1

In lieu of a transcript of evidence, the Defendant filed a statement of evidence in this case. Th us, the facts

upon which our decision is based are derived from that statement of evidence and the videotape of the field sobriety tests.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 8, 2001 Session

STATE OF TENNESSEE v. RUSSELL SNIDER

 Appeal from the Criminal Court for Shelby County

No. 99-05438 Chris Craft, Judge

No. W2000-01240-CCA-R3-CD - Filed June 26, 2001

The Defendant, Russell Snider, was convicted by a jury of third offense driving under the influence

(DUI). He was sentenced to eleven months, twenty-nine days, with four months and twenty-nine

days suspended. In this appeal as of right, the Defendant asserts (1) that he was prejudiced by the

video recording of his performance of field sobriety tests because the video recording depicts an

unqualified officer performing the horizontal gaze nystagmus test and (2) that the DUI sentencing

statute is void for vagueness because it fails to give a person of ordinary intelligence fair notice that

his or her conduct is forbidden by the statute. We hold that the Defendant was not prejudiced by the

admission of the video and that the DUI sentencing statute is not void for vagueness. Therefore, we

affirm the judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined. L.

TERRY LAFFERTY, SR.J., not participating.

Ronald Lucchesi, Memphis, Tennessee, for the Appellant, Russell Snider.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General;

William L. Gibbons, District Attorney General; and James Powell, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The proof at trial established that on November 15, 1998, Officer M. McCollum of the

Memphis Police Department observed the Defendant driving a 1975 Oldsmobile about ten to fifteen

miles over the speed limit in a Memphis residential neighborhood.1 The vehicle did not have a
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license plate. Officer McCollum testified that he activated his blue lights and siren, but the

Defendant did not stop until he reached his home, which was several blocks away.

Officer McCollum testified that the Defendant pulled into his side yard and exited his

vehicle. According to the officer, the Defendant had a strong odor of intoxicants about his person;

he had bloodshot and watery eyes; he was swaying; his reactions were slow; his speech was slurred;

he was “thick-tongued”; and his clothes were soiled and disarranged.

Officer McCollum testified that field sobriety tests were administered to the Defendant. He

explained that in one test the Defendant did not touch his heels to his toes; he used his arms to

balance; and he stepped off the imaginary line upon which he was asked to walk. He said that when

the Defendant was administered the one-leg stand test, the Defendant used his arms to balance; he

put his foot down; and he counted only to fifteen.

Officer B. Coppley of the Memphis and Shelby County DUI Squad was the officer who

administered these field sobriety tests, which were videotaped. Officer Coppley also offered the

Defendant a breath test, which the Defendant refused after being told that he had failed the field

sobriety tests. The videotape of these field sobriety tests was played for the jury. In addition to the

tests about which Officer McCollum testified, the videotape included footage of Officer Coppley

administering a horizontal gaze nystagmus test. Prior to the admission of the tape, the Defendant

objected to the video showing Officer Coppley administering the horizontal gaze nystagmus test

because Officer Coppley was unqualified to administer that test. After a jury-out hearing, the trial

court ruled that the tape would be admitted, but the jury would be instructed not to consider this test,

as the officer was not qualified to administer it. 

The Defendant testified that on the day in question, he had been working on his formerlyinoperable 1975 Oldsmobile. While test-driving the vehicle, the Defendant had gone to purchase

gasoline, and he was on his way home prior to the arrest. The Defendant admitting drinking one beer

that day, but he asserted that he was not intoxicated and that his driving ability was unimpaired. He

further testified that he did not stop immediately because the police car did not have the siren on and

he did not see the blue lights. Once he noticed the blue lights, the Defendant proceeded one block

further and stopped at his own home. The Defendant believed he had passed the field sobriety tests,

and when he was advised that he had failed those tests, he chose not to take the breath alcohol test.

Beverly Snider, the Defendant’s wife, testified that her husband had been working that day

on their second automobile, which had not been operating in some time. She said that her husband

probably had a beer, but he never appeared to be under the influence of intoxicants. Ms. Snider

stated that she never heard a police siren, and she was surprised to realize that her husband was under

arrest in the side yard.

The Defendant’s next-door neighbor, Debbie Oliver, testified that she was present when the

Defendant was arrested. She asserted that the Defendant did not appear to be intoxicated or under

the influence of intoxicants. Like Ms. Snider, she never heard a siren.
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Following the proof and verdict of guilty of DUI, the Defendant stipulated that he had been

previously convicted of DUI on June 11, 1986 and again on March 23, 1990. The Defendant was

then convicted of third offense DUI. 

