        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                             AT KNOXVILLE                     December 29, 1999

                                                              Cecil Crowson, Jr.
                      OCTOBER SESSION, 1999                  Appellate Court Clerk




STATE OF TENNESSEE,          )   C.C.A. NO. 03C01-9812-CR-00424
                             )
      Appellee,              )
                             )
                             )   HAMILTON COUNTY
VS.                          )
                             )   HON. DOUGLAS A. MEYER,
DON PALMER BLACK,            )   JUDGE
                             )
      Appe llant.            )   (DUI-Second Offense)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF HAMILTON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

JERRY H. SUMMERS                 PAUL G. SUMMERS
500 Lindsay Street               Attorney General and Reporter
Chattanooga, TN 37403-3496
                                 MARVIN S. BLAIR, JR.
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 BILL COX
                                 District Attorney General

                                 DEAN FERRARO
                                 Assistant District Attorney General
                                 City and County Court Building
                                 Chattanooga, TN 37402




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                OPINION
      The Defen dant, Don Palmer Black, appeals as of right his conviction

pursuant to a Ham ilton Cou nty jury verdic t finding him guilty of second offense

driving under the influence of an intoxicant. He raises the following four issues

for review:

      I. Whether the trial court erred in not finding the Defendant's stop
      to be illegal when the reasonable suspicion supporting the stop
      consisted solely of weaving within the c onfines o f a single lane and
      when no traffic violation occurred.

      II. Whether the conviction should be reversed because the
      evidence was insufficient to suppo rt a guilty verdict since no rational
      trier of fact could have found that the D efenda nt was into xicated to
      the point that his driving was impaired.

      III. Whether the trial court erred in not allowing th e Defe ndant to
      assert the invalidity of his pr ior 198 8 DU I convic tion in th is
      proceeding when State v. McClintock is no longer valid law after the
      1996 a mend ments to the Po st-Con viction Pro cedure Act.

      IV. Whether the trial court erred in not allowing the Defendant to
      suppress evidence that he had not taken a chemical test because
      the implied c onsen t form was vague and failed to apprise the
      Defendant of the significant consequences of not taking the
      chem ical test.



      The only two witnesse s at trial were Officer Ro bert Starnes of the Hamilton

Coun ty Sheriff’s Department and the Defendant. Officer Starnes testified that on

December 17, 1994, he was a patrolman on the DUI task force in Hamilton

County, and his job was to travel around Hamilton Coun ty to look for people who

were driving under the influence. Shortly before 12:54 a.m. on December 17,

1994, Officer Starnes observed a 1975 GMC pickup truck traveling westbound

on Brainerd Road in Hamilton County. He gave the following account of what he

observed:




                                        -2-
       The vehicle was driving in the far right-hand lane over near the cu rb
       line, and the vehicle was driving all over that one lane.
              On one or two occasions I observed the vehicle almost
       actua lly strike the right edge o r curb of th e edge of the roadway.
       This seem ed ver y pecu liar to m e at this time, and this vehicle for no
       other appa rent re ason -- a dog hadn ’t run ou t in front o f the ca r, it
       didn’t appear any other reason, the brake lights didn’t come on, any
       other reason wh y the vehicle shou ld swerve over to ward the right
       side of the curb, so I – to check the driver o ut to verify if everything
       was okay, I activated my emergency equipment, which included blue
       lights and siren, to pull the person over to make sure everything was
       okay.

W hile Officer Starnes testified that the vehicle was swerving to the right, he

stated that the vehicle did no t leave its lane of traffic. He activated his lights, and

when he got no response from th e vehic le, he a ctivated his sire n. The vehicle

pulled over to the right-hand side of the road and up and over the sidewalk.



       After this testimony, counsel for the Defendant moved to suppress the stop

of the Defendant’s vehicle based on a lack of reasonable suspicion to make the

stop. During a jury-out hearing, Officer Starnes again explained why he stopped

the vehicle:

       The vehicle, I observed the vehicle traveling westbound. The
       vehicle was we aving in tha t lane, in the right-hand lane, and the
       vehicle almost struck the curb on the right edge of the road twice,
       and that was my primary reason to investigate, stop the driver, see
       if there w as po ssibly a problem why he was swerving toward the
       curb, beca use I d idn’t see h im apply for his brakes [sic] or anything
       of that nature or any dog or anything run out in front of him to cause
       him to go to the right.

The trial court expressed reservations about the stop, but reserved ruling on the

issue until afte r the trial.



