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State v. Parton

Court of Criminal Appeals of Tennessee, Knoxville

July 8, 2019


          Session May 29, 2019

          Appeal from the Criminal Court for Knox County No. 109592 G. Scott Green, Judge

         A jury convicted the Defendant, Kevin Todd Parton, of driving with a blood alcohol content of 0.08 percent or more ("DUI per se") and driving under the influence of an intoxicant ("DUI"). The trial court merged the convictions and sentenced the Defendant to eleven months and twenty-nine days, with ten days to be served in confinement. The Defendant appeals, asserting that the trial court erred in denying a motion for a mistrial, that the trial court erred in admitting the results of the blood alcohol test, and that the arrest warrant was defective. After a thorough review of the record, we affirm the judgments of the trial court.

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

          Marcos Garza (at trial) and Keith Lowe (at trial and on appeal), Knoxville, Tennessee, for the appellant, Kevin Todd Parton.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Joseph Welker and Miriam Johnson, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.




         The Defendant was stopped after law enforcement observed him driving erratically in the early morning hours of October 11, 2015. After performing poorly on field sobriety tests, he was arrested and consented to a blood draw, and testing revealed a blood alcohol content of 0.183 percent.

         On October 11, 2015, a magistrate issued three arrest warrants for the Defendant, charging him with DUI, a roadway lane violation, and failure to provide evidence of compliance with the financial responsibility law. The sworn affidavit signed by Officer Nina Hummel and attached to the warrant for DUI recited the circumstances of the offense as allegedly committed by the Defendant. However, the sworn affidavits attached to the other two arrest warrants included no facts supporting the charged offenses; instead, those affidavits contained only facts regarding an unrelated domestic altercation occurring on the same night and involving a defendant whose last name was "Barton." The parties noted at trial that the State acknowledged these arrest warrants were defective and that it had dismissed the accompanying charges prior to the grand jury proceedings. The Defendant was bound over on July 18, 2016, and he was subsequently indicted on December 13, 2016, for one count of DUI per se and one count of DUI.

         The Defendant filed a "Motion to Dismiss Pursuant to T.C.A. 40-2-102," alleging that the State had failed to commence proceedings within the statute of limitations because the defects in the arrest warrants for the dismissed charges rendered the remaining arrest warrant for DUI likewise void and because the indictment was not returned prior to the expiration of the limitations period. The motion was heard on two separate dates, and the parties agreed to stipulate regarding what the magistrate's testimony would have been about the circumstances surrounding the signing of the arrest warrants. The hearings are not a part of the record on appeal. An undated stipulation was filed in the record after the hearings and after the trial court's ruling, and the stipulation reflected that the magistrate did not recall signing the arrest warrants, that he believed incorrect affidavits were attached to two of the arrest warrants by mistake, and that he would normally read the narrative "carefully" for the principal charge - in this case the DUI - and then "move[] on to 'ancillary' charges."

         The trial court found that the arrest warrant was at most voidable due to the defects in the other arrest warrants contemporaneously signed by the magistrate. Because it found that the arrest warrant was facially valid at the time the indictment was returned and that the Defendant was before the court "as a consequence of the action" of the grand jury, the trial court denied the motion to dismiss.

         The Defendant does not challenge the sufficiency of the evidence, and we give a brief summary of the facts presented at trial as pertinent to the issues on appeal. Officer Hummel testified that on October 11, 2015, soon after midnight, she observed the Defendant's car driving outside its lane, coming to a complete stop at a green light, veering off the roadway, and driving with the tires rubbing against the curb. Officer Hummel stopped the Defendant, who smelled of alcohol, acknowledged that he had been drinking, and failed a field sobriety test. Officer Hummel found two open cans of beer under the driver's seat of the vehicle. A video of the stop was introduced into evidence.

         Officer Hummel arrested the Defendant, and he consented to have his blood drawn. The Defendant waited while another man, who had likewise been arrested for DUI by Officer Hummel and her partner, was having his blood drawn. Officer Hummel testified that she observed the phlebotomist draw the Defendant's blood and place it into a vial and kit. Officer Hummel sealed the kit and placed it into the "evidence box for blood collection" at the Knox County Detention Facility. The video of the Defendant's arrest introduced into evidence largely shows the Defendant's blood being drawn, packaged, and sealed, and it shows Officer Hummel initialing the sealed box.

         During a jury-out hearing, the trial court ruled that the Defendant could cross-examine Officer Hummel regarding the mistaken affidavits attached to the dismissed charges to demonstrate that her paperwork may have been prone to mistakes. The affidavits were introduced into evidence and read into the record. Officer Hummel acknowledged that she had sworn under oath that the Defendant had failed to maintain his lane ...

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