# FILED December 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9812- CR-00424 ) Appellee, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLA S A. MEYE R, DON PALMER BLA CK, ) JUDGE ) Appe llant. ) (DUI-Second Offense)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE : JERRY H. SUMMERS PAUL G. SUM MERS 500 Lindsay Str

eet Attorney Generaland Reporter Chattanooga, TN 37403-3496 MARVIN S. BLAIR, JR. Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 BILL COX Distri ct Attorney General DEAN FERRARO Assistant Distri ct Attorney General City and County

Court Build ing Chattanooga, TN 37402

OPINION FILED ________________________ AFFIRMED DAVI D H. WELL ES, J UDGE-2- 

# OPINION The Defen dant, D on Palmer Black, app eals as of right his convicti on pursuantto a Ham ilton Cou nty jury verdic t find ing him guilty of second offense drivi ng underthe infl uence of an intoxi cant. He rai ses the fol lowing four issues for review: I. Whether the tri al court erred in not finding t he Defendant's st op to be i l legal when t he reasonable suspi cion support ing the stop consisted solely of

weaving within the c onfines o f a single l ane and when no traff ic viol ation occur red. II. Whether the conviction should be reversed because t he evidence was insuff icient to suppo rt a guilty verdict since no rat ional trier of fact coul d have found that the D efenda nt was into xicated to the point that his

drivi ng was impaired. III. Whether the tri al court erred in not allowing th e Defe ndant to assert t he invalidity of his pr ior 198 8 DU I convic tion in th is proceeding when State v. McClintock is no longer

valid l aw after t he 1996 a mend ments to the Po st-Con viction Pro cedure Act. IV. Whether the tri al court erred in not al lowing t he Defenda nt to suppress evidence that he had not taken a chemica l test because the implied c onsen t form was vague and fail ed to appris e the Defenda nt of the signi ficant consequences of not t aking the chem ical test.

The only two witnesse s at trial were Officer Ro bert Starnes of t he Hamilton Coun ty Sheriff ’s Department and t he Defendant. Off icer Starnes testified that o n December 17, 1994, he was a patrol man on the DUI task for ce in Hamilto n County, and his job was t o travelaround Hamilton Coun ty to look for people who
were drivi ng under the i nfl uence. Shortly before 12: 54 a.m. on December 17, 1994, Officer Starnes ob served a 1975 GMC pickup truck travel ing westbound
on Brainerd Road i n Hamilton County. He gave t he following account of what he observed:-3- The vehicle was

drivi ng in thefar ri ght-hand laneover near the cu rb line, an d the vehicl e was drivi ng all over that one l ane. On one or t wo occasions I observed the vehicl e almost actua lly strike the right edge o r c urb of th e edge of the roadway. This seem ed ver y pecu liar to m e at this time, and t his vehic le for no otherappa rent re ason -- a dog hadn ’t run ou t in front o f the ca r, it didn’t appear any other reason, the brake l ights di dn’t come on, any otherreason wh y the vehicle shou ld swerv e over to ward the ri ght side of the curb, so I – to check the driver o ut to verify if ever ything was okay, I ac

ti vated my

emergenc

y eq uip me nt, which incl uded blue lights and siren, to pull the person over to make sure everyt hing was okay. W hile Officer Starnes test ified t hat the vehi cle was swervi ng to the right, he stated that the vehicle did no t leave its l ane of traf fic. He activated his li ghts, and when he got no resp onse from th e vehic le, he a ctivated his sire n. The vehicle pulled over to t he right-hand side of t he road and up and over the sidewalk.

