Court of Criminal Appeals of Tennessee, Nashville
Session Date: July 16, 2014
Appeal from the Circuit Court for Williamson County No. IICR077410 James G. Martin, III, Judge.
Patrick Newsom, Nashville, Tennessee, for the appellant, Linzey Danielle Smith.
Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn, J., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Our review of the appellate record shows that Defendant properly reserved a certified question of law for appeal following her negotiated plea agreement to plead guilty to driving with a breath or blood alcohol concentration of 0.08% or more, commonly referred to as DUI per se. See Tenn. R. Crim. P. 37(b)(2)(A); State v. Day, 263 S.W.3d 891, 898-99 (Tenn. 2010) (citing State v. Preston, 759 S.W.2d 647 (Tenn. 1988) and State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996)).
The certified question of law states:
Whether the stop of Defendant's vehicle by Trooper Charles C. Achinger of [the] Tennessee Highway Patrol on December 6, 2012, violated Defendant's rights granted pursuant to the Fourth Amendment to the U.S. Constitution and Article I, Section 7 of the Tennessee Constitution and whether any evidence, statements and blood tests obtained as a result of said stop should be suppressed as the fruits of an unconstitutional seizure, due to the fact that there was no probable cause that a traffic violation [had] been committed under [T.C.A.] § 55-8-123(1), and there was no reasonable suspicion based on the totality of the circumstances, where Defendant was observed driving on a winding road and sloping portion of a roadway for a distance of approximately 2.5 miles.
T.C.A. § 55-8-123(1) provides as follows:
55-8-123. Driving on roadways laned for traffic.
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules, in addition to all others consistent with this section, shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety;
(italicized emphasis added)
The General Assembly has criminalized a violation of T.C.A. § 55-8-123(1) as a Class C misdemeanor. T.C.A. § 55-8-103. In this case, the Class C misdemeanor is punishable by imprisonment of not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both. T.C.A. § 40-35-111(e)(3). We note at the outset that this case does not address the issue of whether Defendant's driving which was observed by the trooper provided probable cause or reasonable suspicion that Defendant was driving under the influence of intoxicants in violation of T.C.A. § 55-10-401, even though that is the offense to which Defendant pled guilty as a result of the stop.
After she was indicted on two alternative theory counts of DUI, Defendant filed a "Motion to Suppress and/or Dismiss Due to Illegal Stop." Defendant alleged that the facts showed she had been observed crossing the fog line once for a short distance while driving northbound on Interstate 65 in Williamson County. Defendant asserted that the trooper did not have reasonable suspicion or probable cause that Defendant was committing a criminal offense to justify a warrantless seizure by the trooper. The State filed a trial court brief in opposition to Defendant's suppression motion. In it, the State distinguished the appellate decisions relied upon by Defendant, cited several cases it asserted supported the constitutionality of the stop, and in fact argued that the facts supported a finding that the trooper had reasonable suspicion based upon specific and articulable facts that Defendant was committing the criminal offense of DUI. As noted below, this last assertion has been abandoned by the State. The State also accurately set forth in its trial court brief the precise legal quandary that must be resolved in this case:
[T]he issue of driving behavior consistent with the crossing over the fog and/or center lines and its basis for conducting an investigatory stop, in and of itself, is one of much contention. On one hand, Tennessee Code Annotated § 55-8-123 requires motorists to drive within their lanes of travel "as nearly as practicable" at all times. On the other hand, a driver who drifts over line markings in the roadway may indicate the possibility of an impaired mental status. Thus, an investigatory stop in line-crossing cases can either be based upon probable cause of a traffic violation, namely Tenn. Code Ann. § 55-8-123, or reasonable suspicion of the criminal activity of driving under the influence. The problem that the State and Defendants face comes from the outpouring of appellate decisions that seem to contradict one another in their application of Fourth Amendment jurisprudence.
Trooper Charles Achinger was the only witness who testified at the suppression hearing. An audio-visual DVD of Defendant's vehicle made while Trooper Achinger was following it was shown to the trial court and made an exhibit. Upon direct examination by the State, Trooper Achinger testified that he had been employed by the Tennessee Highway Patrol for almost ten years. He had been involved in over three-hundred DUI investigations and received additional training in DUI detection and enforcement.
Trooper Achinger testified that he was working the midnight shift when he came in contact with Defendant on December 6, 2012. He was driving northbound on Interstate 65 a short time before 3:00 a.m., and Defendant's vehicle was also traveling northbound less than one-fourth mile in front of Trooper Achinger. Both vehicles were traveling in the far right lane of traffic. Trooper Achinger observed Defendant's vehicle drift to the right toward the shoulder of the road as it entered a "big swooping curve" to the left. Defendant's vehicle "crossed the fog line by less than six inches, probably." Defendant corrected the path of her vehicle and returned it entirely within its lane of travel, but drifted back to the right two more times. The first of these two additional "drifts" resulted in Defendant's vehicle going "almost . . . all the way over the fog line again." On the second additional "drift, " Defendant's vehicle "went back over and just barely touched the fog line again." Trooper Achinger testified that the distance traveled by Defendant during the time period just ...