       Again before the jury, Officer Starnes testified that as he approached the

vehicle, the Defendant exited the vehicle, and Starnes observed that the

Defendant was “very unsteady on his feet.”            Officer Starnes asked for the

                                           -3-
Defe ndan t’s driver’s license, which the Defendant produced, though he “fumbled

excessively” getting the license. Officer Starnes stated th at he noticed a very

strong odor of an a lcoho lic beve rage c omin g from the De fenda nt’s perso n as w ell

as coming from the vehicle. He also noticed that the Defendant’s eyes appeared

to be “bloo dshot a nd glass y.”



       Officer Starnes testified that he asked the Defendant to perfo rm so me fie ld

sobriety tests and asked the Defendant if he had any conditions which might

impa ir his ability to perform the tests. The Defendant replied that he was blind

in his right eye. Officer Starn es then had the Defend ant perform the “one-leg

stand” and the “walk and turn” tests, which the Defendant failed. On cross-

examination, defense counsel directed Officer Starnes’ attention to a student

manual which the officer used to teach other officers how to detect DUI offenders.

Officer Starnes admitted that the m anual sta tes that for th e field sob riety tests to

be valid, they must be administered in the prescribed, standardized manner and

that if any one of the standardized field sobriety test elements is changed, the

validity is compromised. H e also ackn owled ged th at acc ording to the m anua l,

“[p]ersons who cannot see ou t of one e ye ma y . . . have trouble with [the walk

and turn] test bec ause of poo r depth perce ption.”



       Officer Starnes arrested the Defendant and took him to the Hamilton

Cou nty Jail. Once at the jail, Officer Starnes requested that the Defendant

subm it to a chemical test to determine the alcohol content of his blood. The

Defendant refuse d to su bmit to the test and signed the standard implied consent

form in use at the time.




                                          -4-
       The Defendant testified that his righ t eye is a glass eye, which he has as

a result o f an ac ciden t with an aeros ol can . He sa id that h is eyes natura lly

become red every day, and he had his glass eye painted red so that it would

match his other eye. He takes two medications for seizures three times a d ay.

He stated that he is not supposed to drink alcohol with his medication, but on the

evening in que stion, h e dec ided to have a drink b ecau se he had n ot take n his

evening dose. He had a scotch a nd wa ter with h is dinn er at a re staura nt in

Chattanooga. He stated that after dinner, he was going home when he saw a

friend of his pulling into the parking lo t of a ba r. The Defe ndan t followe d his

friend and went into the bar to buy his friend a Christmas drink. He said that he

ordered a drink for h imself, bu t drank o nly abou t two sips o f it.



       After leaving the bar, the Defe ndan t was g oing h ome . He sa id that he was

driving in the right-hand lane of Brainerd Road and that he did not know Officer

Starnes was behind him until he heard the siren. He testified that the siren

“scared me to death,” so he pulled over and got out of the officer’s way so that

the officer could go around him. He stated that when he was stopped, he had not

done anything wrong, and he did not believe his driving abilities were impaired

in any wa y.



       The Defendant further testified that as he was pulling ove r to the side of the

road, he had a “mini seizure” triggered by being startled, which lasted only a rew

seconds. He explained that such a seizure “makes you floppy.” He stated, “Your

arms will hurt and you’re - - you just do n’t operate right.” When asked to take the

breathalyser test, the D efenda nt refuse d beca use he had be en told th at “those

machine s . . . aren’t accurate.”

                                           -5-
       The jury returned a verdict finding the Defendant guilty of second offense

driving under the influence. The trial court then sentenced the Defendan t to

eleven months, twenty-nine days incarceration, with all but forty-five days

suspended, as well as fifty days of co mm unity service .            After the trial, the

Defendant again challenged the legality of the stop of his vehicle. The trial cou rt

uphe ld the sto p statin g, “I’m g oing to rule against [the Defendant] for one reason:

On a factual basis, that articulable suspicion is increased when he failed to stop

in a half a mile, so that strengthens the articulable susp icion.” The cou rt went on

to explain, ?I’m finding there was an articulable suspicion to stop him, based on

the fact that he was weaving in that lane, almost hit the curb a couple of times.

. . . But the fac t it took him a half a mile to stop I think is the clinch ing point.”