After this testimony, counsel for the Defendant moved to suppress the stop of the Defendant’ s vehicl e based on a lack of r easonable suspic ion to make the stop. During a jur

y-out heari ng, Officer Starnes again explained why he stopped the vehicl e: The vehicle, I observed t he vehicle travel ing westbound. The vehicle was we aving in tha t lane, in the r ight-hand l ane, and the vehicle almost str uck the c ur b on the righ t edge of th e road twice, and that was my pri mary reason to i nvestigate, stop the driver, see if there w as po ssibly a p roblem why he was swerv ing toward t he curb, beca use I d idn’t see h im apply for his brakes [sic] or anything of that natur

e or any dog or any

thing run out

in front of him to cause him to go to the right. The trialcourt expr

essed reservat ions about t he stop, but reserved ruling on the issue until afte r the trial.
Again before the j ury, Off icer Starnes testi fied that as he approached the vehicle, the Defendant ex ited the v ehicle, and Starnes observ ed that the Defend ant was “very unsteady on his feet.” Off icer Starnes asked for t he-4-

Defe ndan t’s driver’ s license, which the Defendant produced, though he “fumbl ed excessively” getting t he license. Officer Starne s stated th at he noticed a very strong odorof an a lcoho lic beve rage c omin g from the De fenda nt’s perso n as w ell
as coming from the vehicle. He alsonoticed t hat the Defendant’ s eyes appeared to be “bloo dshot a nd glass y.”

Officer Starnes test ified t hat he asked the Defendant to perfo rm so me fie ld sobriety tests and asked the Defendan t if he h ad any conditi ons which might impa ir his abil ity to perform the tests. The Defendan t repli ed t hat he was bli nd in his right eye. Officer Starn es then had the Defend ant perform the “one-l eg stand” and the “walk and turn” tests, whi ch t h e Defendant failed. On crosse xaminat ion, defense counsel d irected Of ficer Starnes’ attention to a student manual which theofficer used to teach other offi cers how to detect DUI offenders. Officer Starnes admitted that the m anual sta tes that for th e field sob riety tests to be valid, they must be admini stered in t he prescribed, standardiz ed manner and t hat if any one of

the standardi zed fiel d sobriety test el ements is changed, the validity is c omprom ised. H e also ackn owled ged th at acc ording to the m anua l, “[p]er sons who cannot see ou t of one e ye ma y . . . have trouble with [the walk and turn] test bec ause of poo r depth perce ption.”

Officer Starnes arrested the Defendant and took him to t he Ha milton Cou nty Jail. Once at the jai l, Offi cer Starnes r eq uested that the Defen dant subm it to a chemical test to deter mine the al cohol content of his bl ood. The Defendant refuse d to su bmit to the test and signed t he standard i mplied consent form in use at

the time.-5- The Defendant test ified t hat his righ t eye is a glass eye, which he has as
a result o f an ac ciden t with an aeros ol can . He sa id that h is eyes natura lly beco me red ever

y day, and he had hi s glass eye painted red so t hat it wo ul d match his other eye. He takes t wo medications f

or seizures three times a d ay. He stated th at he is not supposed to drink al cohol wit h his medicati on, buton the evening in que stion, h e dec ided to have a drink b ecau se he had n ot take n his evening dose. He had a sc otch a nd wa ter with h is dinn er at a re staura nt in Chattanooga. H e stated that af ter di nner, hewas going h ome when he saw a friend of his pul ling i nt o the par king lo t of a ba r. The Defe ndan t followe d his friend and went into the bar to bu y his friend a Christ mas drink. He sai d that he ordered a drink for h imself, bu t drank o nly abou t two sips o f it.

After leaving t he bar, theDefe ndan t was g oing h ome . He sa id that he was drivi ng in the ri ght-hand lane of Brai nerd Road and that he di d not know Offi cer Starnes was be hind him un tilhe hea rd t he si ren. He test ified t hat the si ren

“ scared me t o death,” so he pulled over and got out of

the offi cer’s way so that the officer

could go around hi m. He stated that when he was stopped, he hadnot done anything wr

on g, and he d id not bel ieve his d rivi ng abili ties were i mpaired in any wa y.

