Assigned on Briefs December 5, 2017
from the Circuit Court for Benton County No. 15-CR-45 C.
Creed McGinley, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Anthony L. Clark, Paris, Tennessee (on appeal); and Alan G.
Ward, Camden, Tennessee (at trial), for the appellant, Joel
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
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and J. Ross Dyer, JJ., joined.
E. GLENN, JUDGE
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."
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.
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"
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.
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 ...