ADMISSION OF VIDEOTAPE

In this issue, the Defendant presents a rather novel argument. He essentially asserts that the

continuing practice of the Memphis Police Department of videotaping the administration of the

horizontal gaze nystagmus test by an officer not qualified to testify at trial about the results of that

test violates the due process rights of defendants by tainting otherwise exculpatory evidence. In State

v. Murphy, 953 S.W.2d 200 (Tenn. 1997), our supreme court held that testimony concerning the

horizontal gaze nystagmus field sobriety test “constitutes ‘scientific, technical, or other specialized

knowledge.’ As such, it must be offered through an expert witness and must meet the [evidentiary]

requirements” for expert testimony. Id. at 203 (quoting Tenn. R. Evid. 702). The Defendant claims

that the Memphis Police Department routinely and knowingly administers this test by persons who

are not qualified as expert witnesses and who will not be allowed to testify about the test at trial. The

test is videotaped along with the other field sobriety tests. Oftentimes, according to the Defendant,

the videotape of the field sobriety tests will constitute exculpatory evidence because the person

performing those tests will perform in a sober manner. By having those tests on videotape, the jury

is able to see for itself the defendant’s performance on those tests and therefore independently

evaluate whether the defendant was intoxicated. However, the Defendant argues that by

administering the horizontal gaze nystagmus test, the Memphis Police Department “negates the

exculpatory benefits of the video when a jury sees a person perform well on the video, but is then

arrested when the Police Officer looks into the defendant’s eyes and performs this test. . . . A jury

is left with the sense that, while this person appears to be unimpaired, the Police Officer, for some

reason, still saw fit to arrest him for DUI.” The Defendant argues that this type of scenario is

precisely what happened to him in this case and that he was prejudiced because of it. He therefore

asks this Court to reverse his conviction. 

 In this case, Officer Coppley did perform the horizontal gaze nystagmus test on the

Defendant, the test was videotaped along with the other field sobriety tests, and the trial court ruled

that the results of the test were inadmissible because Officer Coppley was not qualified as an expert

witness to administer and testify about the test. Because the trial court found the results of the test

to be inadmissible, it instructed the jury not to consider the test. Nevertheless, the Defendant asserts

that the videotape was exculpatory and that his conviction must have been the result of the jury

seeing the Defendant’s arrest after being administered this test which the jury was not supposed to

consider. While we agree with the Defendant that the videotape was exculpatory evidence in this

case, we cannot conclude that he was prejudiced by the depiction of the horizontal gaze nystagmus

test on the videotape. 

Officer McCollum testified that when he observed the Defendant, the Defendant had a strong

odor of intoxicants about his person; that he had bloodshot and watery eyes; that his reactions were

slow; and that his speech was slurred. Officer McCollum also testified about the Defendant’s poor

performance on the field sobriety tests. The jury was then shown the videotape, which in our opinion
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appears to contradict Officer McCollum’s testimony that the Defendant’s speech was slurred, that

his reactions were slow, and that he performed poorly on the field sobriety tests. Notwithstanding,

all questions involving the credibility of witnesses, the weight and value to be given the evidence,

and all factual issues are resolved by the trier of fact, not the appellate courts. See State v. Morris,

24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

Obviously, the jury accredited the testimony of the officers regarding the Defendant’s sobriety and/or

had a different interpretation than does this Court of the Defendant’s performance on the videotape.

In spite of our finding that the videotape was exculpatory, we cannot find that the Defendant

was prejudiced by the admission of a video of the officer administering the horizontal gaze

nystagmus test. Although the videotape does show Officer Coppley administering the test, that

depiction reveals nothing about the Defendant’s state of intoxication. It simply shows the officer

shining a light in front of the Defendant’s eyes. As asserted by our supreme court, a witness must

explain the underlying scientific basis of the test in order for the testimony to be meaningful to a

jury. Murphy, 953 S.W.2d at 202. The underlying basis of the test was not explained to the jury;

neither officer testified about the test; and the jury was instructed to disregard it. The jury is

presumed to have followed instructions to disregard evidence. State v. Walker, 910 S.W.2d 381,

396-97 (Tenn. 1995); State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim App. 1991). Moreover,

the videotape reveals that the Defendant was informed prior to performing any tests that he was

under arrest for suspicion of DUI. He was then administered the one-leg stand test, the walk and turn

test, and finally the horizontal gaze nystagmus test. Because the Defendant was told on the tape that

he was under arrest prior to taking any tests, the videotape does not give rise to the assumption that

his performance on the horizontal gaze nystagmus test caused his arrest. Because we can find no

prejudice to the Defendant due to the videotape, he is entitled to no relief. See Tenn. R. App. P.

36(b); Tenn. R. Crim. P. 52(a). 

CONSTITUTIONALITY OF DUI SENTENCING STATUTE

The Defendant next argues that the DUI sentencing statute is void for vagueness because it

sets forth two separate standards for determining whether a defendant is a multiple DUI offender.

