Court of Criminal Appeals of Tennessee, Nashville
Session: April 19, 2017
from the Criminal Court for Davidson County No. 2012-B-1528
Amanda Jane McClendon, Judge
Davidson County Criminal Court jury convicted the Defendant,
Alan Terry Stein, of driving under the influence (DUI) and
driving with a blood alcohol concentration of .08 percent or
more (DUI per se), and he received a sentence of eleven
months and twenty-nine days, suspended to supervised
probation. On appeal, the Defendant contends that the trial
court erroneously instructed the jury and improperly denied
his motions for special jury instructions. Upon review, we
affirm the judgments of the trial court. However, we remand
the case for entry of a judgment form as to count one
reflecting that the Defendant's DUI conviction was merged
with count two.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed and Remanded for Entry of Corrected
McKinney and Brittney Hollis, Nashville, Tennessee, for the
Defendant-Appellant, Alan Terry Stein.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Glenn R. Funk, District Attorney
General; and Kyle Anderson, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and John Everett Williams,
CAMILLE R. McMULLEN, JUDGE
1, 2012, the Davidson County Grand Jury indicted the
Defendant for one count of DUI and one count of DUI per se.
The Defendant filed several pretrial motions, including two
motions requesting special jury instructions on breath
alcohol tests and field sobriety tasks. The record does not
contain the court's order disposing of these two motions;
however, the jury was not given the requested instructions.
The case proceeded to trial where the following evidence, as
relevant to this appeal, was adduced.
John Patton of the Metro Nashville Police Department
testified that he was on patrol on the evening of September
10, 2011, and stopped at a red light behind one or two cars
at the intersection of Forth Avenue and Broadway in downtown
Nashville. As Officer Patton's patrol car moved through
the intersection after the light turned green, "a large
dually truck began to make a left-hand turn directly in front
of [Officer Patton]" from the opposite direction.
Officer Patton testified that he had to "slam on [his]
brakes to keep from colliding with the truck" and
reverse his patrol car to allow the truck to clear the
intersection and complete its left turn. After the truck
turned, Officer Patton activated his blue lights to initiate
a traffic stop of the truck for failure to yield the right of
way and failure to maintain the lane of travel. After Officer
Patton exited the car, the Defendant told Officer Patton that
he had been drinking at a local bar with his two passengers.
Officer Patton testified that he "smelled a faint odor
of alcohol" on the Defendant's breath, that the
Defendant's eyes were "a little bloodshot, "
and that his speech was "a little slurred." Based
on this interaction, Officer Patton believed the Defendant
was impaired, and a specialized DUI unit was called to the
Kristopher Mason responded to the call and testified that the
Defendant was "very cooperative" and
"pleasant" but had an "obvious odor" of
alcohol, bloodshot and watery eyes, "very slurred
speech, " and "was very unsteady on his feet."
Sergeant Mason administered two field sobriety tasks, the
one-leg stand and the walk-and-turn, to the Defendant. The
Defendant performed poorly on both tasks and, based on his
observations, Sergeant Mason placed the Defendant under
arrest for DUI. Sergeant Mason explained and demonstrated
both field sobriety tasks for the jury.
his arrest, the Defendant consented to take a breath alcohol
test which was administered by Sergeant Mason, who was
certified by the Tennessee Bureau of Investigation to operate
the Intoximeter EC-IR II. Sergeant Mason identified a
printout from the Intoximeter machine reflecting that the
Defendant registered . 141 percent on the test.
Defendant testified that he was not impaired by alcohol at
the time of his arrest. He said that, when he proceeded
through the intersection of Fourth Avenue and Broadway,
Officer Patton's patrol car "never moved" and
that "there was no traffic going across Broadway"
when he made the left turn. On cross-examination, the
Defendant conceded that he had three whiskey drinks while he
was at the bar. However, he maintained that he completed the
left turn before Officer Patton's patrol car moved and
that there was no incident in the intersection.
conclusion of the proof, the Defendant was found guilty as
charged. The trial court merged his DUI conviction in count
one into his DUI per se conviction in count two and sentenced
the Defendant to eleven months and twenty-nine days of
supervised probation. The Defendant filed a motion for new