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State v. Alsup

Court of Criminal Appeals of Tennessee, Nashville

June 25, 2018

STATE OF TENNESSEE
v.
ALISHA LYNN ALSUP

          Session March 20, 2018 Heard at Belmont University College of Law [1]

          Appeal from the Circuit Court for Lawrence County Nos. 33214 and 33873 J. Russell Parkes, Judge

         In this appeal, the State challenges the trial court's dismissal of a DUI by impairment charge as an impermissible "broadening and/or substantial amendment" to the original charge of DUI per se. The Defendant, Alisha Lynn Alsup, was initially indicted by the Lawrence County Grand Jury for driving while the alcohol concentration in her blood or breath was 0.08% or more (DUI per se), T.C.A. § 55-10-401(2); driving without her eyeglasses, id. § 55-50-331; and driving with inoperable headlights, id. § 55-9-402. Alsup[2] filed a motion to suppress the results of the field sobriety tests, the blood sample, and the blood test results, and, shortly thereafter, the grand jury issued a superseding indictment, charging her with driving under the influence (DUI by impairment), id. § 55-10-401(1), in addition to the previously charged offenses. Thereafter, Alsup filed a brief in the trial court asking that the superseding indictment be dismissed. Following an evidentiary hearing, the trial court granted the motion to suppress the blood alcohol results and stated that "in light of the . . . suppression of the blood sample in this case, the Court finds it unnecessary to address the dismissal of the superseding indictment in that Count II of said indictment is premised on [Alsup's] blood alcohol content being 0.08[%] or more." The trial court then held that the State would only be allowed to proceed on the original indictment, which the court mistakenly believed charged Alsup with DUI by impairment. Thereafter, the trial court entered a second order, the subject of the State's appeal, correcting some errors in the previous order, reiterating its suppression of the blood test results, dismissing the DUI per se counts in the original and superseding indictments based on the suppression of the blood test results, and dismissing the DUI by impairment charge in the superseding indictment as time-barred after determining that this charge was "a broadening and/or substantial amendment" to the DUI per se charge in the original indictment. In response, Alsup argues that the trial court exceeded its jurisdiction by entering the second order amending its first order pursuant to Tennessee Rule of Criminal Procedure 36, that the State failed to timely appeal from the first order entered, and that the trial court properly determined that the DUI by impairment charge was barred by the statute of limitations. Although this was a very close case, we conclude that the DUI by impairment charge in the superseding indictment broadened and substantially amended the charge of DUI per se in the original indictment. Accordingly, we affirm the judgment of the trial court.

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

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Brent A. Cooper, District Attorney General; and Adam C. Davis, Assistant District Attorney General, for the appellant, State of Tennessee.

          Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellee, Alisha Lynn Alsup.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.

          OPINION

          CAMILLE R. MCMULLEN, JUDGE

         On August 29, 2014, Alsup was arrested for DUI after an officer stopped her for an inoperable headlight. The arresting officer acknowledged that Alsup had not been driving inappropriately prior to the stop. Thereafter, a criminal warrant issued from the Lawrence County General Sessions Court alleging that Alsup was guilty of driving under the influence of an intoxicant as well as other traffic-related offenses. This warrant did not reference either Tennessee Code Annotated subsection 55-10-401(1) or 55-10-401(2) for the DUI charge.

         On May 8, 2015, the general sessions court dismissed Alsup's case.

         On May 21, 2015, the Lawrence County Grand Jury indicted Alsup in docket number 33214 for the following offenses committed on or about August 29, 2014:

Count One: driving while the alcohol concentration in her blood or breath was 0.08% or more (DUI per se), in violation of Code section 55-10-401(2);
Count Two: driving without her eyeglasses, in violation of Code section 55-50-331; and
Count Three: driving with inoperable headlights, in violation of Code section 55-9-402.

         On April 11, 2016, Alsup filed a motion to suppress all evidence following her initial traffic stop, including evidence related to the officer's DUI investigation, the results of the field sobriety tests, the blood sample itself, and the results from the blood alcohol test.

         On May 19, 2016, the Lawrence County Grand Jury returned a superseding indictment against Alsup in docket number 33873 charging her with the following four offenses committed on or about August 29, 2014:

Count One: driving under the influence of an intoxicant (DUI by impairment), in violation of Code section § 55-10-401(1);
Count Two: driving while the alcohol concentration in her blood or breath was 0.08% or more (DUI per se), in violation of Code section 55-10-401(2);
Count Three: driving without her eyeglasses, in violation of Code section 55-50-331; and
Count Four: driving with inoperable headlights, in violation of Code section 55-9-402.

         At the June 2, 2016 suppression hearing, the trial court acknowledged that the grand jury had returned a superseding indictment charging Alsup with both DUI by impairment and DUI per se. At the beginning of the hearing, the court announced that the parties had agreed there would be no waiver of any of the defenses related to the superseding indictment, including whether the charges were barred by the applicable statute of limitations. The court also noted an agreement between the parties that any motions, including the motion to suppress, filed in case number 33214 were equally applicable to the superseding indictment in case number 33873. After hearing testimony from the arresting officer, the trial court made the following findings: (1) probable cause existed for the initial stop because Alsup's passenger-side headlight was inoperable in violation of Code section 55-9-402; (2) reasonable suspicion existed to continue the investigation following the initial stop; (3) reasonable suspicion existed for the officer to request field sobriety tests; and (4) probable cause existed for the arrest. The trial court stated that it was going to reserve ruling on issues regarding the chain of custody and whether the blood sample was properly preserved in order to give the State the opportunity to present the Tennessee Bureau of Investigation technician who received the kit containing the blood sample.

