       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 September 9, 2008 Session

                     STATE OF TENNESSEE v. VICKI HOGAN

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 06-05140 Lee V. Coffee, Judge




                  No. W2007-01957-CCA-R3-CD - Filed February 20, 2009



A Shelby County Criminal Court jury convicted the appellant, Vicki Hogan, of driving under the
influence (DUI) and DUI per se. The trial court merged the convictions and sentenced the appellant
to eleven months, twenty-nine days to be served as ten days in jail and the remainder on probation.
On appeal, the appellant contends that both of her convictions should be reversed because the trial
court improperly allowed the State to introduce into evidence the result of her breathalyzer test,
which the Memphis Police Department administered more than three hours after her arrest, in direct
contravention to the plain language of Tennessee Code Annotated section 55-10-406(a)(1). Based
upon the record and the parties’ briefs, we conclude that the appellant’s DUI per se conviction
should be reversed. However, the appellant has waived her claim regarding the DUI conviction
because she failed to comply with Rule 24(c), Tennessee Rules of Appellate Procedure, which
requires that an appellant’s statement of the evidence convey a “complete account of what transpired
with respect to those issues that are the bases of appeal.”

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed in Part
                                 and Reversed in Part.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE
R. MCMULLEN , JJ., joined.

James R. Nowlin, Memphis, Tennessee, for the appellant, Vicki Hogan.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Kirby May, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background
        The appellant failed to include in the record for our review a transcript of the trial. However,
pursuant to Tennessee Rule of Appellate Procedure 24(c), she included a statement of the evidence.
According to the statement, the police arrested the appellant at 4:26 a.m. on November 25, 2005, for
DUI. A Memphis police officer arrived on the scene to administer a breathalyzer test, but he decided
not to give her the test because he knew her or her family. Subsequently, another officer arrived on
the scene and administered the test to the appellant at 7:33 a.m. The appellant’s blood alcohol
content (BAC) was .113 percent, and the appellant was charged with DUI, DUI per se, and reckless
driving. The jury convicted her of the DUI offenses and found her not guilty of reckless driving.

          The record reflects that prior to trial, the appellant filed a motion to suppress the breathalyzer
test result because the “results were not obtained within the requisite time which is a prerequisite to
the admission of a blood alcohol test result.” In the motion, the appellant cited Tennessee Code
Annotated section 55-10-406(a)(1), which provides that in order for such test result to be admissible
at trial, the test must be administered to a defendant within two hours after the defendant’s initial
detention or arrest. According to the motion, the police initially detained the appellant at 4:10 a.m.
and arrested her at 4:26 a.m. However, an officer did not give her the breathalyzer test until 7:30
a.m.

       At a pretrial motions hearing, the appellant argued that the statute was unambiguous and,
therefore, that the trial court was required to apply its plain meaning and prohibit the State from
introducing the breath test result into evidence. The State acknowledged that the test was given to
the appellant approximately three hours after her arrest but argued that the trial court should find an
exception to the two-hour time limit because “the officers did all they could do to follow the
protocols they needed to, to protect the interest of the defendant.” The trial court refused to find that
an exception to the statute applied. Instead, the court found that the

                legislative intent as the Court remembers it, since it’s one of the
                things that the Court as a member of the Tennessee Judicial Counsel
                reviews legislation that is proposed for the governor’s signature, and
                one of the reasons for the statute was to account for situations in
                which a defendant may have been driving a car, leaves the scene of
                where a car may have been driven and there is some allegation that
                the defendant may have gone to some other location and consumed
                alcoholic beverages at some other location and that may have
                accounted for a consumption of alcohol that may not be reliable
                because the defendant may not have been driving and operating a car
                at a certain time frame and consumed alcohol within that time frame.

Given that no proof had been presented at the pretrial motions hearing that the appellant drank any
alcohol after her arrest, the court concluded that the legislative intent behind the statute had been
satisfied and that the breathalyzer test result was accurate. Therefore, the trial court denied the
appellant’s motion.


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                                             II. Analysis

        The appellant contends that the trial court erred by allowing the State to introduce the
breathalyzer test result into evidence because an officer administered the test over three hours after
her arrest and the test was inadmissible pursuant to Tennessee Code Annotated section 55-10-
406(a)(1). She contends that her DUI per se conviction must be reversed because the test result was
the only evidence that the alcohol concentration of her blood was .08 percent or more. She also
contends that the test result prejudiced her regarding the DUI conviction because the trial court
instructed the jury that if the jury concluded the result of the appellant’s BAC was .08 percent or
more, the jury could infer the appellant was too impaired to drive. The State concedes that the trial
court erroneously allowed the test result to be admitted into evidence and that the appellant’s DUI
per se conviction must be reversed. However, the State argues that the appellant does not challenge
her remaining DUI conviction and, therefore, that the conviction remains in effect. The State also
contends that, in any event, the error was harmless. The appellant responds that she is challenging
both convictions. We conclude that the appellant’s DUI per se conviction should be reversed but
that the appellant has waived her claim regarding the remaining DUI conviction because her
statement of the evidence is insufficient for us to determine whether the appellant is entitled to relief.

