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State v. Toban

Court of Criminal Appeals of Tennessee, Nashville

October 3, 2017

STATE OF TENNESSEE
v.
GABRIEL TOBAN

          Session May 9, 2017

         Appeal from the Circuit Court for Maury County No. 23944 Robert Jones, Judge

         The Defendant, Gabriel Toban, was convicted by a Maury County Circuit Court jury of third offense driving under the influence (DUI), a Class A misdemeanor. See T.C.A. § 55-10-401 (2012). The trial court sentenced the Defendant to eleven months, twenty-nine days in confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his DUI conviction, (2) the trial court erred by rejecting a negotiated plea agreement, (3) the indictment was invalid, and (4) the trial court erred by denying a motion to dismiss. We affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Rob McKinney and Brittney Hollis, Nashville, Tennessee, for the appellant, Gabriel Toban.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Brent A. Cooper, District Attorney General; and Adam Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ. joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case arises from a March 1, 2014 incident in which the Defendant's car was found stopped on the interstate with the Defendant "unconscious" inside. In 2015, the initial trial ended in a mistrial. In 2016, the subsequent trial began, and the Defendant was convicted of third offense DUI. At the subsequent trial, Sean Sweeny testified that he was a former law enforcement officer and that he worked as a production supervisor at the time of the incident. He said that on March 1, he left work late after his second shift, that he traveled home on Interstate 65, and that he saw a vehicle move across the lanes of travel. Mr. Sweeny said that the vehicle was moving slowly and that it stopped in the middle of the interstate. He knew something was wrong and said that he stopped to check on the driver, who was "slumped over" and was later identified as the Defendant. Mr. Sweeny was speaking to his fiancée on his cell phone and requested she stay on the line while he approached the Defendant's car. Mr. Sweeny said that he tapped on the passenger-side window, that the car "jerked forward, " and that he asked the Defendant to roll down the window. Mr. Sweeny said the Defendant stated that he was fine and that he was driving home to Nashville from Columbia. Mr. Sweeny said that the Defendant was able to drive the car mostly out of the lane of travel and that the Defendant then gave the keys to Mr. Sweeny, who drove the car further away from the lane of travel. Mr. Sweeny said that the Defendant smelled of alcohol and that Mr. Sweeny waited for the police.

         Mr. Sweeny testified that the Defendant said he did not know why he was stopped in the middle of the interstate and had been "out" with a friend. Mr. Sweeny said that he explained what had occurred to the Tennessee Highway Patrol (THP) officer who arrived and that the officer allowed Mr. Sweeny to go home.

         THP Sergeant Jeff Reed testified that he arrived at the scene at 1:30 a.m. after dispatch received several reports of a vehicle parked with a "slumped over" driver in a lane of travel on Interstate 65. Sergeant Reed said that dispatch reported a passerby stopped and removed the keys from the Defendant's car, which was parked on the right side of the interstate across the white fog line. Sergeant Reed said that the Defendant was sitting in the driver's seat of the Defendant's car and that Mr. Sweeny gave the Defendant's car keys to Sergeant Reed. Sergeant Reed said that he gave Mr. Sweeny permission to leave the scene, that he moved the Defendant's car off the shoulder of the interstate, and that he waited for Officer McDonald to arrive.

         Sergeant Reed testified that the Defendant and the Defendant's car smelled of alcohol and that the Defendant "had all of the signs of impairment." Sergeant Reed said the Defendant moved to the passenger seat when the sergeant moved the Defendant's car and did not leave the car until Officer McDonald arrived. Sergeant Reed said that although he may have assisted Officer McDonald with the field sobriety tests, Officer McDonald determined whether the Defendant was impaired.

         On cross-examination, Sergeant Reed testified that he did not witness the Defendant driving the car and that the notifications from the dispatcher did not reflect that the Defendant had been driving. He agreed that Mr. Sweeny reported seeing the Defendant "slumped behind the driver's wheel . . . [i]n the middle of the interstate, but not driving." Sergeant Reed agreed, after reviewing his preliminary hearing testimony, that he did not recall who provided him the keys to the Defendant's car. Sergeant Reed did not think the engine of the car had been on when he arrived.

          THP Officer David McDonald testified that he arrived at the scene at 1:48 a.m. and that he was informed a passerby had taken the Defendant's car keys. Officer McDonald said that when he arrived, the Defendant's car was out of the roadway and parked close to a guardrail. Officer McDonald said that the Defendant appeared confused and smelled of alcohol, that he asked the Defendant how much alcohol he drank, and that he thought the Defendant responded, "[A] little."

         Officer McDonald testified that the Defendant performed poorly on the field sobriety tests. Officer McDonald said that during the walk-and-turn test, the Defendant could not maintain his balance when the officer provided instructions for the test, missed a couple of heel-to-toe steps, and used his arms for balance throughout the test. Officer McDonald said that the Defendant was unable to maintain his balance during the one-leg stand test and that during the finger-to-nose test, the Defendant missed his nose every time. Officer McDonald said that he placed the Defendant under arrest based upon the odor of alcohol and the poor performance on the field sobriety tests.

         Officer McDonald testified that he requested the Defendant submit to a blood draw to determine his blood alcohol concentration, that he read the implied consent form to the Defendant, and that the Defendant refused to submit to the test. Officer McDonald said that at 2:13 a.m., he drove to a magistrate's office to obtain a search warrant for the blood draw, that he arrived at the magistrate's office around 2:36 a.m., and that he obtained a warrant for the Defendant's blood at 3:14 a.m. Officer McDonald said that he drove the Defendant to a hospital for the blood draw ...


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