        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 20, 2009

               STATE OF TENNESSEE v. DONALD LOCKHART

              Direct Appeal from the Criminal Court for Loudon County
                        No. 11318 E. Eugene Elben, Judge




                 No. E2008-02046-CCA-R3-CD - Filed March 24, 2010




J AMES C URWOOD W ITT, J R., J., concurring.

               Although concurring in the majority opinion, I express concern about whether
the certified question is dispositive of the case. Specifically, I question whether the stop of
the defendant’s vehicle yielded any evidence that was necessary to the State’s proving the
defendant guilty of DUI.

               This court is not bound by the determination and agreement of the trial court,
a defendant, and the State that a certified question of law is dispositive of the case. State v.
Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003). “An issue is dispositive when
this court must either affirm the judgment or reverse and dismiss. An issue is never
dispositive when we might reverse and remand.” State v. Wilkes, 684 S.W.2d 663, 667
(Tenn. Crim. App. 1984). The availability of evidence that would establish the charged
offense without the evidence challenged by a defendant in a certified question of law renders
the certified question non-dispositive. State v. Jared C. Brown, No. M2004-02101-CCA-
R3-CD (Tenn. Crim. App., Nashville, Aug. 30, 2005) (“In other words, the State had proof
of the marijuana offense prior to the search of the appellant’s home. Thus, the appellant’s
question is not dispositive of his case.), perm. app. denied (Tenn. 2006).

               The defendant’s intoxication could have been effectively established by Lt.
Tennell’s testimony about observing the defendant in an impaired condition just minutes
before the second officer stopped the defendant’s vehicle. The second officer testified that
he saw “Mr. Lockhart operating his vehicle.” The statement was not explained. If the officer
meant that he could identify the defendant as the man he saw driving the vehicle before he
stopped it, thereby establishing the defendant’s driving on a public, the elements of DUI
would be established without any evidence that may have emanated from the stop. In that
event, any evidence gained from the stop would not have been dispositive. The problem here
is that the officer may have meant that he could identify the defendant as the driver based
upon observing him after the stop.

              I cannot tell what the officer meant, and for that reason, I concur in the majority
opinion.




                                                    JAMES CURWOOD WITT, JR., JUDGE




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