         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 7, 2001 Session

                   STATE OF TENNESSEE v. PAUL PAYNE, JR.

                       Appeal from the Circuit Court for Tipton County
                           No. 3934 Joseph H. Walker, Judge



                  No. W2001-00216-CCA-R3-CD - Filed February 19, 2002


The defendant, Paul Payne, Jr., was convicted in a bench trial of driving under the influence of an
intoxicant. The trial court imposed a sentence of 11 months and 29 days and suspended all but 48
hours. The defendant was fined $350.00. In this appeal of right, the defendant complains that the
stop of his vehicle was unlawful, that the evidence at trial was insufficient, and that there was no
reasonable basis for the administration of the blood alcohol test. The judgment is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Michael W. Whitaker, Covington, Tennessee, for the appellant, Paul Payne, Jr.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; and
Kim Linville, Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        Shortly after midnight on September 4, 1999, Officer Mike Durham of the Atoka Police
Department was patrolling Highway 51, a divided four-lane highway, when he observed a vehicle
weaving back and forth from the center line over beyond the fog line in the left-hand lane. As the
vehicle made a left turn across the oncoming lanes of Highway 51 and onto Tipton Road, Officer
Durham saw it veer into the oncoming lane of traffic before being directed back into the proper lane.
After following the vehicle for approximately one-fourth mile, Officer Durham activated his blue
lights and the vehicle stopped. Because the driver's window was open when Officer Durham
approached the vehicle, he was able to detect the odor of alcohol from the defendant, who was in the
driver's seat. As the defendant handed Officer Durham his operator's license, a second officer,
Richard Glasgow, arrived at the scene. Officer Durham asked the defendant to step outside of the
vehicle and then asked the defendant whether he had any physical conditions that would prevent him
from performing field sobriety tests. When the defendant answered in the negative, Officer Durham
administered the nine-step heel-to-toe walk and turn. According to the officer, the defendant took
12 steps instead of nine, raised his hands to steady himself, and stepped off the center line more than
once. When performing the one-leg stand, the defendant dropped one foot on the second count.
According to the officer, the defendant was also unable to perform the test on a second attempt and,
on a third attempt, acknowledged that he was unable to satisfactorily perform the test. Finally, the
defendant performed poorly on the finger-to-nose test. When questioned, the defendant admitted
to Officer Durham that he had drunk a pint of gin. A search of the vehicle yielded three marijuana
cigarettes in the front ashtray, one marijuana cigarette in the rear ashtray, hemostats, and a pair of
tweezers with burn marks.

          Officer Glasgow, who videotaped the field sobriety tests, submitted the videotape as evidence
at trial. Officer Glasgow confirmed that he had performed a search of the vehicle and recovered the
items described.

         Officer Durham testified that the defendant consented to a breathalyzer examination. He
registered .14 on the ECIR Intoximeter. Special Agent Robert Marshall of the TBI, an expert in the
field of calibration of blood alcohol instruments, testified that the Intoximeter was properly certified
and calibrated before and after the date of arrest and was operating properly when the defendant was
tested.

        Atoka Police Officer Mark Johnson transported the drugs to the TBI Crime Laboratory.
Special Agent Brian Lee Eaton, who performed the chemical analysis, confirmed that the substance
taken from the vehicle was marijuana.

        The defendant, a 53-year-old bus driver for the Massachusetts Transportation Authority, held
a commercial driver's license and had been a bus driver for 26 years. Originally from Atoka, the
defendant testified that he had flown into Memphis on September 3 and had arrived at his sister's
house in Atoka at approximately 10:00 P.M. He testified that shortly after his arrival, he borrowed
his sister's car and drove to Harper's Café, owned by Eddie Harper, who was an old friend. The
defendant recalled that he visited with four of his old friends while at Harper's and he claimed that
he took only one drink from his half-pint bottle of Canadian Mist Bourbon. He claimed that he
stayed at the café only 30 minutes before his departure and denied having driven recklessly before
his arrest by Officer Durham. The defendant contended that the only time he crossed the centerline
was to make the left turn onto Tipton Road on his way back to his sister's residence. At trial, he
acknowledged telling Officer Durham that he had a drink at the bar and he recalled giving his
consent to the field sobriety tests. The defendant explained that his unsatisfactory performance on
the tests was due to injuries he received to his left leg while serving in Vietnam. He testified that
he not only had a permanent injury to his left calf muscle but also later had a steel plate inserted into
his left knee. He claimed that he had to walk like a "duck" in order to keep his balance. The
defendant acknowledged that he was unable to perform the one-leg stand because of his injured left
leg. He contended, however, that he had informed Officer Durham that he would be unable to
balance himself because of his leg injury. He testified that he was unable to balance himself on that
leg because he was wearing high-heeled dress shoes. After conceding that he had never informed


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Officer Durham that his injuries would hamper his performance on the walk and turn test, he claimed
that his injuries did, in fact, cause his failure. He contended that Officer Durham had not allowed
him to finish one of the field sobriety tests and had failed to provide proper instructions on the heel-
to-toe test.

