         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE
                                                         FILED
                                                         February 3, 1998
                         DECEMB ER SESSION, 1997
                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk


STATE OF TENNESSEE,               )    C.C.A. NO. 03C01-9704-CR-00161
                                  )
           Appellee,              )
                                  )    ROANE COUNTY
                                  )
V.                                )
                                  )    HON. E. EUGENE EBLEN, JUDGE
JAME S A. DAN IEL,                )
                                  )
           Appe llant.            )    (DUI)




FOR THE APPELLANT:                FOR THE APPELLEE:

CHARLES B. HILL                   JOHN KNOX WALKUP
P.O. Box 852                      Attorney General & Reporter
Kingston, TN 37763
                                  SANDY C. PATRICK
                                  Assistant Attorney General
                                  2nd Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  CHARLES E. HAWK
                                  District Attorney General

                                  DENNIS W. HUMPHREY
                                  Assistant District Attorney General
                                  P.O. Box 703
                                  Kingston, TN 37763




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
              The Defen dant, Jam es A. D aniel, was convicte d of DU I first offense

following a jury trial in the Criminal Court of Roan e Cou nty. In his app eal as of rig ht,

Defendant presents three issues: (1) the e vidence was insu fficient to sup port a

conviction for DUI; (2) his right to due process was violated when police officers

failed to obtain a blood alcohol test of D efend ant at a time w hen h e was incap able

of submitting to a breathalyzer test and had not refused to take a test to determine

his blood alcohol content; and (3) the trial court erred by not dismissing the

indictment because it was filed after expiration of the statute of limitations. After a

full review of th e issues presen ted, we a ffirm the jud gmen t of the trial cou rt.



              From the record, it is apparent that no stenographic report, or other

transcript of the evidence was available, and that Defendant’s counsel filed a

statement of the evide nce within ninety (90) days of the filing of the notice of appeal

pursuant to Rule 2 4(c) of the T ennes see Ru les of Ap pellate P rocedu re. In its brief,

the State argues that D efend ant faile d to co mply w ith all of th e prov isions of Rule

24(c) of the Tennesse e Rules of Appe llate Proce dure.            Sp ecifically, the S tate

correc tly points out that Defendant did not submit a “short and plain declaration of

the issues” intended to be presented on appeal along with notice of the filing of the

statement of evidence. In addition, the State correctly points out that the statement

of the evid ence is not pr operly certified as acc urate b y either the De fenda nt or his

counsel as requ ired by R ule 24(c) . The rec ord doe s indicate that a copy of the

statement of evidence was served upon the district attorney’s office. The district

attorney did not raise any objection as to these technical requirements of Rule 24(c)

of the Tennessee Rules of Appellate Procedure and did not submit any objections

                                            -2-
to the statement of the evidence. Under the particular circumstances of this case,

we suspend, pursuant to Rule 2 of the Tennessee Rules of Appellate Procedure, the

requirements of a declaration of the issues to be presented and certification of the

statem ent of e videnc e by D efend ant or h is coun sel.



                            S UFFICIENCY O F T HE E VIDENCE



             According to the record submitted by Defendant, on October 9, 1993,

Jeffrey W. Seiber was stopped at a traffic control light at the intersection of Roane

and Walden Streets in Harriman, Tennessee when his vehicle was struck in the rear

by a vehic le opera ted by D efenda nt. After the accident, he smelled alcohol on the

person of the Defendant and noticed that the police officer had to assist Defendant

getting into the patrol car. He observed what appeared to be a “fifth” of some type

of alcoh olic bever age in the Defe ndant’s ve hicle, even though he cou ld not iden tify

what was inside the b ottle.     The accide nt occurred next to th e Harrim an City

Hosp ital.



              Officer Chuck Moore of the Harriman Police Department arrived at the

scene of the accident at approximately 5:00 p.m. Officer Moore got the Defendant

out of the vehicle and discovered Defendant to be in such a condition that he could

not condu ct any field so briety tests. The Defendant had a sme ll of alcoh ol abo ut him

and was incoherent in his speech. Officer Moore concluded that the Defendant was

intoxicated. Defendant was not offered a breathalyzer test at th e Roa ne Co unty Ja il

because of his condition.




                                            -3-
               The Defendant testified in his own behalf and maintained that he had

not been drinking any alcoholic beverages on the day of the accident. He claimed

that his brakes had failed, and that he had had problems with the brakes on this

vehicle prior to the accident. He claimed that his hands hit the windshield, one

elbow and his k nees h it the dash , and his head hit the steering wheel. Defendant

remembered nothin g else until he again became conscious in the drunk tank of the

county jail.   Defendant testified that the “fifth” liquor bottle actually contained

antifreeze. Defendant admitted that he had be en convicted o f felonies several years

prior to the w reck.



               Ray Hawk, a mechanic in Harriman testified that he remembered the

Defendant and his vehicle and recalled that the Defendant had problems with the

brakes on this car. Hawk attempted to fix the brakes but he was not sure if his work

had been s uccess ful. Brian Kittrell testified that he was with Defendant most of the

day of the accident. Defendant had left Kittrell’s house just shortly before the

acciden t. Kittrell testified that the Defendant did not drink any alcoholic beverages

and wa s sobe r when h e left Kittrell’s ho me.



               When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime b eyond a reason able do ubt. Jackson v. V irginia, 443 U.S. 307, 319

(1979). Questions concerning the credibility of the witnesses, the weight and value

to be give n the e vidence, as well as all factual issues ra ised by the eviden ce, are

resolved by the trier of fac t, not this cou rt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may th is court

                                           -4-
reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



              A jury verdict approved by the trial judg e accre dits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). O n appe al, the State is entitled to the strongest legitimate view of the

evidence and all inferences therefro m. Cabbage, 571 S.W.2d at 835. Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the

evidence is insufficient to support the verdic t returned by the trier of fa ct. State v.

Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493 S.W .2d at 476 .



              The Defendant correctly points out that there was no proof of him failing

any field sobriety tests, or of his bloo d alcoho l content. H e also no tes that the State

failed to produce the “fifth” liquor bottle during its case in chief. Defendant argues

that in light of this and the fact that he submitted proof contrary to the State ’s theory,

that there is insufficient evidence to support the conviction. We disagree.



              The offense of driving under the influence of an intoxicant can be

established beyond a reason able do ubt by circu mstan tial evidenc e.            State v.

Harless, 607 S.W.2d 492, 493-94 (Tenn. Crim. App. 1980). Likewise, it is not

necessa ry for the State to subm it proof of a b lood or ch emica l breath tes t to prove

the blood alcohol conte nt of the Defe ndan t in order to su stain a co nviction. State v.

Gilbert, 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988). Furthermore, even a non-

expert witness who smells the odor of an intoxicant upon a defendant who has been

operating a vehicle on the public highways can give opinion evidence as to the

                                            -5-
intoxication of the defe ndant. See Hops on v. State , 201 Tenn. 337, 299 S.W.2d 11,

13 (Te nn. 195 7). In the light most favorable to the State, the evidence shows that

in an intoxicated condition, and in possession of an alcoholic beverage in his vehicle,

the Defendant drove his car into the rear of the victim’s automobile which was

stoppe d in traffic on a public stre et. This iss ue is witho ut merit.



                              V IOLATION O F D UE P ROCESS



              The Defe ndan t argue s that h is cons titutiona l rights to due process of

law were v iolated by the H arrima n City P olice because he was not taken to the

hospital which was appro ximately thirty-five (35) yards away from the scene of the

accident to have a blood alcohol test performed. The record on appeal reflects that

a breathalyzer test was not given to Defendant because the officer concluded that

Defendant was in no condition to subm it to the test. Furthermore, the officer testified

that he did not want to take the De fendan t to the hospital for a blood alcohol test

because it would result in “too mu ch paperw ork.”



              Defendant does not argue that he had a statutory right to a blood

alcohol test pursuant to T ennesse e Code A nnotated se ction 55-10-410(e).

Defendant would not be entitled to a test under the provisions of this statute because

the State h ad no t procu red a s amp le of his blood for testing. See Tenn. Code Ann.

§ 55-10 -410(a).



              Regarding Defe ndan t’s due proce ss claim , this Co urt has previo usly

cited Scarbo rough v. S tate, 261 So.2d 475 (Miss. 1972) with approval as to the

conditions which must be shown to prove a deprivation of due process when a

                                            -6-
defendant is not allo wed to subm it to a blo od alcohol test. In State v. Bernell B.

Lawson, No. 63, C umbe rland Co unty (Tenn . Crim. A pp., Knoxville, May 23, 1 991),

this Court noted the four conditions as follows:

       (1)   A timely request for testing at defendant’s own expense;

       (2)   The defendant’s cooperation to the extent that officers may
             conduct the examination safely for all concerned;

       (3)   The immediate availability of test facilities and personne l at a
             reasonably accessible location; and

       (4)   Refusal of the officers to honor the request for testing by the
             defendant, counsel, or other representatives.


Id. at 3.



             In the case sub judice, there is nothing in the record to indicate that

Defendant made a request for testing a t his own expen se, or that the police o fficers

refused to hono r a reque st for blood alcohol te sting.



             The record does not reflect that Defendant’s right to due process was

violated. Furtherm ore, the court in Lawson noted that even if a request for blood

alcohol testing is den ied, a re med y would not ne cess arily be dismissal of the charge.

Id. at 4. Our Cou rt surmised that suppression of the results of a blood alcohol test

by the Sta te would probab ly satisfy due process considerations in most instances.

Id. As in Lawson, there was no evidence of bloo d alco hol tes ting by th e State in

Defen dant’s ca se, and therefore this issue is without m erit.



                               S TATUTE O F L IMITATIONS




                                           -7-
              The Defendant argues that the ind ictmen t charging him with DUI shows

on its face that it wa s brou ght ou tside th e app licable one year statute of limitations

for misdemeanor charges. A pro se motion was filed by Defendant during a period

of time w hen h e was repres ented by cou nsel, w hich ca n, at be st, be lo osely

construed as a motion to dismiss based upon expiration of the statute of limitations.

Howeve r, the statem ent of evide nce filed b y the De fendan t reflects that Defendant

did not pres ent a motion to dismiss the indictment on the statute of limitations issue

until after the trial had begun and the jury ha d been selected . In a crimin al trial, a

defense based upon e xpiration of th e statute of limitations must be raised prior to

trial or it is untime ly. State v. H ill, 623 S.W .2d 293, 295 (Tenn. Crim . App. 1981 );

Tenn. R. Crim. P. 12(b). The term “prior to trial” means sometime earlier than the

day of trial. State v. Auco in, 756 S.W.2d 705, 709 (T enn. C rim. App . 1988); State

v. Robe rts, 755 S.W .2d 833 , 837 (Tenn. Crim. A pp. 198 8); State v. Kinner, 701

S.W.2d 224, 227 (Tenn. Crim. App. 19 85). The motion was therefore untimely, and

this issue is without m erit.


              The judgment of the trial court is accordingly affirmed.


                                   ____________________________________
                                   THOMAS T. W OODALL, Judge

CONCUR:


___________________________________
DAVID H. WELLES , Judge

___________________________________
DAVID G. HAYES, Judge




                                            -8-
