Court of Criminal Appeals of Tennessee, Nashville
Session January 14, 2014
Appeal from the Circuit Court for Cheatham County No. 16332 Larry J. Wallace, Judge
Chris Young, Ashland City, Tennessee (on appeal) and Dale M. Quillen and Kenneth D. Quillen, Nashville, Tennessee (at trial) for the appellant, Iris A. Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; Margaret F. Sagi, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Jerry L. Smith, J.
ROBERT W. WEDEMEYER, JUDGE
I. Facts A. Trial
This case arises from a traffic accident involving the Defendant that resulted in the serious bodily injury of a passenger in the other car involved in the accident. The Cheatham County grand jury indicted the Defendant for DUI, a Class A misdemeanor, and for vehicular assault, a Class D felony. At the Defendant's trial on these charges, the parties presented the following evidence: On August 24, 2010, Lindsay Howard, who was seventeen at the time of the accident, was driving her 1992 Chrysler Lebaron home from school at around 3:30 p.m. Her fifteen-year-old brother, Jacob Howard, and her thirteen-year-old friend "Mika, " were passengers in her car. Jacob Howard was sitting in the back seat. Ms. Howard was stopped on a two-way road with her turn signal illuminated, waiting to turn left onto the road where she lived, when the Defendant hit the back end of her vehicle. The impact of the collision propelled Ms. Howard's vehicle into the lane of oncoming traffic.
The impact of the collision rendered Ms. Howard's vehicle doors inoperable. Ms. Howard climbed out of the vehicle through her driver's side window. She then attempted to assist Mr. Howard out of the rear passenger window, but Mr. Howard informed her that his leg was broken and that he was unable to exit the vehicle. Ms. Howard retrieved her telephone from the trunk of the car and called 911. Before emergency responders arrived, Ms. Howard checked on the Defendant, who was sitting in the grass, and learned that she was fine. Emergency responders used the "jaws of life" to open Ms. Howard's vehicle's door and an ambulance transported Jacob Howard to the hospital, his femur broken. A neighbor took Ms. Howard to the hospital.
Trooper Julio Lassalle, who responded to the accident scene, asked the Defendant questions about the accident. The Defendant stated that she did not notice Ms. Howard's vehicle before crashing into it. The trooper noticed that the Defendant's eyes were red and that she had "pin pointed" pupils. He asked the Defendant if she had consumed any alcohol, and the Defendant denied any alcohol consumption. Trooper Lassalle did not notice the odor of alcohol, so he asked the Defendant if she had taken any prescription medication. The Defendant told him that she took Ativan three times a day and had been doing so for three years.
Trooper Lassalle noted that the Defendant was "lethargic, " "slow moving, " and had slurred speech. She was slow to respond to his questions. The Defendant, who was sixty-four years old, consented to undergoing field sobriety tests. Trooper Lassalle gave the Defendant the "nine step walk and turn, " the "one-leg stand, " and the "finger to nose" tests. The Defendant did not perform well on the tests, giving the officer multiple clues that she was impaired. Trooper Lassalle video-recorded the field sobriety tests, and they were played for the jury. Based on the totality of the circumstances, Trooper Lassalle determined that the Defendant was impaired and should not have been driving a vehicle. He determined that the Defendant's impairment was the primary factor in the crash, and he arrested her for DUI. The Defendant consented to a blood test. Malinda Quinn, a special agent forensic scientist with the TBI and an expert in the field of toxicology, testified that the Defendant's blood contained 28.4 nanograms per milliliter of Lorazepam, the brand name of which was Ativan, a member of the benzodiazepines class. This was within a normal or therapeutic dosage. Ms. Quinn explained that this class of drug slows the signals to one's central nervous system, helping decrease anxiety or assisting in sleep. The drugs, however, also slow critical judgment, meaning it would take one longer to see a threat in a roadway. The Defendant's blood tested negative for other drugs, including alcohol.
The Defendant testified on her own behalf, stating that she was sixty-six years old and married. She had five grandchildren, and she and her husband had custody of four of their five grandchildren. She had three of the grandchildren, ages sixteen, twelve, and eleven, with her at the time of the accident. The two younger grandchildren, who were seated in the backseat of the car, were engaged in an argument immediately before the accident. The Defendant said that this argument was what distracted her and caused her not to see Ms. Howard's vehicle. The Defendant stated that she had undergone knee replacement surgery, causing one leg to be almost an inch shorter than the other leg. The Defendant stated that she took her medication as prescribed and was not impaired by the medication.
During cross-examination, the Defendant agreed she was driving a large SUV, a Ford Expedition, at the time of the accident. The Defendant stated she was prescribed Ativan to address her anxiety.
Based upon this evidence, the jury convicted the Defendant of DUI, first offense, and of vehicular assault. The trial court merged the DUI conviction into the conviction for vehicular assault.
B. Motion for Judicial Diversion
The Defendant filed a notice of mitigating factors, and the State responded with its notice of enhancement factors. The Defendant then filed a motion for judicial diversion. The trial court held a sentencing hearing, wherein it addressed the application for judicial diversion, and during which the parties presented the following evidence: The Defendant's husband, Glen Jones, testified that he and the Defendant had been married for more than twenty years. He described them as having a "good home" and attending church. He said the Defendant was a good grandmother, noting that they had raised four of their grandchildren, sending them all to a Christian school. Mr. Jones said neither he nor his wife consumed alcohol.
Mr. Jones testified that the Defendant was upset and expressed remorse on the day of the accident. She was upset that others were hurt but also that her own grandchildren could have been injured. Mr. Jones said that the Defendant had never previously been convicted of a crime and that the loss of her driver's license would be "crippling" to them. He said he considered her a "safe" driver.
During cross-examination, Mr. Jones conceded that the Defendant had twice before received speeding citations and had also been involved in one other car accident.
During argument, defense counsel noted that the judicial diversion statute, Tennessee Code Annotated section 40-35-313, did not exclude vehicular assault. The State countered that DUI, the lesser-included offense in this case, was not an offense for ...