Defendant. As previously

stated, conflicts

in evidence are entrusted to the trial court as the trier of fact. See State
v. Odom , 928 S.W.2d at 23. We thus conclude that the trial court did not err by den ying the Defendant's motio

n to suppress. Accordingly, we affirm the judgment of the trial court.