         On July 13, 2016, the State presented the testimony from the TBI technician who received the blood kit.[3]

         On November 3, 2016, Alsup filed a brief, arguing that the officer did not have probable cause to arrest her and that the blood sample and the results of the blood alcohol test should be suppressed because of chain of custody problems and the use of an outdated implied consent form. In the brief, Alsup asked the trial court to dismiss the superseding indictment, which was filed outside the one-year statute of limitations, because it "effectively broadened the charges by adding count II charging DUI per se which ha[d] elements that [were] not found in the original charge in the 2015 indictment."

         On December 1, 2016, the trial court entered an order granting the motion to suppress the blood alcohol test results, finding sua sponte pursuant to the United States Supreme Court's holding in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), that Alsup's submission to a blood alcohol test was not voluntary because the outdated implied consent form advised her that if she refused to submit to a blood test, she would "be charged with the offense of violation of the implied consent law." The court found that Birchfield "render[ed] moot any issue regarding the chain of custody and/or the preservation and/or improper handling of a blood sample in this matter." The court then reiterated its oral ruling that the officer had probable cause to stop Alsup and that "the officer was justified in requesting that . . . field sobriety tests be performed." As to Alsup's request to dismiss the superseding indictment, the court held that "in light of the Court's suppression of the blood sample in this case, the Court finds it unnecessary to address the dismissal of the superseding indictment in that Count II of said indictment is premised on [Alsup's] blood alcohol content being 0.08[%] or more." The court then held that the State would "only be allowed to proceed to trial on the original indictment wherein the offense of driving under the influence (not per se) is alleged." In the conclusion portion of the order, the trial court stated that "[Alsup's] Motion to Suppress the blood alcohol test is granted" and "[Alsup's] Motion to Suppress all field sobriety tests is denied." Despite its previous finding in the body of the order that it was unnecessary to address the dismissal of the superseding indictment, the trial court stated in its conclusion that "[t]he superseding indictment in this matter is dismissed."

         On July 24, 2017, the trial court entered an order correcting some errors in its previous order, reiterating its suppression of the blood test results, dismissing the DUI per se charges in the initial and superseding indictments based on the suppression of the blood test results, and dismissing the DUI by impairment charge in the superseding indictment as time-barred after finding that this charge broadened and/or substantially amended the charge of DUI per se in the original indictment.

         In the July 24, 2017 order, the court explained that at the June 2, 2016 hearing, "counsel and the court proceeded under the misapprehension that the original indictment alleged a violation of Tenn. Code Ann. § 55-10-401(1) [DUI by impairment] and that the superseding indictment added a new count to allege Driving Under the Influence Per Se in violation of Tenn. Code Ann. § 55-10-401(2)."

         It then reiterated that its December 1, 2016 order denied Alsup's motion to suppress the stop and field sobriety tests but granted her motion to suppress blood alcohol test results pursuant to Birchfield. The court stated that the intended purpose of its December 1, 2016 order was to "dismiss any and all counts alleging Driving Under the Influence Per Se" but to allow the State to proceed to trial on the DUI by impairment charge in the original indictment. The trial court explained that at the time of entry of the December 1, 2016 order,

the Court and all counsel were under the erroneous assumption that the original indictment alleged Driving Under the Influence by impairment, which it did not. In preparation for trial, counsel discovered that Count 1 of the original indictment alleged Driving Under the Influence Per Se and not Driving Under the Influence [by impairment] and immediately brought same to the Court's attention.

         It then asserted that it was entering the July 24, 2017 order to correct a clerical error in the December 1, 2016 order pursuant to Tennessee Rule of Criminal Procedure 36:

The Court finds it necessary to clarify its previous Order entered December 1, 2016. It was clearly the intent of the Court to enter an Order suppressing blood test results in this manner thus dismissing any and all counts alleging Driving Under the Influence Per Se. The Court enters this Order of correction pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure to correct a clerical error wherein the superseding indictment was dismissed in its entirety. The Court thus enters this Order dismissing both Count 1 of Case No. 33214 and Count 2 of Case No. 33873, both alleging that the Defendant was guilty of Driving Under the Influence Per Se.

         The court next considered the statute of limitation issue for the DUI by impairment charge in the superseding indictment. The court noted that after the initial warrant, which alleged driving under the influence without reference to the impairment or per se subsections of Code section 55-10-401, was dismissed by the general sessions court, the State took the following action:

Rather than securing an indictment for Driving Under the Influence by impairment . . . and alternatively DUI per se . . . [, ] the State only sought and/or received an indictment alleging Driving Under the Influence Per Se. More than one (1) year after the return of the initial indictment, some twenty-one (21) months after the Defendant was arrested, the State sought and received a superseding indictment alleging Driving Under the Influence by impairment."

         After analyzing the applicable law on this issue, the court ultimately found that the State was barred from proceeding on the DUI by impairment charge in the superseding indictment because this charge broadened and/or ...


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