        Generally, a person commits DUI based on impairment when the person drives or is in
physical control of a vehicle on any public road in this state while the person is under the influence
of an intoxicant. Tenn. Code Ann.§ 55-10-401(a)(1). A person commits DUI per se when the
person drives or is in physical control of a vehicle on any public road in this state while the alcohol
concentration of the person’s blood is 0.08 percent or more. Tenn. Code Ann.§ 55-10-401(a)(2).
Tennessee Code Annotated section 55-10-406, the implied consent statute, provides as follows:

                Any person who drives a motor vehicle in this state is deemed to have
                given consent to a test or tests for the purpose of determining the
                alcoholic content of that person’s blood, a test or tests for the purpose
                of determining the drug content of such person’s blood, or both such
                tests. However, no such test or tests may be administered pursuant to
                this section, unless conducted at the direction of a law enforcement
                officer having reasonable grounds to believe such person was driving
                while under the influence of alcohol, a drug, any other intoxicant or
                any combination of alcohol, drugs, or other intoxicants as prohibited
                by § 55-10-401, or was violating the provisions of §§ 39-13-106,
                39-13-213(a)(2) or 39-13-218. For the results of such test or tests
                to be admissible as evidence, it must first be established that all tests
                administered were administered to the person within two (2) hours
                following such person’s arrest or initial detention.

Tenn. Code Ann. § 55-10-406(a)(1).

        The State does not contest the appellant’s claim that the officer administered the breathalyzer


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test more than two hours after her arrest. Clearly, the test was inadmissible under the plain language
of the implied consent statute. See Parks v. Tennessee Mun. League Risk Mgmt. Pool, 974 S.W.2d
677, 679 (Tenn. 1998) (providing that if the language of a statute is unambiguous, the court must
apply its ordinary and plain meaning). As the State concedes, without any proof at trial that the
appellant’s BAC was .08 percent or more, the appellant’s DUI per se conviction must be reversed.

       The appellant also contends that the test result prejudiced her regarding the remaining DUI
conviction because the trial court instructed the jury that if the jury concluded the result of the
appellant’s BAC was .08 percent or more, the jury could infer the appellant was too impaired to
drive. The appellant raised this argument in her appellate brief. Nevertheless, we conclude that she
has waived the issue.

         The appellant included a copy of the trial court’s written jury instructions in the appellate
record. According to the instructions, the trial court instructed the jury on Tennessee Pattern Jury
Instruction 38.05--Criminal (11th ed. 2007), the inference for DUI by impairment which may be
drawn from the fact that the appellant had a blood alcohol level of .08 percent or more. Because the
trial court improperly admitted the breathalyzer test result into evidence, it improperly instructed the
jury on inferring the appellant’s guilt from the test result. However, Tennessee Rule of Appellate
Procedure 24(c) provides that if a transcript of the evidence is unavailable, the appellant must
prepare a statement of the evidence. Furthermore, the statement “should convey a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of appeal.” Tenn.
R. App. P. 24(c). In this case, the appellant’s statement of the evidence at trial consists of only eight
sentences. In pertinent part, it states that the appellant was arrested on November 25, 2005, at 4:26
a.m. for driving under the influence; that an officer administered the breath test to her at 7:33 a.m.;
and that the test result was .113. We note that in the appellant’s brief, she contends that the
underlying facts regarding the time of her arrest and the time of her breath test result were
established in the pretrial motions hearing and are not in dispute. However, in her reply brief, the
appellant contends that the State “implicitly asks this appellate court to assume that the testimony
at the motion to suppress was the same at trial. To make such an assumption would be improper.”
We agree with the appellant’s latter assertion, and without any information as to what evidence the
jury considered at trial in convicting her of DUI, we cannot assess the harm of the improper
instruction. Therefore, we conclude that the appellant has waived any consideration of this issue on
appeal.

                                           III. Conclusion

       Based upon the record and the parties’ briefs, the appellant’s DUI per se conviction is
reversed and the charge is dismissed. The appellant’s DUI conviction is affirmed.

                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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