Court of Criminal Appeals of Tennessee, Nashville
Session Date March 11, 2014
Direct Appeal from the Circuit Court for Williamson County No. II-CR036314 James G. Martin, III, Judge
Steven M. Garner, Franklin, Tennessee, for the appellant, Karl P. Cooper.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Kim R. Helper, District Attorney General; and Carlin C. Hess, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams, J., joined. Jerry L. Smith, J., not participating.
NORMA McGEE OGLE, JUDGE
I. Factual Background
About 1:30 a.m. on November 5, 2011, Sergeant Rick Clouse of the Franklin Police Department was on patrol near the intersection of McEwen Drive and Carothers. Sergeant Clouse, who was the supervisor of the midnight shift, testified at trial that he saw a white pickup truck traveling south on Carothers. The truck, driven by the appellant, proceeded at a high rate of speed through a flashing red light at the intersection. Sergeant Clouse immediately began following the truck. At the top of a hill, Sergeant Clouse saw Officer Ben Jones "running stationary radar on Carothers." Officer Jones radioed Sergeant Clouse to inform him that the appellant was driving fifty-five miles per hour in a forty-mile-per-hour zone. Sergeant Clouse responded that he intended to stop the appellant for running the red light. Officer Jones followed Sergeant Clouse to assist with the stop.
Sergeant Clouse said that they proceeded south on Carothers toward Liberty Pike. As they approached the intersection, Sergeant Clouse activated his car's blue lights. Upon reaching the intersection, the appellant made a right turn onto Liberty Pike. After making the turn, Sergeant Clouse activated his car's siren. Approximately forty-five seconds after Sergeant Clouse activated the blue lights, the appellant stopped his vehicle at a curb.
Sergeant Clouse stated that he and Officer Jones parked behind the appellant. Sergeant Clouse got out of his vehicle and approached the driver's side of the truck, and Officer Jones approached the passenger side. When Sergeant Clouse made contact with the appellant, he immediately smelled alcohol and saw a bottle of Bud Light beer in the console next to the appellant. The appellant's eyes were watery and bloodshot. Sergeant Clouse asked the appellant if he had been drinking. The appellant responded that he had consumed two beers. Sergeant Clouse informed the appellant that he had been stopped for speeding and running a red light and asked the appellant to step out of the vehicle so that Sergeant Clouse could ascertain whether the appellant was fit to drive. When the appellant complied, Sergeant Clouse confirmed that the smell of alcohol was coming from the appellant. He also noticed that the appellant had "a fresh dip of snuff" in his lip.
Sergeant Clouse said that he asked the appellant to perform field sobriety tests, and the appellant agreed. The first test, the "walk and turn, " had been standardized by the National Highway Transportation Safety Administration (NHTSA) and the Tennessee Governor's Board of Highway Safety. Sergeant Clouse explained:
Usually we try to use either the fog line or either a line on the street. They are basically straight and they are easy to identify and they are thick. They are not something really skinny.
Usually what I do is I have the person stand on the line. Usually with his right foot in front of his left or his left foot in front of his right touching heel to toe with their arms down . . . . They stand heel to toe on the line with their arms down to their side. They are required to remain in that position until I get finished explaining the tasks and demonstrating that for them.
Sergeant Clouse said that while he was instructing the appellant on how to perform the test, the appellant lost his balance. The appellant "played it off a little bit" by stepping off the line and walking around in a small circle. Sergeant Clouse stepped off the witness stand and demonstrated how the appellant lost his balance and walked in a circle.
Sergeant Clouse said that thereafter, the appellant refused to perform any field sobriety tests. Sergeant Clouse asked the appellant if he wanted to perform a different task, and the appellant repeated that he did not want to perform any field sobriety tests. Sergeant Clouse informed the appellant that if he did not take the tests, he would be arrested. After being handcuffed, the appellant agreed to take the tests.