        The defendant also insisted that Officer Glasgow began to search his vehicle as soon as he
arrived at the scene. He remembered that Officer Glasgow yelled, "I've got drug paraphernalia," just
before Officer Durham placed him in handcuffs. The defendant denied any knowledge of the
marijuana or the hemostats. The defendant testified that as a bus driver, he was often required to
take breathalyzer examinations. He blamed his high test results on the officer's failure to provide
him with a clean mouthpiece.

                                                  I
        The defendant first argues that the arresting officer had an insufficient basis for the
investigatory stop. He argues that Tennessee courts require that a driver display "erratic" driving,
something more than weaving within a single lane of the roadway. He describes the Tennessee
standard for an investigatory stop as "weaving plus," much more than mere imperfections in driving
a vehicle.

        Both the state and federal constitutions protect individuals from unreasonable searches and
seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any
evidence discovered subject to suppression. U.S. Const. amend IV; Tenn. Const. art. I, § 7; Coolidge
v. New Hampshire, 403 U.S. 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997).
An automobile stop constitutes a "seizure" within the meaning of both the Fourth Amendment of the
United States Constitution and Article I, Section 7 of the Tennessee Constitution. Michigan Dep't
of State Police v. Sitz, 496 U.S. 444, 450 (1990); Delaware v. Prouse, 440 U.S. 648, 653 (1979);
State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994); State v. Westbrooks, 594 S.W.2d
741, 743 (Tenn. Crim. App. 1979). The fact that the detention may be brief and limited in scope
does not alter that fact. Prouse, 440 U.S. at 653; State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993);
Binion, 900 S.W.2d at 705; Westbrooks, 594 S.W.2d at 743. The basic question, as indicated, is
whether the seizure was "reasonable." Binion, 900 S.W.2d at 705 (citing Sitz, 496 U.S. at 444). The
state always carries the burden of establishing the reasonableness of any detention. See State v.
Matthew Manuel, No. 87-96-III (Tenn. Crim. App., at Nashville, Nov. 23, 1988).

        Among the narrowly defined exceptions to the warrant requirement is an investigatory stop.
 See Terry v. Ohio, 392 U.S. 1 (1968). An investigatory stop is deemed less intrusive than an arrest.
See id. In Pulley, our supreme court ruled that "the reasonableness of seizures less intrusive than a
full-scale arrest is judged by weighing the gravity of the public concern, the degree to which the
seizure advances that concern, and the severity of the intrusion into individual privacy." 863 S.W.2d
at 30.

        Our determination of the reasonableness of the stop of the vehicle depends on whether the
officers had either probable cause or an "articulable and reasonable suspicion" that the vehicle or its


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occupants were subject to seizure for violation of the law. See Prouse, 440 U.S. at 663; State v.
Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989). Probable cause has been generally defined
as a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. See
Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d 351, 352 (1944). While probable cause is not
necessary for an investigative stop, it is a requirement that the officer's reasonable suspicion be
supported by “specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21; Pulley, 863 S.W.2d at 30; Coleman,
792 S.W.2d at 505; see also State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (applying Terry
doctrine in context of vehicular stop). In determining whether reasonable suspicion exists, an
important factor in the analysis is that

       [r]easonable suspicion is a less demanding standard than probable cause not only in
       the sense that reasonable suspicion can be established with information that is
       different in quantity or content than that required to establish probable cause, but also
       in the sense that reasonable suspicion can arise from information that is less reliable
       than that required to show probable cause.

Pulley, 863 S.W.2d at 32 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).

        Courts considering the issue of reasonable suspicion must look to the totality of the
circumstances. Those circumstances include the personal observations of the police officer,
information obtained from other officers or agencies, information obtained from citizens, and the
pattern of operation of certain offenders. Watkins, 827 S.W.2d at 294 (citing United States v.
Cortez, 499 U.S. 411, 417-18 (1981)). Objective standards apply rather than the subjective beliefs
of the officer making the stop. State v. Norwood, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996).

