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State v. Brown

Court of Criminal Appeals of Tennessee, Nashville

February 20, 2018

STATE OF TENNESSEE
v.
BENJAMIN TATE BROWN

          Session Date: January 17, 2018

         Appeal from the Circuit Court for Rutherford County No. F-76199 David M. Bragg, Judge

         The Defendant, Benjamin Tate Brown, was indicted for driving under the influence (DUI), driving while his blood alcohol concentration was .08% or more (DUI per se); and DUI, second offense. Following a bench trial, the Defendant was found guilty of DUI, second offense, and the remaining charges were dismissed. On appeal, the Defendant contends that the trial court erred in not suppressing the evidence because the officer lacked probable cause to stop his vehicle and in finding the offense was a second offense because his convictions were more than ten years apart. Following our review, we affirm the judgments of the trial court.

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

          Robert J. Foy, Murfreesboro, Tennessee, for the appellant, Benjamin Tate Brown.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Jennings H. Jones, District Attorney General; and Brent L. Pierce, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         The Defendant was arrested on January 13, 2016, by Tennessee Highway Patrol Trooper Kenneth White for DUI, second offense, and violation of the implied consent law. Trooper White obtained a search warrant to draw the Defendant's blood. After a preliminary hearing, the case was bound over to the grand jury. On September 16, 2016, the Rutherford County Grand Jury issued a three-count indictment charging the Defendant with DUI, DUI per se, and DUI, second offense.

         Motion to Suppress Hearing

         The Defendant filed a motion to suppress alleging that Trooper White did not have "reasonable suspicion or probable cause, supported by specific and articulable facts, to believe that Defendant had committed, was committing or was about to commit a crime when the stop was made[.]"

         A hearing on the motion to suppress was held on February 22, 2017. Trooper White testified that he "observed [the Defendant's] vehicle traveling west on Lasseter Drive that had failed to stop at a posted stop sign at the intersection of Lasseter Drive and Mercury Boulevard." When asked where he was "in relation to that vehicle when [the vehicle] failed to stop, " Trooper White answered, "I was actually pulled out on the roadway and was traveling west at the time as he went by me." Trooper White testified that he could clearly see that the Defendant's vehicle failed to stop as it turned right. He said the taillights were on, but the brake lights did not "activate." Trooper White testified that he "proceeded to catch up to [the Defendant's] vehicle . . ., initiated [his] blue lights, and the made contact with the driver[.]"

         On cross-examination, Trooper White stated that he reviewed the video and his police report "a couple of different times in the last couple of days." The following dialogue then took place:

[Trial Counsel:] All right. And in your viewing of the stop video, does the video show . . . [the Defendant] proceeding through the stop sign?
[Trooper White:] If you look at the video, sir, when I pulled out . . . after he went past me on the roadway onto Lasseter Drive, you never once at one time see the brake lights come on the rear of his vehicle.
[Trial Counsel:] Okay. That's not my -- my question is, though, does it show his vehicle the entire time on the video?
[Trooper White:] No, sir.
[Trial Counsel:] What date was the alleged crime? What date ...

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