The Defendant fur

ther test ified t hat as he was pulling ove r to the side of the road, he had a “mini sei zure” tr iggered by being star

tled, whi ch lasted only a rew seconds. He explained t hat such a seiz ure “makes you floppy. ” He stated, “Your
armswill hurt and you’re - - you just do n’t operate right.” When asked to take the breathalysertest, the D efenda nt refuse d beca use he had be en told th at “those machine s . . . aren’t accurate.”-6- The jury returned a verdict f inding t he Defendantguilty of second offense drivi ng under the in fluence. The trialcourt then s entenced t he Def endan t to ele ven months, twenty-nine days i ncarcerati on, with al l but for ty-five d ay s suspended, as well as fifty days of co mm unity service . A fter t he trial , the Defendant again challenged t he legali ty of t he stop of his vehicle. The trial cou rt uphe ld the sto p statin g, “I’m g oing to rule against [ the Defendant] for one reason: On a factualbasis, t hat arti culable suspi cion is i ncreased when he failed to stop in a half a mil e, so that strengthens

the articulable susp icion.” The cou rt went on to explain, 

### ?

I’m findingthere was an art iculabl e suspicion t o stop him, basedon the factthat he was weaving in that l ane, almost hit the curb a coupl e of times. . . . But the fac t it took him a half a mile to stop I think is the clinch ing point.”

I. MOTI ON TO SUPPRESS On appe al, the D efend ant on ce ag ain ch alleng es the initial stop of his automobile, arguing that the evidence discovered as a resul t ofthat sto p sho uld have been suppres sed. W h en review ing the gra nt or den ial of a mo tion to suppress, [q]uesti ons of credibi lity of the witnesses, the weight and value of t he evidence, and re so lution of conflicts in the eviden ce are ma tters entruste d to the trial jud ge as the trier of fact. The party prevaili ng in the trial cour t is entit led to thestrongest legiti mate view of t he evidence adduc ed at t he suppr essio n hea ring as well as all reaso nable and legit imate inferences that may be drawn from that evidence. So long as the greater weigh t of the evi dence supp orts the t rial cour

t’s fi ndings, t hose findi ngs shall be uphel d. In othe r words, a trial co urt’s finding s of fact i n a suppression hearing willbe upheld unless t he evidence prepond erates other wise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996 ). However, the applicat ion of the law to the fac

ts as found by the trial court is a questi on of law which the app ellate court reviews de novo . State v. Yeargan , 958 S.W.2d 626, 629 ( Tenn . 1 997)-7-

(citi ng Beare Co. v. Tenn essee Dept. of Revenue , 858 S.W.2d 906, 907 (Tenn. 1993)). In uphold ing the sto p of the D efenda nt’s autom obile, the tr ial court accreditedOfficer Starnes’ testimony that the Defendant

was weavin g within his
own lane of traffic and that he swerved to the right twice and alm ost hit the curb of the roadwa y. Thus, we must determi ne whether these facts justi fied the stop of the Defendant ’s automobil e.

The stop of an automobile and the detention of its occupants constit utes
a seizure, calli ng into pl ay the protections of the United States and Tennessee Constitutions, even if the purpose of the stop i s limited and the detention is brief. See Wren v. United States , 517 U.S. 8 06, 809 -10 (199 6); Delaware v. Prouse , 440 U.S. 648, 663 (19 79); State v. Vineyard , 958 S.W.2d 730, 734 (T enn. 1997 ). Thus, to justif

y the seizure of an a utomob ile, an officer must at leas t have
reaso nable suspicio n, base d on sp ecific and articulable facts, that the occup ants have been involv

ed in or are abo ut to be i nvolved in cri mi nal activity. See Ornelas v. UnitedStates , 517 U.S . 690, 693 (1996); Prouse , 440 U.S

. at 663; State v. Simpson , 968 S.W .2d 776 , 780 (T enn. 19 98); Vineyard , 958 S.W.2d at 734. “Reasonable suspi cion” is an objective standard, to be determined by t he totality of the circu mstan ces. United States v. Cortez , 449 U.S. 411, 417-18 (1981); State v. Watkins , 827 S.W .2d 293, 294 (Tenn. 199 2). Relevant factors to consider include the officer’s personal observ ations, informati on obtained from
o therpolice office rs or age ncies, infor mation obtained from citize ns, and th e pattern of opera tion of certa in offende rs. Simpson , 968 S.W .2d at 783 ; Watkins , 827 S.W .2d at 294 ; Cortez , 449 U. S. at 418. A cour t must also cons ider the rationalinferences

