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 ...