Court of Criminal Appeals of Tennessee, Nashville
Session Date: January 17, 2018
from the Circuit Court for Rutherford County No. F-76199
David M. Bragg, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
J. Foy, Murfreesboro, Tennessee, for the appellant, Benjamin
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
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Timothy L. Easter, J.,
L. HOLLOWAY, JR., JUDGE
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.
to Suppress Hearing
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[.]"
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
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
[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
[Trooper White:] No, sir.
[Trial Counsel:] What date was the alleged crime? What date