                             I. MOTION TO SUPPRESS

       On appe al, the D efend ant on ce ag ain ch alleng es the initial stop of his

automobile, arguing that the evidence discovered as a result of that sto p sho uld

have been suppressed. W hen review ing the gra nt or den ial of a mo tion to

suppress,

       [q]uestions of credibility of the witnesses, the weight and value of the
       evidence, and resolution of conflicts in the eviden ce are ma tters
       entruste d to the trial jud ge as the trier of fact. The party prevailing
       in the trial cour t is entitled to the strongest legitimate view of the
       evidence adduc ed at the suppressio n hea ring as well as all
       reaso nable and legitimate inferences that may be drawn from that
       evidence. So long as the greater weigh t of the evidence supports
       the trial court’s findings, those findings shall be upheld. In other
       words, a trial co urt’s findings of fact in a suppression hearing will be
       upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, the application of the

law to the facts as found by the trial court is a question of law which the app ellate

court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn . 1997)


                                            -6-
(citing Beare Co. v. Tenn essee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn.

1993)). In uphold ing the sto p of the D efenda nt’s autom obile, the trial court

accredited Officer Starnes’ testimony that the Defendant was weavin g within his

own lane of traffic and that he swerved to the right twice and alm ost hit the curb

of the roadwa y. Thus, we must determine whether these facts justified the stop

of the Defendant’s automobile.



      The stop of an automobile and the detention of its occupants constitutes

a seizure, calling into play the protections of the United States and Tennessee

Constitutions, even if the purpose of the stop is limited and the detention is brief.

See Wren v. United States, 517 U.S. 8 06, 809 -10 (199 6); Delaware v. Prouse,

440 U.S. 648, 663 (19 79); State v. Vineyard , 958 S.W.2d 730, 734 (T enn. 1997 ).

Thus, to justify the seizure of an a utomob ile, an officer must at leas t have

reaso nable suspicio n, base d on sp ecific and articulable facts, that the occup ants

have been involved in or are about to be involved in criminal activity.          See

Ornelas v. United States, 517 U.S . 690, 693 (1996); Prouse, 440 U.S . at 663;

State v. Simpson, 968 S.W .2d 776 , 780 (T enn. 19 98); Vineyard, 958 S.W.2d at

734. “Reasonable suspicion” is an objective standard, to be determined by the

totality of the circu mstan ces. United States v. Cortez, 449 U.S. 411, 417-18

(1981); State v. Watkins, 827 S.W .2d 293, 294 (Tenn. 199 2). Relevant factors

to consider include the officer’s personal observations, information obtained from

other police office rs or age ncies, infor mation obtained from citize ns, and the

pattern of opera tion of certa in offende rs. Simpson, 968 S.W .2d at 783 ; Watkins,

827 S.W .2d at 294 ; Cortez, 449 U.S. at 418. A court must also consider the

rational inferences and deductions that a trained office r may dra w from th e facts

and circu mstan ces kno wn to him or her. Id.

                                         -7-
       When an officer turns on his blue lights, he h as initiated a stop or se izure

of an auto mobile . State v. Pully, 863 S.W.2d 29, 30 (Tenn. 1993). Therefore, an

officer must have reaso nable susp icion to stop the veh icle before turning on the

blue lights. Consequently, we must only consider the Defendant’s actions prior

to the tim e Offic er Sta rnes tu rned o n his b lue ligh ts, even thoug h the tria l court

upheld the seizure of the Defendant’s vehicle based on both the Defendan t’s

driving before the stop and the Defendant’s failure to respond immediately to the

officer’s instigation of a stop.



       In this case, the Defendant was weaving within his own lane of traffic, and

he swerved to the right twice, almost hitting the curb of the roadway. In the words

of Officer Starnes, he was “driving all over that one lane.” Such phenomena has

been described in other cases we have considered. In State v. Stuart Allen

Jenkins, C.C.A. No. 01C01-9712-CR-00590, 1998 W L 917806 (Tenn. Crim. A pp.,

Nashville, Dec. 21, 1998), the defendant’s vehicle was seized after an

anonymous inform ant rep orted th e vehic le’s licen se nu mbe r to polic e and told

police that the vehicle contained a possible drunk driver.             Then, an officer

matched the license number to the vehicle and observed the vehicle “weaving

exces sively in the roadwa y.” Id. at *2. After considering the credibility and

reliability of the informant, we stated, “[f]inally, the weaving observed by Trooper

Bass, albeit within the defendant’s lane of traffic, is another circumstance that

lends credence to the potential for a drunk driver as sta ted by the inform ant.” Id.

