           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                         MAY 1999 SESSION
                                                FILED
                                                   July 22, 1999

                                                Cecil Crowson, Jr.
                                               Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 02C01-9811-CC-00342
           Appellee,            )
                                )    McNAIRY COUNTY
VS.                             )
                                )    HON. JON KERRY BLACKWOOD,
WANDA JOYCE SMITH,              )    JUDGE
                                )
           Appellant.           )    (Driving Under the Influence)



FOR THE APPELLANT:                   FOR THE APPELLEE:


ANGELA R. SCOTT                      PAUL G. SUMMERS
P.O. Box 408                         Attorney General & Reporter
Henderson, TN 38340
                                     J. ROSS DYER
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     ELIZABETH T. RICE
                                     District Attorney General

                                     ED NEAL McDANIEL
                                            -and-
                                     JERRY NORWOOD
                                     Asst. District Attorneys General
                                     302 Market St.
                                     Somerville, TN 38068



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              A jury found the defendant guilty of driving under the influence (DUI). The

defendant filed a motion for new trial, which was denied. She now appeals, arguing that

the trial court erred in denying her motion to suppress because the arresting officer

stopped her vehicle with neither probable cause nor reasonable suspicion. She also

argues that the trial court abused its discretion by admitting into evidence her blood

alcohol test results because the State failed to establish chain of custody and exclude the

possibility of tampering. Finding no merit in these arguments, we affirm.



              The evidence shows as follows. At the motion to suppress hearing and at

trial, Trooper Jimmy Lambert testified that on the evening of September 28, 1997, he

parked his patrol car on the side of the road to run stationary radar. A civilian vehicle

stopped, and the driver complained that a red Ford Ranger was driving recklessly. He

then observed a red Ford Ranger pass, and he pulled onto the road to investigate.

According to Trooper Lambert, the red Ford Ranger was moving slowly, approximately

fifteen miles per hour under the forty-five miles per hour speed limit. When he observed

the Ranger cross the yellow center line and then cross the white fog line, he decided to

initiate a stop. He activated his lights, but the Ranger did not stop. After following the

Ranger for approximately three-quarters of a mile, Trooper Lambert activated his siren.

The Ranger traveled an additional one-half mile before it stopped.



              Trooper Lambert identified the defendant as the driver of the Ranger.

According to Trooper Lambert, the defendant smelled strongly of an intoxicated beverage

and her eyes were watery and red. W hen asked if she had been drinking, the defendant

admitted, “A little bit.” Trooper Lambert asked the defendant to exit the vehicle, and when

she did, she staggered and had difficulty walking. When the defendant could not perform


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any roadside sobriety tests, Trooper Lambert arrested her for DUI. Trooper Lambert

testified that in his opinion, the defendant was intoxicated.



                Trooper Lambert asked the defendant to submit to a blood alcohol test, and

the defendant agreed. He transported the defendant to the emergency room of a local

hospital to have her blood drawn. He testified that after the sample was drawn, it was

given to him and he immediately sealed it and mailed it by U.S. postal mail to the

Tennessee Bureau of Investigation (TBI) crime lab in Jackson.



                TBI Special Agent Robert Marshall testified he conducted the blood alcohol

test in this case, which yielded a result of .22 grams per cent of ethyl alcohol. He testified

that when blood samples arrive at the laboratory, they are assigned an identification

number and placed in a secure refrigerator. According to Agent Marshall, when he

retrieved the blood sample kit in this case from the secure, locked refrigerator, it was

sealed with tamper-resistant tape. The vial was labeled with the assigned identification

number, the defendant’s name, the time and date of collection, and two sets of initials.

The paperwork accompanying the vial mirrored much of this information, indicating that

the sample was collected by Jane Goodman, M.T.,1 on September 28, 1997, in McNairy

County and sent to the laboratory by Trooper Lambert. The paperwork contained no

information regarding whether Ms. Goodman was licensed or trained to collect blood

samples or the procedure she used to collect the sample in this case. Agent Marshall

also testified he did not receive a submission form signed by the defendant indicating that

the blood was hers; according to Agent Marshall, it is the trooper’s responsibility to

complete such paperwork. Agent Marshall acknowledged that wiping alcohol across the

area from where blood is to be drawn might compromise the integrity of the blood sample

        1
          "M.T.” is a common abbreviation for a medical technologist, a member of the medical
profession who gene rally performs laboratory tests, often under the supervision of laboratory managers
and pa thologists. The Barnhart Abb reviations Dictionary 169 ( Rob ert K. Barn hart e d., Jo hn W iley &
Sons, In c. 1995 ); Careers in Focus: Medical Technicians 102-03 (Ferguson Publ’g Co. 1998).

