         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs January 22, 2003

                 STATE OF TENNESSEE v. STACY R. DOWELL

                     Appeal from the Criminal Court for Johnson County
                             No. 3953   Lynn W. Brown, Judge



                                No. E2002-01918-CCA-R3-CD
                                      February 24, 2003

The defendant, Stacy R. Dowell, appeals as of right his conviction, following a bench trial before
the Johnson County Criminal Court, for driving while his blood alcohol concentration was .10 or
greater, a Class A misdemeanor. The trial court sentenced the defendant to eleven months, twenty-
nine days with forty-eight hours to be served in the county jail and the remainder on probation. The
defendant challenges the sufficiency of the evidence relative to his blood alcohol concentration. We
affirm the trial court’s judgment.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , Jr. and
NORMA MCGEE OGLE, JJ., joined.

H. Randolph Fallin, Mountain City, Tennessee, for the appellant, Stacy R. Dowell.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Anthony Wade Clark, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        In the early morning hours of October 26, 2001, Deputy Richard Kyle Eller of the Johnson
County Sheriff’s Department was driving southbound on Highway 421 in Mountain City when he
saw the defendant’s truck and a second vehicle coming toward him in the northbound lane. Deputy
Eller testified that the speed limit was forty miles per hour and that he believed the defendant was
speeding. The defendant passed him, immediately turned left into a shopping center, and parked in
front of a Hardee’s restaurant. Deputy Eller turned around and parked beside the defendant but did
not turn on his blue lights or his siren. He said he was not planning on issuing a citation to the
defendant but wanted to talk to him.
        Deputy Eller testified that when he spoke with the defendant, he noticed the odor of alcohol
and that the defendant’s speech was slurred. He said the defendant told him that the defendant had
consumed a couple of beers. The defendant consented to a blood test at 3:10 a.m., and the laboratory
report reveals that the defendant had a blood alcohol concentration of .13 percent. Deputy Eller said
he found an open can of beer on the passenger’s side of the defendant’s truck. He said that the can
was one-quarter to one-half full and that the defendant was the only one in the truck. On cross-
examination, Deputy Eller acknowledged that the defendant properly executed a left turn into the
shopping center, had no problems parking his truck, and understood and appropriately responded to
all questions and directions. Deputy Eller did not recall whether the beer found in the defendant’s
truck was still chilled.

        Deputy Eller initially testified at the suppression hearing and at trial that he encountered the
defendant around midnight on October 26. The state recalled Deputy Eller following the defendant’s
proof, and he testified about the dispatcher’s radio log for that night. The log reflects that Deputy
Eller called in the defendant’s driver’s license number at 2:36 a.m. Officer Eller testified that he
radioed the dispatcher with the defendant’s driver’s license number within minutes of first speaking
to the defendant. He said he had the defendant perform field sobriety tests, he inventoried the
defendant’s truck, and then he took the defendant directly to the hospital. He estimated that it took
twenty to twenty-five minutes from the time he spoke with the defendant until he transported him
to the hospital. The log reveals that Officer Eller reported being en route to the emergency room at
3:03 a.m. and at the emergency room at 3:05 a.m. The laboratory report states that the defendant’s
blood was collected at 3:15 a.m.

        Nineteen-year-old Kevin Fritts testified that he had been “four wheeling” with the defendant
and others on the evening before the defendant’s arrest. He said he saw the defendant drink two
twelve-ounce cans of beer from someone’s cooler over the course of the evening. He said that after
the four wheeling, he followed the defendant in a separate car for about ten miles to a shopping
center. He said he was traveling at the speed limit and keeping up with the defendant. He said he
did not see the defendant weave or drive inappropriately.

        Jason Moody testified that he had taken his truck four wheeling with the defendant from
11:00 p.m. until around 2:00 a.m. on the night the defendant was arrested. He said that before they
went four wheeling, he saw three cans of beer in the defendant’s truck. He said he saw the defendant
drink one or two beers that night. He said that he did not think the defendant should not be driving.
He said the defendant remained in the shopping center’s parking lot in a patrol car for forty-five to
fifty minutes.

