          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                      FEBRUARY SESSION, 1997        FILED
                                                    July 31, 1997

                                               Cecil W. Crowson
STATE OF TENNESSEE,         )
                                             Appellate Court Clerk
                            )   No. 01C01-9606-CC-00247
      Appellee              )
                            )   PUTNAM COUNTY
vs.                         )
                            )   Hon. JOHN MADDUX, Judge
SARAH K. MADEWELL,          )
                            )   (DUI, Second Offense)
      Appellant             )



For the Appellant:              For the Appellee:

H. MARSHALL JUDD                CHARLES W. BURSON
Assistant Public Defender       Attorney General and Reporter
215 Reagan Street
Cookeville, TN 38501            GEORGIA BLYTHE FELNER
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM EDWARD GIBSON
                                District Attorney General

                                 ANTHONY J. CRAIGHEAD
                                Asst. District Attorney General
                                145 S. Jefferson Avenue
                                Cookeville, TN 38501




OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                         OPINION



      The appellant, Sarah K. Madewell, appeals as of right from her conviction

for driving while under the influence, second offense. The appellant’s sole issue

is whether the evidence presented at her jury trial in the Putnam County Criminal

Court was sufficient as a matter of law to support her conviction.



      After reviewing the record, we affirm the trial court’s judgment pursuant to

Rule 20, Tenn. Ct. Crim. App. R.



      The appellant, then a waitress at a restaurant in Cookeville, left work at

approximately 1:30 a.m. on the morning of February 19, 1995. She then drove

to the Five Oaks Club which is located in White County to socialize with friends.

The appellant testified that, between 2 a.m. and 3:30 a.m., she consumed two

beers. She then left to return to her home in Baxter. Apparently, missing her

turn, the appellant found herself in Algood. Detective Allen of the Algood Police

Department observed the appellant make a “real wide turn.” The officer followed

the appellant for approximately one-half mile. During that time, he observed the

appellant cross the double yellow line on the roadway about eight or nine times.

Once she swerved completely onto the opposite side of the roadway. Upon

reaching the parking lot of a supermarket, the officer proceeded to stop the

appellant’s vehicle. As he approached her car, he was able to detect a strong

odor of alcohol from within. Detective Allen noticed that she slurred her speech

and her eyes were “glassy.” The appellant admitted that she had consumed two

beers. He asked her to take three field sobriety tests; she failed two and refused

to perform one stating that she had a back injury which prevented her from

standing on one foot. The appellant was arrested and transported to the Putnam

County Jail. When the two arrived at the jail, the officer explained the implied

consent law to the appellant. She then signed the implied consent form and took


                                         2
a blood alcohol test. The Intoximeter 3000 failed to perform properly during the

first three attempts, registering a .00. On the fourth attempt, at 5:16 a.m., the

appellant’s blood alcohol level registered as .10 per cent.



       Following her conviction, the trial court imposed a sentence of 11 months

and 29 days with all time suspended except for sixty days in the county jail. In

addition, the appellant was fined $500 plus court costs.



       When reviewing a trial court’s judgment, the appellate court will not disturb

a verdict of guilt unless the facts of the record and inferences which may be

drawn from it are insufficient as a matter of law for a rational trier of fact to find

the defendant guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v.

Tuggle, 639 S.W.2d 913,914 (Tenn. 1982). In other words, this court will not

reevaluate or reweigh the evidence brought out at trial. It is presumed that the

judge or 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); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Since a verdict of

guilt removes the presumption of a defendant’s innocence and replaces it with a

presumption of guilt, the defendant has the burden of proof on the sufficiency of

the evidence at the appellate level. Grace, 493 S.W.2d at 476.



       The elements of driving under the influence are: (1) driving or being in

physical control of a motor vehicle (2) upon a public thoroughfare while (3) under

the influence of an intoxicant or drug. Tenn. Code Ann. § 55-10-401 (1993 June

16, 1997 Repl.); State v. Ray, 563 S.W.2d 454, 459 (Tenn. Crim. App. 1988).

The offense of drunk driving may be established by circumstantial evidence.

State v. Gilbert, 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988). In this case, the

appellant challenges only the finding that she was under the influence of an


                                           3
intoxicant at the time of her arrest.   Based upon careful consideration of the

evidence, the jury found that the appellant was under the influence of alcohol.

We agree. The evidence in the record before us amply supports the appellant’s

conviction for driving under the influence.



       In conclusion, pursuant to Rule 20, Tenn. Ct. Crim. App. R., we hold that

the evidence is sufficient to find the appellant guilty beyond a reasonable doubt,

and we, therefore, affirm the trial court’s judgment.




                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



________________________________
GARY R. WADE, Judge


________________________________
CURWOOD WITT, Judge




                                           4
