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State v. Eskridge

Court of Criminal Appeals of Tennessee, Knoxville

January 17, 2017


          Session January 20, 2016

         Appeal from the Criminal Court for Washington County No. 37151 Robert E. Cupp, Judge

         The 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 this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;

         Case Remanded

          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.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.



         I. Factual Background

         In July 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.[1] The Appellant was retried in July 2014.

         At 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 distance.

         Trooper 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.

         Trooper 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.

         Trooper 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."

         Next, 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.

         The 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.

         On 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 recent.

         Trooper 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.

         Margaret 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.

         On 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.

         The 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 urine."

         Dr. 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 .13 percent.

         On 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 metabolic rate.

         At the 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[ ...

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