        At the conclusion of the bench trial, the trial court found that the defendant’s blood was
drawn within thirty to forty minutes of him driving his truck and that his blood alcohol concentration
was .13 percent. Thus, it convicted the defendant of driving while under the influence of an
intoxicant (DUI), specifically driving while his blood alcohol concentration was .10 or greater. See
Tenn. Code Ann. § 55-10-401(a)(2). It noted that it would have had a problem with the sufficiency
of the evidence if the defendant had been arrested at midnight with his blood not being tested until


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over three hours later. Finally, the court observed that whether the defendant was impaired at the
time he was driving was not relevant because the state was proceeding under § 55-10-401(a)(2). In
that context, it remarked:

                [I]t looks like the test has become the jury when the–when the
                legislature passed this new law. And it becomes even different on
                July the 1st that the level is decreased to .08 percent, July 1st of next
                year. And what the legislature is trying to do is to get people to not
                drink and then drive. But, the law is that this report, although
                stipulated to, is admissible. It’s reliable. And the court concludes
                that it is sufficient for a–for finding of guilt.

         The defendant summarily contends that Tenn. Code Ann. § 55-10-401(a)(2) violates his right
to a trial by jury because it substitutes a blood alcohol test result for a jury’s finding of impairment
without regard to the time lapse between the defendant’s driving and the blood test. The state
contends that the defendant has waived this issue by failing to provide either argument or citation
to the record. See T.R.A.P. 27(a)(7). It also argues that § 55-10-401(a)(2) is not unconstitutional.
We agree with the state that the defendant has failed to present any argument on the constitutionality
of § 55-10-401(a)(2). Nevertheless, we believe that viewing the defendant’s brief as a whole, he is
actually challenging the sufficiency of the evidence of his conviction. In this respect, we hold that
the evidence is sufficient and affirm the trial court’s judgment of conviction.

       The defendant’s brief contains no argument section. His entire statement of his position,
under the heading “CONCLUSION,” is as follows:

                         This case presents a very important issue for this Court. Is it
                the law of Tennessee that if a person is stopped in actual control of or
                operating a vehicle on the roads of Tennessee and his blood alcohol
                exceeds .10 no proof would be required as part of the State’s burden
                of proof to show that the blood level was over .10 when driving, no
                matter how long after said operation the sample is taken. The
                Appellant asserts that State v. Robinson, 29 S.W.2d 476 and the right
                to a trial by jury indicates otherwise.

                        The defense insists that is not the law and urge a reversal.

The appealing party’s brief “shall contain” an “argument . . . setting forth the contentions of the
appellant with respect to the issues presented, and the reasons therefor, including the reasons why
the contentions require appellate relief, with citations to authorities and appropriate references to the
record . . . relied on.” T.R.A.P. 27(a)(7). This court will treat as waived issues unsupported by
“argument, citation to authorities, or appropriate references to the record.” Tenn. R. Crim. P. 10(b).
The defendant has fallen short in providing us with any argument to review.



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         Nevertheless, we believe that a liberal reading of the entire brief reveals that the defendant
is actually arguing that the trial court did not require the state to prove that his blood alcohol content
was .10 or more at the time he was driving. In his statement of the case, he summarizes his theory
at trial: A “blood result that was secured sometime after the driving stopped was insufficient to
prove the alcohol level in Appellant’s blood was .10 or more when he was driving or in physical
control” of the truck. He asserts that because blood alcohol levels may be either rising or falling in
the time between the driving and the collection of the blood sample, the state must “show by
computed proof” how the test results correspond to the defendant’s blood alcohol content at the time
he was driving.

        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 may not reweigh
the evidence, but must presume that the trier of fact 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).

        Tenn. Code Ann. § 55-10-401(a)(2) provides in pertinent part that

                [i]t is unlawful for any person to drive or to be in physical control of
                any automobile or other motor driven vehicle on any of the public
                roads and highways of the state, or on any streets or alleys, or while
                on the premises of any shopping center, trailer park or any apartment
                house complex, or any other premises which is generally frequented
                by the public at large, while:

                ....

                        (2) The alcohol concentration in such person’s blood or breath
                is ten-hundredths of one percent (.10%) or more.

The plain language of the statute does require the state to show that the defendant’s blood alcohol
concentration was .10 or over at the time the defendant was driving.

        The defendant essentially contends that the state’s proof that his blood alcohol concentration
of .13 percent at 3:15 a.m. on the 26th does not prove beyond a reasonable doubt that his blood
alcohol concentration was .10 or more when he was driving some forty minutes earlier. In his
closing argument at trial, he emphasized the fact that the deputy found a partially consumed can of
beer in the defendant’s truck. He argued that this evidence revealed that the defendant had been
drinking alcohol while en route to the shopping center. He asserted that the alcohol he drank en
route would have continued to be absorbed into his blood stream between the time he parked and



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the time of the test, resulting in a greater blood alcohol concentration at 3:15 a.m. than at the time
he was driving.