at *4. In State v. Donnie Ray Loden, C.C.A. No. 03C01-9311-CR-00380, 1995

W L 23351 (Tenn. Crim. App., Knoxville, Jan. 19, 1995), we upheld the trial

court’s finding of reasonable suspicion when the defendant’s vehicle was

observed “weaving extremely bad [sic]” and “sort of hugging the while [sic] line

                                            -8-
on the righ t and ju st wea ving re al bad [sic].” Id. at *1. The vehicle also “darted

over” to enter the westbound ramp leading onto the interstate. Id. Similarly, in

the case of State v. G uy Binette , C.C.A. No. 03C01-9802-CR-00075, 1999 WL

427606 (Tenn . Crim. A pp., Knoxville, June 28, 19 99), we uphe ld the tria l court’s

finding of reasonable suspicion when the officer ob served the d efend ant’s ve hicle

swerve and weave within its own lane, approach the dividing lines a number of

times, an d touch the cente r line at least tw ice.



       After reviewing the law as applied in these cases, we believe the facts

articulated by Officer Starnes are sufficien t to establish reasonable suspicion that

the Defendant was driving while under the influence. Not only did the Defendant

weave within his lan e, but he s werved twice, almost hitting the curb.          The

comment by Officer Starnes that the Defendant was “driving all over that one

lane” indicates that the Defendant was weaving excessively. We conclude that

this is evidenc e of erratic d riving justifying th e investigatory stop of the

Defen dant’s veh icle.



       W hile we uphold the stop of the De fenda nt’s veh icle ba sed o n reas onab le

suspicion of criminal activity, we recognize the Defendant’s concern that “a ‘no

weaving’ rule could neve r have realistic boun daries [in] determining w hether a

stop would be permissible” and caution that we sanction no such rule. We realize

that no driver drives perfectly at all times and that some movement inside a

driver’s own lane of travel is only natural and does n ot autom atically con stitute

reasonable suspicion of criminal activity. There must be specific an d articulate

evidence of actions by a driver which would qualify as erratic driving, as opposed

to mere in attention to detail and impe rfection , before an inve stigato ry stop is

                                          -9-
justified based only on the manner of driving of a vehicle when no traffic laws

have been violated.



                      II. SUFFICIENCY OF THE EVIDENCE

       Next, the Defendant challenges the sufficiency of the convicting evidence.

Tennessee Rule of Appe llate Pro cedu re 13(e ) presc ribes th at “[f]indin gs of g uilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reasonable d oubt.” Te nn. R. A pp. P. 13 (e). Eviden ce is sufficie nt if, after

reviewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reaso nable doubt.     Jack son v. V irginia, 443 U.S. 307 (1979).         In addition,

because conviction by a trier of fact destroys the presumption of innocence and

imposes a presumption of guilt, a convicted criminal defendant bears the burden

of showing that the evidence was insufficient. McBe e v. State, 372 S.W.2d 173,

176 (Tenn. 196 3); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

(citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown,

551 S.W .2d 329 , 331 (T enn. 1977)); State v. Tug gle, 639 S.W.2d 913, 914

(Tenn . 1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as we ll as all reas onable and legitim ate

inferences that may be drawn therefro m.” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78)). The court may not “re-

weigh or re-evalu ate the ev idence ” in the reco rd below . Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

                                          -10-
find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W .2d at 914 .



       Taking the evidence in the light most favorable to the State, the evidence

shows that the Defendant was “driving all over” his lane of traffic, that he swerved

twice and a lmos t hit the curb, that he did not immediately stop his vehicle when

Officer Starnes activated his lights, that when he did stop, he pulled his veh icle

up and over the sidewalk, that he had a strong odor of alcohol about his person

and his vehicle , that his “eye ” appea red bloo dshot and glassy, that he fumbled

“excessively” for his driver’s license, that he admitted drinking, that he failed two

sobriety tests, and that he refu sed to tak e a brea thalyser te st.        All of this

evidence, taken together, is sufficient for a rational juror to find the Defe ndan t’s

guilt beyon d a reas onable doubt.



       The Defendant makes a strong argument in which he attacks a nd attem pts

to und ermin e the s ufficien cy of all of this evidence by emphasizing both Officer

Starnes’ testimony and the Defendant’s testimony, but the Defendant’s attack

goes to the credibility and weigh t of the evidence, which are matters for the

determination of the jury. Because we cannot re-weigh the evidence or re-

evaluate the witnesses’ credibility and beca use we are required to reso lve

conflicts in testimony in favor of the jury verdict, we mus t acce pt the S tate’s

evidence. Accordingly, we find that the evidenc e supp orts the verdict rendered

by the jury a nd uph old that verd ict.