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and the test results, for which reason non-alcohol swabs are generally recommended.



              The defendant testified that before her blood was drawn at the hospital, her

arm was swabbed with a white patch that smelled of alcohol. She also admitted that in

the hours preceding her arrest, she was at a bar where she consumed at least six beers

and “ate part of a bag of chips.”



              The defendant first argues that the trial court erred in denying her motion

to suppress because Trooper Lambert had neither probable cause nor reasonable

suspicion to stop her vehicle. She complains that she posed no threat of violence and

that Trooper Lambert based his stop upon an anonymous tip of reckless driving, a

misdemeanor, without information regarding the credibility of the informant or the basis

of the informant’s knowledge. She also complains that the stop violated T.C.A. § 40-7-

103, which she claims prohibits stops based solely upon anonymous tips of minor traffic

violations, because Trooper Lambert had no independent basis for stopping her vehicle.



              In support of her argument, the defendant relies solely upon the uniform

citation completed by Trooper Lambert, which states the defendant “was stopped after

a complaint of reckless driving” and does not mention any other basis for the stop.

Trooper Lambert testified at the suppression hearing, however, that the defendant was

traveling between thirty and thirty-five miles per hour in a forty-five mile per hour zone,

which gave him “reason for concern.” He also testified at trial it was only after he

observed the defendant’s vehicle traveling slowly and crossing the yellow center line and

white fog line that he decided to initiate the stop. State v. Henning, 975 S.W.2d 290, 299

(Tenn. 1998)(holding that “in evaluating the correctness of a trial court's ruling on a

pretrial motion to suppress, appellate courts may consider the proof adduced both at the

suppression hearing and at trial”). Thus, contrary to the defendant’s contentions, these


                                            4
personal observations provided Trooper Lambert with grounds independent from the

anonymous tip upon which to form reasonable suspicion to justify an investigatory stop

of the defendant’s vehicle. See State v. Carl Seaward Allen, No. 01C01-9707-CC-00272,

Robertson County (Tenn. Crim. App. filed August 7, 1998, at Nashville)(finding

reasonable suspicion where an officer observed the defendant driver crossing the fog line

at least twice while driving a van with Texas license plates around midnight); see also

Terry v. Ohio, 392 U.S. 1, 21 (1968) (holding that an investigatory stop of a motor vehicle

is justified when the officer has a reasonable suspicion, supported by specific and

articulable facts, that a criminal offense has been or is about to be committed); Griffin v.

State, 604 S.W.2d 40, 42 (Tenn. 1980)(same). Thus, the defendant’s contentions lack

merit.



              The defendant also argues that the trial court abused its discretion in

allowing the results of the blood alcohol test into evidence. The defendant complains the

State failed to provide proof verifying the identification of Ms. Goodman, the individual

who drew her blood, and the procedure she used. She suggests that chain of custody

cannot be established because Agent Marshall did not receive a form signed by the

defendant acknowledging that the blood sample was hers, and she claims that the State

failed to prove the blood sample arrived at the TBI laboratory in an unaltered state.



              The decision to admit or exclude the result of a blood alcohol test lies within

the sound discretion of the trial court and will not be disturbed absent abuse of discretion.

See State v. Jim Smith, No. 03C01-9312-CR-00398, Knox County (Tenn. Crim. App. filed

July 11, 1994, at Knoxville); see also State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

We agree that chain of custody would have been better proven by a witness’s testimony

that the blood sample taken from the defendant in the hospital was the same blood

sample packaged by Trooper Lambert. Even so, any error in admitting the blood alcohol


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test results in this case was harmless beyond a reasonable doubt because the record

contains other competent evidence, including the defendant’s own admissions at trial,

sufficient to sustain the jury’s determination that the defendant was driving while under

the influence. Tenn. R. Crim. P. 52(a); see State v. Stowers, 649 S.W.2d 607, 609

(Tenn. Crim. App. 1983).



             Finding no merit to the defendant’s arguments, the trial court’s judgment is

affirmed.



                                                _______________________________
                                                JOHN H. PEAY, Judge



CONCUR:



______________________________
JOE G. RILEY, Judge



______________________________
THOMAS T. W OODALL, Judge




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