He asserts that the statute first states that the ten-year period for determining prior convictions runs

from conviction of the last offense to conviction of the present offense, and then the statute

contradicts itself by stating that the ten-year period runs from the date of the last conviction to the

date of the present offense.

“A statute is void for vagueness if it is so vague, indefinite, and uncertain that persons must

speculate as to its meaning, and if it fails to give a person of ordinary intelligence fair notice that his

or her conduct is forbidden by the statute.” State v. Whaley, 982 S.W.2d 346, 348 (Tenn. Crim.

App. 1997); see also Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); United States v.

Harriss, 347 U.S. 612, 617 (1954). However, “[t]he vagueness doctrine does not invalidate every

statute which a reviewing court believes could have been drafted with greater precision.” State v.

Lyons, 802 S.W.2d 590, 592 (Tenn. 1990); see also State v. Boyd, 925 S.W.2d 237, 243 (Tenn.

Crim. App. 1995). The appellate courts have the duty to “adopt a construction which will sustain
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a statute and avoid constitutional conflict if its recitation permits such a construction.” Lyons, 802

S.W.2d at 592. 

“The most basic principle of statutory construction is to ascertain and give effect to the

legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended

scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). This Court is to determine legislative

intent “from the natural and ordinary meaning of the statutory language within the context of the

entire statute without any forced or subtle construction that would extend or limit the statute’s

meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). Moreover, the legislature has

provided that criminal statutes are to “be construed according to the fair import of their terms,

including reference to judicial decisions and common law interpretations, to promote justice, and

effect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-104; see also State v. Owens,

20 S.W.3d 634, 640 (Tenn. 2000). 

 The statute at issue provides as follows:

For purposes of this section, a person who is convicted of a violation of [DUI] shall

not be considered a repeat or multiple offender and subject to the penalties prescribed

in subsection (a), if ten (10) or more years have elapsed between such conviction and

any immediately preceding conviction for a violation. If, however, a person has been

convicted of a violation of [DUI] within ten (10) years of the present violation, then

such person shall be considered a multiple offender and is subject to the penalties

imposed upon multiple offenders by the provisions of subsection (a). If a person is

considered a multiple offender under this subdivision, then every conviction for a

violation of [DUI], within ten (10) years of the immediately preceding violation shall

be considered in determining the number of prior offenses, but in no event shall a

conviction for a violation occurring more than twenty (20) years from the date of the

instant conviction be considered for such purpose.

Tenn. Code Ann. § 55-10-403(a)(3) (emphasis added). The Defendant asserts that this statute is void

for vagueness because in the first sentence, the statute asserts that a person convicted of DUI will

not be a considered a multiple offender if ten or more years have passed between the present

conviction and any immediately preceding conviction, but in the second sentence the statute asserts

that if a person is convicted of DUI, that person will be considered a multiple offender if that person

was convicted of DUI within ten years of the present offense. Thus, the Defendant asserts that in

one sentence, the ten-year period is measured from date of conviction to date of conviction, but in

the next sentence, the ten-year period is measured from date of offense to date of conviction.

We first note that under the Defendant’s interpretation of the statute, his own conduct would

still qualify him as a multiple offender. “[E]ven if a statute may be considered vague relative to its

prohibiting certain conduct, it may be viewed sufficiently clear regarding other conduct.” State v.

Butler, 880 S.W.2d 395, 397 (Tenn. Crim. App. 1994). Thus, even if the statute is considered vague

as to the triggers measuring the ten-year period, the Defendant’s immediately preceding prior

conviction is within the ten-year period, regardless of which way the time-frame is measured. The
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Defendant has two prior convictions: one on March 23, 1990 and one on June 11, 1986. He was

arrested for DUI on November 15, 1998, and he was convicted by a jury on January 26, 2000.

Therefore, both the date of his present offense and the date of his present conviction are within ten

years of his immediately preceding conviction. Becausethe Defendant’s prior convictions are clearly

within the ten-year period no matter how it is measured, the statute is not void for vagueness as

applied to his conduct. Nevertheless, we have also considered the language of the statute, and we

conclude that the statute itself is not void for vagueness. 

We agree with the Defendant that the language used in the statute is confusing, and it

certainly could have been more artfully drafted, but we do not believe that it is so “vague, indefinite,

and uncertain that persons must speculate as to its meaning, [or that] it fails to give a person of

ordinary intelligence fair notice that his or her conduct is forbidden by the statute.” Whaley, 982

S.W.2d at 348. The first sentence of the statute clearly asserts that a DUI offender will not be

considered a multiple offender if ten or more years have elapsed between the present conviction and

any immediately preceding conviction. Tenn.CodeAnn. § 55-10-403(a)(3). This sentence measures

the ten-year period from the date of the present conviction to the date of the prior conviction. Thus,

a person of ordinary intelligence is put on notice that if ten or more years have elapsed between DUI

convictions, he or she cannot be considered a multiple offender. The next sentence of the statute

then provides, “If, however, a person has been convicted of a violation of [DUI] within ten (10) years

of the present violation, then such person shall be considered a multiple offender.” Id. (emphasis

added). The Defendant interprets the use of the words “present violation” to mean “present offense.”