        Viewing the evidence in the light most favorable to the state, Deputy Richard Eller and Kevin
Fritts both testified that the defendant drove his truck to a shopping center parking lot on October
26, 2001. Deputy Eller said that when he spoke with the defendant shortly after the defendant parked
by Hardee’s, he smelled the odor of alcohol. The defendant admitted to Deputy Eller that he had
consumed two beers that evening, and Deputy Eller found a partially consumed can of beer in the
defendant’s truck. Jason Moody testified that he was with the defendant from 11:00 p.m. to 2:00
a.m. and saw the defendant drink one or two beers. Deputy Eller’s testimony, the dispatcher’s log,
and the laboratory report support the trial court’s finding that the defendant’s blood was drawn
within about forty minutes of his driving. The defendant’s blood had an alcohol concentration of
.13 percent.

       With regard to the forty-minute delay between the defendant’s driving and the collecting of
the blood sample, we note the following longstanding principles:

                “The jury may use their common knowledge and experience in
                deciding whether a fact is logically deducible from the circumstances
                in evidence, or in making reasonable inferences from the evidence,
                and may test the truth and weight of the evidence by their own
                general knowledge and judgment derived from experience,
                observation, and reflection; but neither jurors nor judges when acting
                as arbiters of guilt are permitted to base their decisions on the
                existence or nonexistence of facts according to their personal beliefs
                or experiences, but only on facts established by legal and competent
                evidence or on inferences deducible from such proven facts as are
                authorized by law.”

Fairbanks v. State, 508 S.W.2d 67, 69 (Tenn. 1974) (quoting 23A C.J.S. Criminal Law § 1373); see
also State v. Nesbit, 978 S.W.2d 872, 886 (Tenn. 1998). In waiving a jury, the defendant was
acceding to the trial court’s using its common knowledge and experience in determining the facts.
In this respect, we believe the trial court, as the trier of fact, could infer that the defendant’s blood
alcohol content was at least .10 percent at the time he was driving.

        First, we question the trial court’s disregarding the defendant’s condition at the scene. An
officer’s belief that a defendant is intoxicated and a defendant’s failing field sobriety tests would be
generally relevant to the issue of blood alcohol content. See, e.g., State v. Alan Leonard Smith, No.
E2000-01891-CCA-R3-CD, Anderson County, slip op. at 6 (Tenn. Crim. App. Oct. 19, 2001)
(holding evidence of the defendant’s intoxication and a blood alcohol concentration of .17 percent
four hours later supported the inference that his blood alcohol content was .10 or greater at the time
he was driving); State v. Michael G. Waldrum, No. M1999-01924-CCA-R3-CD,Williamson County,
slip op. at 4 (Tenn. Crim. App. Dec. 8, 2000) (holding evidence of defendant’s slurred speech,


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bloodshot eyes, poor performance on field sobriety tests, and admission that he had been drinking
along with a blood alcohol concentration of .21 percent one and one-half hours after driving was
sufficient to support jury’s inference that defendant was driving with a blood alcohol content of .10
or more); State v. Lester Arnold Clouse, No. 01C01-9802-CR-00069, White County, slip op. at 7-8
(Tenn. Crim. App. Mar. 31, 1999), app. denied (Tenn. July 6, 1999) (holding evidence that defendant
showed signs of intoxication when officer arrived on scene and failed field sobriety tests along with
blood alcohol concentration of .14 percent one hour after driving was sufficient).

         The evidence reflected that the defendant had the odor of alcohol and had admitted
consuming two beers within three hours of speaking to Deputy Eller. In finding the defendant guilty,
the trial court emphasized the fact that the test reflecting a .13 percent blood alcohol concentration
occurred within forty minutes of the defendant’s driving. Our supreme court has held that in order
for breathalyzer results to be admitted without an expert, the evidence must show that “the motorist
was observed for a requisite 20 minutes prior to the test.” State v. Sensing, 843 S.W.2d 412, 416
(Tenn. 1992). The forty-minute delay in the present case is not significantly longer than the twenty
minutes the deputy would have had to spend observing the defendant for a breath test. The evidence
is sufficient to support the defendant’s conviction for DUI.

       Based upon the foregoing and the record as a whole, we affirm the trial court’s judgment of
conviction.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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