                                          -11-
                             III. ATTACK ON PRIOR DUI

         The Defendant argues that the trial court erred in not allowing him to assert

the invalidity of his facially valid prior 1988 DUI conviction in this proceeding. He

asserts that State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), w hich proh ibits

collateral attack s on fa cially valid judgments in subsequent proceedings in which

the challenged convictions are used to enhance punishment, is no lon ger va lid

law after the 1986 and 1995 amendments to the Post-C onviction P rocedu re Act,

which placed a statute of limitations on the filing of a post-conviction petition. W e

previo usly considered and rejected this precise argument in the case of State v.

Phillip Todd Swords, C.C.A. No. 03C01-9807-CR-00239, 1999 WL 222702, *6-7

(Tenn. Crim. App., Knoxville, Apr. 14, 1999), in which we stated,

                 According to our supreme court in State v. McClintock 732
         S.W.2d 268 (T enn. 1 987), “ The rule ha s bee n firmly e stablis hed in
         Tennessee that a fa cially valid , unrev ersed judgm ent in a court w ith
         jurisdiction over the subject matter and the person cannot be
         collate rally attacked in a subsequent proceeding except by the
         authorized routes of attack .” W e dec line to h old the rule announced
         in McClintock uncon stitutional follow ing institution of a statute of
         limitations for post-conviction petitions, as Defendant requests that
         this Court hold.

Id. at *6 (quoting McClintock, 732 S.W .2d at 272 ). Accordingly, this issue has no

merit.



                   IV. VALIDITY OF IMPLIED CONSENT FORM

         In his fina l issue, th e Def enda nt argu es tha t the trial c ourt erred in not

suppressing evidence that he refused to submit to a chemical test to determine

the alcohol content of his blood. He asserts tha t the evidence sh ould have been

suppressed because the implied c onsen t form tha t was use d to obtain his refusal

was vague and failed to inform him of the significant consequences of refusing

or subm itting to such a test.

                                            -12-
       In the case of State v. Whaley, 982 S.W .2d 346, 349 (Tenn. Crim. App.

1997), we considered the issue of whether the implied consent form was vague

or mislead ing as ap plied to a p erson w ho sub mitted to the test. In that case, the

defendant submitted to the breathalyser test and then subsequently argued that

the results should h ave been suppressed because the implied consent form was

unco nstitutiona lly vague and misleading in that it failed to inform her of the

consequences of subm itting to the tes t. We noted that the form clearly indicated

that the purpose of the test is to determine the drug and alcohol content of the

accu sed’s blood an d that the a verage p erson w ould un derstan d that the re sults

will be used against him. If the test could not be used to prosecute the person

for the crime charged, then there would be no purpose for administering the test.

Id. In addition , we reco gnized the prior ho lding by this Court tha t “admonitions

prior to submitting to a blood alcohol test are not req uired to susta in a valid

conse nt.” Id. (citing King v. State , 598 S.W.2d 834, 835 (Tenn. Crim. App.

1980)). T herefore , we foun d the form to be neith er vague nor mis leading. Id.



       Similarly, we do not find the form to be vague or mislea ding as a pplied to

a person who refuses to submit to the test. As required by Tennessee Code

Annotated § 55-10-40 6(a), the conse nt form signed by the Defendant informed

him that he could refuse the test, bu t that if he refuse d, his d river’s license would

be suspended. Though the form did not tell him that his refusal could be used

against him as an inference of guilt, we believe that an avera ge pe rson w ould

understand that that could be a possible result of refusal. Nothing on th e form

could have caused him to believe that his refusal would not have been used

against him. In addition, “nothing in the statute requires that a driver be given

Miranda-like admo nitions” prio r to reque sting con sent to pe rform su ch a test.

                                          -13-
See King, 598 S.W.2d at 835. We therefore decline to hold that the implied

consent form is constitutionally defective and instead hold that the Defe ndan t’s

refusal to subm it to the test wa s prope rly admitted into eviden ce. See State v.

Frasier, 914 S.W .2d 467 (Tenn . 1996); State v. S mith, 681 S.W.2d 569, 570

(Tenn . Crim. A pp. 198 4).



      The judgment of the trial court is affirmed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE



___________________________________
DAVID G. HAYES, JUDGE




                                       -14-