and deductionsthat a trained office r may dra w from th e facts and circu mstan ces kno wn to him or her. Id.-8- When an officer turns on his blue lights, he h as initiated a stop or se izure of an auto mobile
. State v. Pully , 863 S.W.2d 29, 30 (Tenn. 1993). Therefore, an officer must have reaso nable susp icion to stop the veh icle before turning on t he blue lights. Consequently, we must only consi der the Defendant’s act ions prio r t o the tim e Offic er Sta rnes tu rned o n his b lue ligh ts, even thoug h the tria l cour t
u pheld the s eizu re of the Defend ant’ s veh icl e base d on both t he De fendan t’ s drivi ng before the stop and the Defendant’s f ailure to respond immediately to the officer’s inst igation of a stop.

In this case, the Defendant was weav ing withi n his own lane of traff ic, and he swerved to t he right t wice, al most hitt ing the curb of the roadway . In the words of Officer

Starnes, he was “drivi ng all over that one lane.” Such phenomena has be en described i n other cases we have considered. In State v. Stuart All en Jenkins , C.C.A. No. 01C 01-9712-CR-00590, 1998 WL 917806 (Tenn . Crim. A pp., Nas hvi lle, Dec. 21, 1998), the defendant ’s vehic le was seized af ter an anonymous inform ant rep orted th e vehic le’s licen se nu mbe r to polic e and told police that t he vehi cle contai ned a possible drunk driver . Then, an off icer matched the li cense number to the vehicle and obse rved the vehi cle “weavi ng exces sively in the roadwa y.” Id. at * 2. After consideri ng the credi bilit y and reliability of the i nformant, we stated, “[f] inally , the weavi ng observed by Trooper Bass, albeit within t he defendant ’s lan e of traf fic, i s another ci rcumstance that lends credence to the potential for a drunk driver as sta ted by the inform ant.” Id. at *4. In State v. Donnie Ray Loden , C.C.A. No. 03C01- 9311-CR-00380, 1995 WL 23351 (Tenn. Crim. App. , Knoxvil le, Jan. 19, 1995), we uph eld t he trial court’s findingof reasonabl e suspicion when t he defendant’ s vehicl e was o bserve d “weaving ext remely bad [si c]” and “sor t of huggi ng the whil e [sic]line-9-

on the righ t and ju st wea ving re al bad [sic ].” Id. at *1. The vehic le also “darted over” to enter t he westbound ramp leadi ng onto the interstate. Id. Similarly, in the case of State v. G uy Binette , C.C.A. No. 03C01- 9802-CR-00075, 1999 WL 427606 (Tenn . Crim. A pp., Knoxvill e, June 28, 19 99), we uphe ld the tria l court’s findingof reas onable sus picio n wh en the offi cer ob serve d the d efend ant’s ve hicle
swerve and weave withi n its own l ane, approach t he dividi ng lines a number of times, an d touch the cente r line at least tw ice.

After re viewing t he law as appli ed in these cases , we believe the f act s articul ated by Office r Starnesare sufficien t to establi sh reasonable suspi cion that the Defendantwas drivi ng while under the infl uence. Notonly did t he Defendant
weave within his lan e, but he s werved twice, al most hitt ing the curb. The comment b y Officer Starnes that the Defendant was “drivi ng all over that one lane” indicates that the Defendant was weaving excessively. We conclude that this is evidenc e of erratic d riving justifying th e investi gatory stop of the Defen dant’s veh icle.

W hile we uphold the stop of the De fenda nt’s veh icle ba sed o n reas onab le suspicion of criminal act ivit y, we recogni ze the Defendant’ s concern that “a ‘no weaving’ rule could neve r have realistic boun dari e s [in] determining w hether a stop would be pe rmissi ble” andcauti on that we sanction no such rule. We realize thatno driver

drives per

fectly at al l t imes and that some movement i nside a driver’s own lane of t ravel i s only natur al and does n ot autom atically con stitute reasonable suspicion of cri minal activit y. There must be specific an d articulate evidence of acti ons by a driver which would qualify as errati c drivi ng, as opposed to mere in attention to deta il and impe rfection , before an inve stigato ry stop is-10-

justified based only on t he manner of driving of a vehi cle when no t raffi c laws have been viol ated.

