              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                              FILED
                                                                          February 10, 2000
                             JANUARY 2000 SESSION
                                                                          Cecil Crowson, Jr.
                                                                         Appellate Court Clerk


STATE OF TENNESSEE,               )
                                  )
             Appellee,            )      No. E1999-00384-CCA-R3-CD
                                  )
                                  )      Sullivan County
v.                                )
                                  )      Honorable Phyllis H. Miller, Judge
                                  )
WAYNE LEROY EVANS,                )      (Driving under the influence of an intoxicant,
                                  )      second offense)
                                  )
             Appellant.           )


For the Appellant:                       For the Appellee:

Stephen M. Wallace                       Paul G. Summers
District Public Defender                 Attorney General of Tennessee
        and                                     and
William A. Kennedy                       R. Stephen Jobe
Assistant Public Defender                Assistant Attorney General of Tennessee
Post Office Box 839                      425 Fifth Avenue North
Blountville, TN 37617-0839               Nashville, TN 37243
(AT TRIAL)
                                         H. Greeley Wells, Jr.
Julie A. Rice                            District Attorney General
Post Office Box 426                              and
Knoxville, TN 37901-0426                 Gregory A. Newman
(ON APPEAL)                              Assistant District Attorney General
                                         Post Office Box 526
                                         Blountville, TN 37617-0526




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge




                                      OPINION



             The defendant, W ayne Leroy Evans, appeals as of right from his

conviction by a jury in the Sullivan County Criminal Court for driving under the influence
of an intoxicant (DUI), second offense. He was sentenced to eleven months, twenty-

nine days, with one hundred twenty days in the county jail and the remainder to be

served on probation. He was given credit for time served and was immediately
released on probation. The defendant contends that the evidence is insufficient to

support his conviction. We affirm the conviction.



              At trial, Nancy Cline testified that on June 19, 1997, she was riding as a

passenger in a friend’s car on John B. Dennis Highway when she noticed a van driving

in the opposite direction. She said she saw the van hit a bridge, bounce, hit the bridge
again, then travel across the median and hit a guard rail. She said she looked into the

van and saw the defendant with blood on his head. She said the rescue squad and

police arrived a short time later.


              Kingsport Police Officer Nelson Quillen testified that he arrived at the

scene around 9:00 p.m. He said the defendant had already been taken to Holston

Valley Hospital. He said the sky was clear that day and the asphalt was dry. Officer

Quillen said he went to the hospital and requested that blood be drawn from the

defendant. He said the defendant was unconscious and smelled strongly of alcohol.



              Dr. Kenneth Ferslew, a professor of Pharmacology and Toxicology at the
James H. Quillen College of Medicine at East Tennessee State University, testified that

he reviewed the defendant’s toxicology report from Holston Valley Hospital. He said the

defendant’s plasma alcohol level was tested and revealed a level of .24 percent. He
said a plasma alcohol level of .24 percent equals a blood alcohol level of .19 percent.

He said the defendant’s urine drug screen tested positive for opiates and

benzodiazepines.


              Rita Lockhart testified that she is the defendant’s ex-wife but that she and

the defendant were married at the time of the offense. She said the defendant was

home intermittently during the day of June 19. She said that she did not see the
defendant consume alcohol that day and that the defendant exhibited no signs of

intoxication. She said that the defendant’s van was in poor condition and that the

wheels had come off a few weeks earlier.

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                 Greg Alvis, the defendant’s neighbor, testified that on June 19, he saw the

defendant at 9:00 a.m., 2:00 p.m., and 8:30 p.m. He said the defendant never

appeared intoxicated. He said that around 8:30 p.m., he was in his yard when he saw
the defendant walk to his mailbox. Mr. Alvis said that although he was thirty feet from

the defendant and could not smell his breath, the defendant did not appear to be

intoxicated.


                 The defendant testified that he did not remember much about the day of

the incident other than that he did not drink alcohol that day. He said the left rear wheel
of his van had come off previously, causing brake fluid to spill on the brake shoes. He

said that he washed the brake shoes but that the van “grabbed” a few times after that.

He said he thought this might be what caused the wreck. He said he did not know why
he had a blood alcohol level of .19 percent but that it might be from cough syrup, mouth

wash or eye drops.



                 Rose Parmer testified that she was working as a nurse at the Holston

Valley Hospital emergency room when the defendant was admitted. She said that

before she draws blood, she uses alcohol to clean the skin. She said that when a “legal

blood” analysis is requested, however, the blood is drawn by laboratory technicians who

use betadine to clean the skin. Ms. Parmer stated that she did not know whether she
or a laboratory technician drew the defendant’s blood but noted that she did not draw

“legal blood.”



                 Robert Spiegle testified that he is a chemist who owns an analytical

laboratory. He said that one should never use alcohol to cleanse the skin before

performing a blood alcohol test. Upon the foregoing proof, the jury convicted the
defendant of DUI.



                 The defendant contends that the evidence is insufficient to establish that

he was under the influence of an intoxicant. He argues that (1) the blood alcohol
sample is unreliable because the defendant’s skin may have been cleansed with

alcohol before the test was administered, (2) the state did not show the reliability of the

testing procedures used to determine the defendant’s blood alcohol level, and (3) the

                                               3
“physical” indicators of intoxication were insufficient. The state contends that the

evidence is sufficient to support the conviction.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is “whether, after viewing 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 reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).




              It is unlawful for any person to drive a motor vehicle on the public roads

and highways of the state while under the influence of an intoxicant or narcotic drug.

Tenn. Code Ann. § 55-10-401(a)(1). The evidence shows that the defendant had a

blood alcohol level of .19 percent, tested positive for opiates and benzodiazepines,

smelled of alcohol, and was incoherent after the accident. The defendant argues that

the blood alcohol results are unreliable because of potential contamination; however he
makes no showing that any contamination actually occurred. His contention that his

skin may have been cleansed with alcohol before testing is unsupported by the

evidence. Officer Quillen testified that he requested a “legal blood” test, and Ms.
Parmer testified that although she could not remember who drew the defendant’s blood,

she does not draw blood for “legal blood” tests.



              The defendant contends that the state failed to prove that the testing

procedures were reliable. He argues that the state called no witnesses regarding the

drawing and subsequent testing of the blood. However, the record shows that the

defendant stipulated to the admissibility of his hospital records, which included the
results of his blood test. The defendant’s arguments regarding the reliability of the

testing procedures go to the weight and value of the evidence, a determination not for

this court but for the jury. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.

                                             4
App. 1987). The same is true for the defendant’s argument that the other indicators of

intoxication, i.e., Officer Quillen’s testimony that the defendant smelled of alcohol and

Ms. Parmer’s testimony that the defendant was incoherent, are insufficient to show
intoxication. We hold that the evidence is sufficient to support the conviction.



              In consideration of the foregoing and the record as a whole, we affirm the
judgment of conviction.



                                                 ________________________________
                                                 Joseph M. Tipton, Judge

CONCUR:


_____________________________
James Curwood W itt, Jr., Judge


_____________________________
Norma McGee Ogle, Judge




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