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State v. Allen

Court of Criminal Appeals of Tennessee, Jackson

March 20, 2018

STATE OF TENNESSEE
v.
JOEL W. ALLEN

          Assigned on Briefs December 5, 2017

          Appeal from the Circuit Court for Benton County No. 15-CR-45 C. Creed McGinley, Judge

         The Defendant, Joel W. Allen, was convicted by a Benton County Circuit Court jury of driving under the influence, "DUI, " fifth offense, a Class E felony; simple possession of marijuana, a Class A misdemeanor; and operating a vehicle after being declared a habitual motor vehicle offender, a Class E felony. He was sentenced to an effective term of twelve years in the Tennessee Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his DUI conviction and that he received ineffective assistance of counsel. After review, we affirm the judgments of the trial court.

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

          Anthony L. Clark, Paris, Tennessee (on appeal); and Alan G. Ward, Camden, Tennessee (at trial), for the appellant, Joel W. Allen.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Matthew F. Stowe, District Attorney General; and Vance Dennis, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The Defendant was indicted for fifth offense DUI, simple possession of marijuana, and operating a vehicle after being declared a habitual motor vehicle offender. At his trial, Deputy Shaun Gary with the Benton County Sheriff's Office testified that he was on patrol on February 1, 2015, when he observed a red Suburban. He had been informed that the Defendant, who was not authorized to operate a motor vehicle having been declared a habitual motor vehicle offender, had been seen driving regularly and was likely to be driving a red Suburban. Deputy Gary ran the license plate number and confirmed that the vehicle belonged to the Defendant. He then followed the vehicle for approximately a mile and a half, observing it drive "erratic and all over the road."

         Deputy Gary activated his blue lights and followed the Defendant for a quarter mile before the Defendant pulled over. Deputy Gary confirmed that the Defendant was the driver and noted that he "could smell a strong odor of an alcoholic type beverage coming from the vehicle." He also smelled the odor of alcohol "[o]n or about [the Defendant's] person." Deputy Gary asked the Defendant if he had been drinking, to which the Defendant responded that he had had "just a couple and that the only reason that he was driving was because his wife had had more to drink than he had." Deputy Gary observed that the Defendant's wife appeared to be intoxicated.

         Deputy Gary asked the Defendant to exit the vehicle and administered field sobriety tests. The Defendant was "polite and compliant, " but he "performed unsatisfactorily" on all of the tests. The Defendant was "wobbly" during the instruction phase of the "nine step walk and turn" test and, during the test, "missed his heel to toe, and he step[ped] off line . . . [o]n step[s] two, six, and eight." Deputy Gary noted that the Defendant had "the inability to follow the simple instructions." The Defendant only performed the "one leg stand" test for two seconds before stating that he could not perform the test because he had unspecified "problems with his legs." The Defendant also "got off count, forgot where he was in his counts" when performing the "finger count" test.

         Deputy Gary placed the Defendant under arrest for driving under the influence and being a habitual motor vehicle offender. During the ensuing pat-down before placing the Defendant in the patrol car, Deputy Gary found "a joint and a half [of] marijuana" in a cigarette pack in the Defendant's shirt pocket. The Defendant admitted that the "joints" were marijuana. "[S]everal burnt roaches" were found in the ashtray of the Defendant's vehicle. Deputy Gary informed the Defendant of the implied consent law and mandatory blood draw, but the Defendant did not consent to giving a sample.

         Deputy Gary testified that the entire encounter took more than an hour. During that time, the Defendant never told him that his wife was having a medical emergency, nor did the Defendant's wife request medical assistance. Deputy Gary thought that the Defendant's wife appeared to be intoxicated and required ...


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