        In this instance, the trial court overruled the motion to suppress, concluding that the officer
had a reasonable basis to stop the vehicle and probable cause to arrest the defendant and direct a
blood alcohol examination. In State v. Odom, 928 S.W.2d 18 (Tenn. 1996), our supreme court held
that a trial court's finding of fact in a suppression hearing should be upheld unless the evidence
preponderates otherwise. The application of the law to the facts, however, remains a question of law
that requires de novo review. State v. Daniel, 12 S.W.3d 420, 423-24 (Tenn. 2000). If the evidence
does not involve a credibility assessment, the reviewing court must examine the record de novo
without a presumption of correctness. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        The defendant relies primarily upon two cases: State v. Smith, 21 S.W.3d 251 (Tenn. Crim.
App. 1999), and State v. Binette, 33 S.W.3d 215 (Tenn. 2000). In Smith, a panel of our court held
that failing to signal a lane change neither violated the traffic code nor justified a stop and that
driving on the white line after making a lane change was not a sufficient basis for a reasonable
suspicion that the defendant was intoxicated. 21 S.W.3d at 257-58. In Binette, a videotape
established that the defendant was weaving within his own lane of traffic along a winding road. The
videotape also showed that "Binette did not violate any rules of the road during the period in which
the video camera recorded his driving." 33 S.W.3d at 219. Our supreme court determined that


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Binette had proceeded correctly through a number of intersections and stop lights and had
maintained a proper distance behind the vehicles he was following. It observed that during the entire
video taping, Binette's vehicle only twice touched the centerline in his own lane. Under these
circumstances, the court held that there were not sufficient specific and articulable facts to support
a reasonable suspicion justifying the investigatory stop.

        The facts in the case at issue are distinguishable from those in both Smith and Binette. Here,
Officer Durham observed the defendant weave back and forth several times from the center line over
past the fog line in the left-hand lane of a four-lane highway. When the defendant made the turn
onto Tipton Road, he veered into the oncoming lane of traffic before returning to the proper lane.
These circumstances, in our view, are more exaggerated and serve as a reasonable basis for the
investigatory stop. The articulable facts suggest more than mere imperfections in driving or
inattention to detail. See State v. Chris A. Jefferson, No. E2000-00429-CCA-R3-CD (Tenn. Crim.
App., at Knoxville, Dec. 8, 2000); State v. Don Palmer Black, No. 03C01-9812-CR-00424 (Tenn.
Crim. App., at Knoxville, Dec. 29, 1999).

                                                  II
       Next, the defendant challenges the sufficiency of the evidence. This argument is based
primarily upon the defendant's contention that the evidence gained as a result of the stop should have
been suppressed.

         On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing 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. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.
298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

        The evidence establishing the guilt of the defendant included his weaving across the fog line
several times and actually driving in the lane of oncoming traffic on Tipton Road. According to
Officer Durham, the defendant smelled of alcohol and performed poorly on three field sobriety tests.
The defendant admitted that he had consumed alcohol and registered .14 on a breathalyzer
examination. In our view, the evidence was sufficient.




                                                   -5-
                                                     III
        Finally, the defendant argues that the results of the blood alcohol examination should have
been suppressed. The defendant submits that his physical disabilities were the cause of his failure
to adequately perform the field sobriety tests and, had the officer properly inquired about these
limitations, the results of the field sobriety tests would not qualify as reasonable suspicion to justify
the blood alcohol examination.

         The administration of a breathalyzer examination for a determination of the blood alcohol
level is a seizure of the person and falls within the protections of the federal and state constitutions.
Warrantless searches, as previously indicated, are presumed unreasonable, subject to certain
exceptions. One exception to the warrant requirement is the exigent circumstances rule. Because
the blood alcohol content diminishes with time, a compulsory blood alcohol examination falls within
the exigent circumstances exception. State v. Michael A. Janosky, No. M1999-02574-CCA-R3-CD
(Tenn. Crim. App., at Nashville, Sept. 29, 2000) (citing Schmerber v. California, 384 U.S. 757, 770
(1966)); see also generally State v. Krantz, 848 P.2d 296, 299 (Ariz. App. 1993); State v. Taylor, 531
A.2d 157, 160 (Conn. App. 1987); State v. Nickerson, 973 P.2d 758, 762 (Ida. Ct. App. 1999);
Village of Algonquin v. Ford, 495 N.E.2d 595, 596 (Ill. App. 1986).

         In addition to the exigent circumstances, another basis that supports the admissibility of the
breathalyzer test is the defendant's consent. Tennessee Code Annotated section 55-10-406(a)(1)
provides that "any person who drives any motor vehicle in the state is deemed to have given consent"
to a test for blood alcohol or drug content, provided that the law enforcement officer has "reasonable
grounds to believe such a person was driving under the influence of an intoxicant or a drug."

        In our view, the defendant's erratic driving, his admission that he had consumed alcohol, and
his failure to perform satisfactorily on the field sobriety tests formed the factual basis that a blood
alcohol test was likely to reveal further evidence of the offense of driving under the influence.
Moreover, the record demonstrates that the defendant consented to the examination under Tennessee
Code Annotated section 55-10-406(a)(1). This issue, therefore, has no merit.

        Accordingly, the judgment is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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