II. SUFFICI ENCY OF THE EVI DENCE Next, the Defendant chal lenges the suffi ciency of the convicti ng evidence. Tennessee Rule of Appe llate Pro cedu re 13(e ) presc ribes th at “[f]indin gs of g uilt in criminal actions whet her by the t rial cour t or jur y shall beset aside i f the evidence is insufficient to support the findi ngs by the trier of f act of gui lt beyond
a reaso nable d oubt.” Te nn. R. A pp. P. 13 (e). Eviden ce is sufficie nt if, aft e r reviewi ng the evidence in the l ightmost favorabl e to the pros ecution, any rati onal trier of fact could have fou nd the essent ial el ements of the crime beyond a
reaso nable doubt. Jack son v. V irginia , 443 U
. S. 307 (1979). In addit ion, because convicti on by a trier of fact dest roys the pr esumption of i nnocence and imposes a presumption of guilt, a convicted criminaldefendant bears the burden of showing that the evidencewas insufficient. McBe e v. State , 372 S.W.2d 173, 176 (Tenn. 196 3); see also State v. Evans , 838 S.W.2d 185, 191 (Tenn. 19 92) (citi ng S tate v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 76), and State v . Brown , 551 S.W .2d 329 , 331 (T enn. 1977) ); State v. Tug gle , 639 S.W.2d 913, 914 (Tenn . 1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its rev iew of theevidence, an appellate court must af ford theState “t he strongest legitimate vi ew of the evidence as we ll as all reas onable and legitim ate inferen ces that may be drawn therefro m.” Tug gle , 639 S.W.2d at 914 (ci ting State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78)). The court maynot “reweigh or re-evalu ate the ev idence ” in the reco rd below
. Evans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court-11-

find particul ar confli cts in t he trialtestimony, the court must res olve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W .2d at 914
. Taking the evidence in the l ightmost favorabl e to the State, the evidence shows that the Defendant was “driving allover” hi s lane of t raffi c, that heswerved twice and a lmos t hit the curb, t hat he did not immediately stop his vehic le when Officer Starnes acti vated his l ights, t hat when he did stop, he pulled his veh icle up and over the si dewalk, that he had a strong odor of alcoholabout his per son and his vehicle , that his “eye ” appea red bloo dshot and glass y, that he fumbled “excessively” for his driver’ s license, thathe admitted drinking, t hat he failed two sobriety tests, and that he refu sed to tak e a brea thalyser te st. All of this evidence, taken toget her, is s uffici ent for a r ational juror

to find the Defe ndan t’s guilt beyon d a reas onable doubt.

The Defendantmakes a strong argument i n which he attacks a nd attem pts to und ermin e the s ufficien cy of all of this evi dence by emphasizing bot h Officer Starnes’ test imony an d the Defendant’s testi mony, but the Defendant’s attack goes to the credi bilit

y an d weigh t of the evi dence, which ar e matters for

the deter mination o f the jur y. Because we cannot re-weigh t he evidence or reevaluate the witnes ses’ credi bi lit y and beca use we are required to reso lve conflicts in testimony in f avor of the jury

verdict , we mus t acce pt the S tate’s evidence. Accordingl y, we fi nd that theevidenc e supp orts the verdi ct rendered by the jury a nd uph old that verd ict.-12- III . ATTACK ON PR IOR DUI The Defendant argues t hat the trial court err ed in not allowing him to assert the invali dity of

his faci ally valid pri or 1988 DUI conviction in thi s pro ceedi ng. He asserts that State v. McClintock , 732 S.W.2d 268 (Tenn. 1987), w hich proh ibits collateral attack s on fa cially valid judgments in subsequent proceedings in which the challenged convicti ons are used to enhance punish men t, is no lon ger va lid law after t he 1986 and 1995 amendments to the Post-C onviction P rocedu re Act, which placed a statute of li mitations on the fi ling of a post-convi ction pet ition. We previo usly considered and r ejected t his preci se argument in the case of State v. Phillip Todd Swords , C.C.A. No. 03C01- 9807-CR-00239, 1999 WL 222702, *6-7 (Tenn. Crim. App. , Knoxvil le, Apr. 14, 1999), i n which we stated,

