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State v. Stein

Court of Criminal Appeals of Tennessee, Nashville

October 16, 2017


          Session: April 19, 2017

         Appeal from the Criminal Court for Davidson County No. 2012-B-1528 Amanda Jane McClendon, Judge

         A 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded for Entry of Corrected Judgment

          Rob 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, JJ., joined.



         On June 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.

         Officer 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 scene.

         Sergeant 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.

         After 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.

         The 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.

         At the 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 ...

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