He claims that this sentence measures the ten-year period from the date of the present offense to the

date of the prior conviction. However, looking at the statute as a whole, we believe that the

legislature used the words “violation” and “conviction” interchangeably in the statute. 

Under any interpretation of these first two sentences, it is obvious that the legislature

intended to look back into time at the date of the prior conviction, not the date of the prior offense,

to determine whether a person is a multiple offender. See id. Yet, in the third sentence the statute

asserts, “If a person is considered a multiple offender under this subdivision, then every conviction

for a violation of [DUI], within ten (10) years of the immediately preceding violation shall be

considered in determining the number of prior offenses.” Id. (emphasis added). The legislature

again used the term “violation,” rather than “conviction” or “offense,” when setting forth the ten-year

measuring date. Nevertheless, this sentence is only applicable if a person has been found to be a

multiple offender under the first part of the statute. If a person is a multiple offender under the first

part of the statute, then the statute looks back an additional ten years to determine the number of

prior offenses. It would create an absurd result to follow the first part of the statute and look back

ten years to the immediately preceding conviction to determine whether a person is a multiple

offender, and then, if the person is a multiple offender, look back ten years not from the date of this

immediately preceding conviction but instead from the date of the immediately preceding offense

to determine the number of prior DUI offenses. Yet, if the legislature meant the use of the term

“violation” to mean “offense,” this is just what the statute would require us to do. Moreover, in the

last sentence the legislature limits the total number of years which may be examined in determining

the number of prior offenses to twenty years “from the date of the instant conviction.” Id. It is clear
2We note that another panel of this Court recently reached the same conclusion regarding the measurement of

the ten-year time pe riod using similar analysis. See State v. Sean W. Conway, No. M2000-01263-CCA-R3-CD, 2001

WL 4876 89, at *6-9 (Tenn. Crim. App., Nashville, May 8, 2001).

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that the legislature intended to prevent consideration of any prior convictions occurring more than

twenty years before the instant conviction, rather than the instant offense. We do not see any reason

for the legislature to have decided to measure the total number of years that can be considered from

the instant conviction, while measuring the first ten-year period from the instant offense. Therefore,

we conclude from “the natural and ordinary meaning of the statutory language within the context of

the entire statute without any forced or subtle construction that would extend or limit the statute’s

meaning,” see Flemming, 19 S.W.3d at 197, that the legislature intended to measure the ten-year

period, in all contexts, from conviction to conviction. We likewise conclude that this statute is

accordingly not void for vagueness. 

Furthermore, our interpretation of this statute is supported by its legislative history. Prior to

1998, the statute provided as follows:

For purposes of this section, a person whose convictions for violating the provisions

of § 55-10-401 [the DUI statute] occur more than ten (10) years apart shall not be

considered a multiple offender and the penalties imposed upon multiple offenders by

the provisions of subsection (a) do not apply to such person.

Tenn.Code Ann. § 55-10-403(a)(3) (amended 1998). This statute measured the ten-year period from

conviction to conviction. See State v. Marvin E. Sizemore, No. 03C01-9209-CR-00326, 1994 WL

369733, at *2 (Tenn. Crim. App., Knoxville, July 15, 1994) (holding that the ten-year period is

measured from conviction to conviction). In 1998, the legislature amended the statute by deleting

this language and inserting the language at issue in this case. See 1998 Tenn. Pub. Acts 926. The

bill summary used on all of the legislative calendars indicated that the purpose of the legislation was

to “[c]larif[y] that subsequent violations of DUI law within ten years are to be considered when

determining whether offender is multiple offender.” The Senate sponsor asserted that the only

change from current law was to create a “rolling ten year review,” in which prior convictions

occurring more than ten years from the instant conviction could be considered if the offender had

a conviction within the first ten years. The House sponsor also asserted that the only change the

legislation made was to take care of the problem of DUI offenders who might have three prior

convictions, but only two convictions within the ten year time window; under the new law, all prior

convictions could be considered. Thus, the legislative history establishes that the legislature did not

intend to change the law so that the ten-year period would be measured from the date of the present

offense to the date of the prior conviction, but the legislature intended to change the law so that prior

convictions outside the original ten-year time period could be considered if an offender had a prior

conviction within the original ten-year time period.2
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CONCLUSION

We hold that the Defendant was not prejudiced by the admission of the videotape depicting

the administration of the horizontal gaze nystagmus test and that the DUI sentencing statute is not

void for vagueness. Accordingly, we affirm the judgment of the trial court.

 

___________________________________ 

DAVID H. WELLES, JUDGE