Court of Criminal Appeals of Tennessee, Knoxville
Session January 20, 2016
from the Criminal Court for Washington County No. 37151
Robert E. Cupp, Judge
Appellant, William Wayne Eskridge, was convicted in the
Washington County Criminal Court of driving under the
influence with a blood alcohol content of .08 percent or
greater (DUI per se), and the trial court imposed a sentence
of eleven months and twenty-nine days in jail. On appeal, the
Appellant contends that the evidence is insufficient to
support his conviction and that the trial court violated his
due process rights by summarily denying his motion to
suppress without an evidentiary hearing because he was not
present for the hearing. Upon review, we conclude that the
evidence is sufficient but that the trial court committed
reversible error by summarily denying the motion to suppress.
Therefore, the Appellant's conviction is reversed, and
the case is remanded for further proceedings consistent with
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Cameron L. Hyder (on appeal), Elizabethton, Tennessee, and
Clifton L. Corker (at trial), Johnson City, Tennessee for the
appellant, William Wayne Eskridge.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Senior Counsel; Anthony Wade Clark,
District Attorney General; and Robin Ray, Assistant District
Attorney General, for the appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.
MCGEE OGLE, JUDGE
2011, the Washington County Grand Jury indicted the Appellant
for DUI and DUI per se. The Appellant filed a pretrial motion
to suppress, which the trial court summarily denied when the
Appellant failed to show up for the suppression hearing.
During the Appellant's first trial, the trial court
declared a mistrial. The Appellant was retried in July 2014.
trial, Trooper Johnathan Street of the Tennessee Highway
Patrol testified that on February 23, 2011, he was on patrol
on "U.S. 11E" when he saw a white Hummer change
lanes by making a "large . . . swerve" and without
signaling. Trooper Street began following the Hummer "to
make sure the vehicle wasn't going off the roadway"
and saw the vehicle drive across the fog line for a short
Street activated his patrol car's blue lights near the
red light at Allison Road. The Hummer, which was in the right
lane, stopped on the shoulder of the road. Trooper Street
exited his patrol car, approached the driver's side of
the Hummer, and spoke to the driver, who was the Appellant. A
passenger was also in the car. Trooper Street said that
during traffic stops, he usually identified himself and told
the driver the reason for the stop; however, due to the time
that had elapsed since the Appellant's stop, he could not
recall what he specifically said to the Appellant.
Street recalled that he asked the Appellant "for
documents" such as his driver's license and
insurance and that the Appellant retrieved the proper
documents. As they spoke, Trooper Street smelled alcohol. He
asked the Appellant about the odor, and the Appellant said
that he had been at Bailey's Sports Bar, drinking and
playing cards or pool with friends. Trooper Street noticed a
twelve-ounce can of Budweiser beer in the vehicle. The
Appellant stated that the can "was not from that day,
" which the trooper could not prove or disprove. The
Appellant told the trooper that he was a paramedic.
Street asked the Appellant to exit the vehicle to perform
field sobriety tests. When the Appellant stepped out of the
vehicle, Trooper Street again smelled alcohol on the
Appellant's breath. Trooper Street instructed the
Appellant on how to perform the "walk and turn"
test and demonstrated the correct way to perform the test.
Trooper Street explained that the test had eight
"clues" of impairment and that a minimum of two
clues suggested impairment. The Appellant displayed three
clues, namely "com[ing] out of the instruction stage,
" stepping off the line, and taking ten steps instead of
nine "while going down."
Trooper Street gave the Appellant instructions and a
demonstration of how to perform the "one-leg
stand." Trooper Street said that two clues suggested
impairment and that the Appellant demonstrated three clues,
namely swaying, hopping, and putting his foot down early.
Trooper Street determined that the Appellant was too impaired
to drive based upon the odor of alcohol, the Appellant's
driving, his physical appearance, and his performance on the
field sobriety tests.