Sergeant Clouse said that he uncuffed the appellant and demonstrated the test. The appellant did not ask any questions and could not "maintain the start position. He was swaying." During the test, the appellant began "flaring, " which Sergeant Clouse said was raising his arms slightly to the side instead of keeping his hands straight down at his sides. Sergeant Clouse demonstrated "flaring" for the jury. Sergeant Clouse said that the appellant also stepped off the line and "cant[ed]" his feet. Sergeant Clouse explained that the appellant's heels were on the line but that his feet were not. Sergeant Clouse demonstrated "canting, " which he described as walking as if "you've got Bozo feet."
Sergeant Clouse said that the appellant exhibited five of the eight clues of impairment established by the NHTSA: (1) he could not maintain the proper start position, (2) he used his arms for balance, (3) he stepped off the line, (4) he did not always step heel to toe, and (5) he did not perform the turn as Sergeant Clouse had demonstrated. He asserted, "[I]f you've got two clues out of the eight, that normally says that a person could possibly be impaired and that that person [is] considered to be over the per se legal limit of .08."
Sergeant Clouse said that the second test was the "one leg stand, " which was also an NHTSA standardized test. First, Sergeant Clouse ascertained that the appellant had no health problems that would prevent him from performing the test. Next, Sergeant Clouse explained and demonstrated that the appellant was to stand on one leg while raising the other leg six inches, pointing the toes of the raised foot, keeping his hands at his sides, and counting as instructed.
Sergeant Clouse said that the appellant attempted to perform the test. He exhibited all four clues of impairment by swaying, losing his balance, "flaring" his arms, and setting his foot down. Sergeant Clouse said that four clues of impairment were associated with the test and that exhibiting two clues indicated "that the person could be impaired."
Sergeant Clouse said that the third test was the "Romberg Task, " which required the appellant to stand with both feet together,  arms down at his sides, head tilted back, and eyes closed. The appellant was supposed to open his eyes when thirty seconds had elapsed. Sergeant Clouse explained:
Usually if a person is slower than 30 seconds it usually shows that you're under the influence of a depressant such as alcohol. If you're faster, say 15 seconds, when you're supposed to be estimating 30, that usually indicates that you're under the influence of a stimul[ant] such as . . . meth[amphetamine] or crack cocaine.
Sergeant Clouse said that when the appellant opened his eyes, thirty-six seconds, not thirty, had elapsed. Additionally, the appellant had "pronounced swaying" during the test and "had to be instructed twice to put his feet together." The prosecutor asked Sergeant Clouse, "How was 36 seconds is that good, is that bad?" Sergeant Clouse responded, "It's not 30 seconds."
Sergeant Clouse said that near the end of the traffic stop, the appellant asserted that he had consumed only two beers and that he was not "drunk." Sergeant Clouse told the appellant that he could arrange for the appellant to take a personal or portable breath test (PBT). The appellant refused to take the PBT.
Sergeant Clouse stated that at least five times, the appellant asserted that he had consumed only two beers. Sergeant Clouse asserted, "[I]t's been my experience that pretty much after two beers that's the last thing that a person remembered consciously drinking. If they're not a raging alcoholic."
After the appellant refused the breath test, Sergeant Clouse arrested him for driving under the influence. He based his arrest upon "the totality of the circumstances, the smell of alcohol, the beer in the console, he admitted to drinking, his driving behavio[r], and the fact that he didn't do very well on the FSTs." After the arrest, Sergeant Clouse searched the appellant's vehicle. He touched the bottle of Bud Light that was in the console and determined that it was cold and had condensation on it. A twelve-pack of cold Bud Light was located behind the passenger seat and had only seven cans remaining. Sergeant Clouse asked the appellant about the pack, and the appellant said, "'Oh, okay, yeah, okay, whatever, all right. I had three beers instead of two, okay, I lied.'"
Sergeant Clouse stated that he did not have video recording equipment in his patrol car. However, Officer Jones was driving a newer patrol car that was equipped with a video camera that recorded the appellant's performance on the ...