According to our supreme co urt i n State v. McClintock 732 S.W.2d 268 (T enn. 1 987), “ The rule ha s bee n firmly e stablis hed in Tennessee that a fa cially valid , unrev ersed judgm ent in a court w ith jurisdi ction over the subject matter and t he perso n canno t be collate rally attacked in a subsequent pr oceeding except

by the authorizedroutes of

attack .” W e dec line to h old the rule ann ounced in McClintockuncon stitutional follow ing institution of a statu te of limitat ions for post- convicti on petiti ons, as Defendant requests that this Court

hold. Id. at *6 (quot ing McClintock , 732 S.W .2d at 272 ). Accordingly , this issue has no merit.

IV. VALIDI TY OF IMPL IED CONSENT FORM In his fina l issue, th e Def enda nt argu es tha t the trial c o urt erredin not suppressing evidence that he refused to submit to a chemi cal test to determine the alcohol content of his blood. He asserts tha t the evidence sh ould have been suppressed because the implied c onsen t form tha t was use d to obtain hi s refusal
was vague and fail ed to info rm him of the s ignifi cant consequences of refusing or subm itting to such a test.-13- In the case of State v. Whaley , 982 S.W .2d 346, 349 (Tenn. Cri m. App. 1997), we considered t he issue of whet her the impl ied consent form was vague or mislead ing as ap plied to a p erson w ho sub mitted to the test. In that case, the defendantsubmitted to the breathalyser test and then subsequently argued that the results should h ave been suppressed because t he implied consent for m was unco nstit utiona ll y vague and misleadi ng in that it fai led to i nform her of t he consequences of subm itting to the tes t. We noted that the form clearly indicated thatthe purpose of the test i s to determi ne the drug and al cohol content of the
accu sed’s blood an d that the a verage p erson w ould un derstan d that the re sults will be used against hi m. If thetest cou ld not be used to prosecute t he person forthe crime charged, then there woul d be no purpose for administer ing the test. Id. In addition , we reco gnized the prior ho lding by this Court tha t “admoni tions prior to submitt ing to a bl ood alcohol tes t are not req uired to susta in a valid
conse nt.” Id. (citi ng Ki ng v. State , 598 S.W.2d 834, 835 (Tenn. Cri m. App. 1980)). T herefore , we foun d the form to be neith er vague nor mis leading. Id.
Similarly, we do not find the form to be v ague or mislea ding as a pplied to
a person who refuse s to submit to the test . As requi red by Tenn essee Code Annotated § 55-10-40 6(a), the conse nt form signed by the Defendant informed him that he coul d refuse thetest, bu t that if he refuse d, his d river’s license would be suspended. Though the form did not tell hi m that his refusa l could be use d against him as an inference o f guilt, we believe that an avera ge pe rson w ould understand that that could be a possi ble result of r efusa l. Nothing on th e form could have caused him to bel ieve that his refus al would noth ave be en used against him. In addi tion, “ nothing i n the stat ute requir es that a driver be given Miranda- lik e admo nitions” prio r to reque sting con sent to pe rform su ch a test.-14-

See King , 598 S.W.2d at 83 5. We the refore decl ine to hol d that the i mplied consent form is consti tutional ly defect ive and instead hold t hat the Defe ndan t’s refusal to subm it to the test wa s prope rly admitted into eviden ce. See State v. Frasier , 914 S.W .2d 467 (Tenn . 1996); State v. S mith , 681 S.W.2d 569, 570 (Tenn . Crim. A pp. 198 4).
The judgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ DAVID G. HAY ES, J UDGE