State v. David H. Smith

DUI brief to the Tennessee Court of Criminal Appeals

by Davis & Hoss, PC


The defendant states that there was insufficient evidence to convict him of driving under the influence as defined in T.C.A. §55-10-401. Simply put, there were no observations of impaired driving and there was minimal proof put before the jury (other than the BAC test) that could lead a reasonable juror to conclude that the defendant was impaired. Here, the defendant was acquitted by the jury of DUI per se, but he was found guilty of another count of DUI related to this single incident.

It is understood and familiar that where the sufficiency of the evidence is challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in the light most favorable to the [State], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). It is long settled in Tennessee law that on appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn there from. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). And, a guilty verdict removes the presumption of innocence which the defendant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The defendant is aware that he has the burden of overcoming this presumption of guilt.

It is also accepted that the state has the discretion to indict a defendant on two separate DUI counts stemming from a single alleged incident of DUI; and, both counts can be determined by the jury without the requirement of an election. State v. Delfro Willis, C.C.A. No.02C01-9810-CC-00336, 1999 WL 487032, at *2-3 (Tenn. Crim. App. filed July 12, 1999), perm. to app. denied (Tenn. 1999). However, when a jury makes a factual finding and acquits the defendant on the DUI per se charge, the Court should look at other evidence (other than the BAC) to see if such evidence supports the conviction of driving under the influence. Here, even when viewed in a light most favorably to the state, there was insufficient evidence to convict. The rationale supporting this argument is that the jury did actually make a factual finding and conclude that the defendant is not guilty of DUI per se. By stating its findings with a not guilty verdict, the jury has said that the state did not meet its burden of proving the defendant guilty beyond a reasonable doubt for this count. Significantly, the indictment is for a single alleged act of DUI and the proof was straightforward at trial. If the Court is not satisfied that the remaining evidence (other than the BAC) establishes guilt of the offense, then the Court should set aside the jury conviction.

The defendant is aware that even if the verdicts are inconsistent, any seeming inconsistency is in most cases irrelevant since each count is considered a separate indictment and consistency is not required. Wiggins v. State, 498 S.W. 2d. 92, 93-94 (Tenn. 1973). However, this case is different from most in that the only meaningful evidence of impairment is from the results of the BAC test, an element of the DUI count on which he was acquitted. No other reasonable evidence of impairment exists to support a DUI conviction, even when viewed in favor of the prosecution.

Officer Huggins offered minimal testimony on defendant’s alleged DUI. He testified that on the night of the defendant’s arrest, conditions on Shallowford Road were foggy, and his visibility was poor. Officer Huggins observed no suspect driving other than defendant’s apparent speeding that was picked up by radar. The officer’s radar recorded the defendant’s vehicle traveling fifty-eight miles per hour in a forty mile-an-hour zone. The defendant does not dispute speeding.

When the officer fell in behind the defendant and activated his blue lights, the defendant appropriately complied with this show of authority and obeyed all traffic regulations and rules as he pulled his vehicle over. Officer Huggins testified that he did not observe any poor driving that might trigger a DUI stop (i.e. swerving, improper lane changes, or being involved in an accident).

Once the vehicle stopped, Officer Huggins approached the defendant’s car and requested his license and proof of insurance, commands that the defendant understood and with which he immediately complied. At that time, the officer stated he smelled some alcohol on the defendant’s breath. The defendant replied that he had two drinks at a nearby restaurant. Officer Huggins then asked the defendant to perform a series of field sobriety tests (FSTs) to determine if he was impaired. The defendant complied with each request made by the officer and as the video clearly shows he gave no indication of impairment as he remained articulate and steady on his feet throughout the entire stop.

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Reference Info: Appellate Brief | State, 6th Circuit, Tennessee | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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