Appellant agreed to give a blood sample, and Trooper Street
transported him to Johnson City Medical Center. A registered
nurse took a sample of the Appellant's blood, and Trooper
Street transported the Appellant to the Washington County
Detention Center. Trooper Street checked the blood sample
into the evidence department.
cross-examination, Trooper Street testified that he
remembered the "highlights of the stop" but that he
had to use his notes to refresh his memory on certain details
because three and one-half years had elapsed since the stop.
He said that his patrol car was equipped with video recording
equipment at the time of the stop but that he learned after
the stop that it had not been recorded because of
"issues with [the] camera." Trooper Street said
that before a traffic stop, he usually performed a "mike
test" to ensure the recording equipment was working;
however, he could not recall whether he had tested the
equipment prior to the Appellant's stop. Trooper Street
said that Sergeant Applebus was also present during the stop
and that his vehicle was parked behind Trooper Street's
patrol car. Trooper Street did not know if the recording
equipment in Sergeant Applebus's vehicle recorded the
Appellant's performance on the field sobriety tests. He
acknowledged that he could not determine from smelling a
person's breath the amount or type of alcohol the person
had consumed but that he could tell if the alcohol use was
Street testified that as he was standing beside the
driver's door of the Hummer, his conversation with the
Appellant was "cordial" and that the Appellant had
no problem answering his questions or supplying the requested
documents. The Appellant did not have any difficulty walking
to the back of his car to perform the field sobriety tests,
and his speech was not slurred. Trooper Street recalled that
the stop occurred in wintertime and that the Appellant was
wearing jeans and cowboy boots. Trooper Street's notes
did not indicate whether the Appellant was wearing a jacket
or a coat. The trooper could not recall the kind of shirt the
Appellant was wearing but acknowledged that being cold could
affect a person's performance on a field sobriety test.
Massengill with the Tennessee Bureau of Investigation's
(TBI) Crime Laboratory testified as an expert in forensic
toxicology that a representative of the Tennessee Highway
Patrol left the "blood kit" containing the sample
of the Appellant's blood in a secure "drop box"
at the front of the laboratory. At the end of the day, one of
the laboratory's forensic evidence technicians collected
the blood kit and put the kit inside a refrigerator in a
secure vault in the laboratory. Massengill later retrieved
the blood kit from the refrigerator and tested the blood. The
blood alcohol content was .10 percent.
cross-examination, Massengill testified that the drop box was
not refrigerated but that samples were "only in the drop
box throughout the course of business hours." She
acknowledged that biological specimens were best stored in a
refrigerated environment. On redirect examination, Massengill
testified that the quality of blood specimens was not
affected detrimentally by the time spent in the drop box.
defense called Dr. Glen Edward Farr, an expert in pharmacy.
He explained that the human body treated alcohol as a foreign
substance of which the body needed to rid itself. In order to
do so, the body first absorbed the alcohol, then liver
enzymes broke down the alcohol. Dr. Farr explained that
"the final kinetic phase is excretion, " most of
which was "handled through the kidney through the
Farr testified that beer, which was less concentrated and
contained more carbohydrates, would be absorbed by the body
more slowly than whiskey. He explained that the alcohol
absorption rate was affected by the amount of food a person
consumed and by the person's metabolic rate. Dr. Farr
opined that the Appellant's blood alcohol content at the
time he was driving was not .10 percent but was either more
or less. He noted that the Appellant's blood was
collected fifty-three minutes after the traffic stop and that
he did not know whether the Appellant's metabolization of
the alcohol was increasing or decreasing at the time of the
stop, which depended partially on when the alcohol was
consumed. He estimated that the Appellant's blood alcohol
content at the time of the stop was between .06 percent and
cross-examination, Dr. Farr testified that .06 percent and
.13 percent "would be the predicted range [of possible
blood alcohol content] based on the different metabolic
rates, not knowing" how much alcohol the Appellant drank
and when he drank, when and how much he ate, and his personal
conclusion of the proof, the jury found the Appellant guilty
of DUI per se but acquitted him of DUI. The trial court
sentenced the Appellant to eleven months and twenty-nine
days, with forty-eight hours[ ...