         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 15, 2005 Session

             STATE OF TENNESSEE v. GARY DARRELL DICKEY

                  Direct Appeal from the Circuit Court for McNairy County
                            No. 1804     Weber McCraw, Judge



                  No. W2005-00722-CCA-R3-CD - Filed December 22, 2005


Following a bench trial, the defendant was convicted of driving under the influence (DUI) per se.
See Tenn. Code Ann. § 55-10-401(a)(2). On appeal, the defendant contends: (1) the trial court erred
in admitting the blood alcohol test because the test was administered almost three hours after the
event of driving thereby rendering the test results unreliable; (2) this court should establish a bright
line rule regarding what is a reasonable time between the event of driving and subsequent withdrawal
of blood from the accused; (3) the trial court erred in denying his motion for judgment of acquittal;
(4) the evidence was insufficient to support his conviction. After review of the record and the
parties’ briefs, we affirm the judgment of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and NORMA
MCGEE OGLE, JJ., joined.

Terry Abernathy, Selmer, Tennessee, for the appellant, Gary Darrell Dickey.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Cameron Williams, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                   FACTUAL BACKGROUND

        The following evidence was presented at the bench trial. On March 2, 2003, at 12:31 a.m.,
State Trooper Kevin Curtis was called to investigate an accident in McNairy County. He arrived at
the scene of the accident around 1:00 a.m. Upon investigation, he determined that the defendant was
the driver of the vehicle involved in the accident, and the defendant had been transported to a
hospital in Madison County for treatment of his injuries. Having smelled a strong odor of alcohol
in the vehicle, Trooper Curtis proceeded to the hospital and, around 2:30 a.m., spoke to the
defendant. The defendant acknowledged that he was the driver of the vehicle involved in the
accident, and that he had consumed about six beers while at a bar. Trooper Curtis noticed that the
defendant smelled of alcohol and his speech was lethargic. Trooper Curtis requested that the
defendant submit to a blood alcohol test and the defendant consented to the withdrawal of blood at
approximately 3:05 a.m. The defendant was subsequently placed under arrest. The results of the
test indicated that the defendant’s blood alcohol content was .14 percent.

                                                      ANALYSIS

        At the onset of our review, we note that while the defendant presents four issues for review,
he makes only one argument in his brief. Relying on State v. Greenwood, 115 S.W.3d 527 (Tenn.
Crim. App. 2003), he asserts that “[t]he results of the blood-alcohol analysis conducted on the blood
sample taken from the Defendant should not have been admitted into evidence in this case because
an unreasonable length of time expired between the alleged event of driving and the collection of
blood from the Defendant, and that such unreasonable period of time patently renders the results of
such testing unreliable.” Because the substance of the defendant’s argument relates to the
admissibility and sufficiency of the blood alcohol test, we will review it as such.

                                                    I. Admissibility

        With respect to the admissibility of the blood alcohol test evidence, we discern no error. A
trial court’s decision as to the admissibility of evidence will be reversed only upon a showing of
abuse of discretion. See State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003); State v. James, 81
S.W.3d 751, 759 (Tenn. 2002). When attempting to exclude otherwise admissible and relevant
evidence, the individual seeking exclusion bears a “significant burden of persuasion.” James, 81
S.W.3d at 757-58.

        Pursuant to Tennessee Code Annotated section 55-10-406, an otherwise lawfully obtained
blood alcohol test is admitted unless the defendant expressly refuses to submit to testing, or the
defendant does not consent to the release of the test results if the defendant was unconscious or
incapable of consenting at the time the blood sample was drawn. See Tenn. Code Ann. § 55-10-406.
See also State v. Huskins, 989 S.W.2d 735, 738 (Tenn. Crim. App. 1998).1 Here, the defendant does
not argue that the state failed to meet any prerequisites for the admission of the blood alcohol test.
Instead, the defendant requests that this court establish a bright line rule regarding what is a
reasonable time between the event of driving and subsequent withdrawal of blood from the
defendant. In State v. Greenwood, we declined to formulate such a bright line rule, though we
acknowledged that the withdrawal of blood must be administered within a “reasonable time” after
the event of driving. Greenwood, 115 S.W.3d at 533. Looking at the record before us, it is

         1
            As a caveat, we note that effective July 1, 2005, approximately five months after the defendant’s conviction,
the legislature rewrote subsection (a) to include an additional prerequisite to the admission of a blood alcohol test. The
statutory language plainly states that “[f]or the results of such test or tests to be admissible as evidence, it must first be
established that all tests administered were administered to the [accused] within two (2) hours following such person’s
arrest or initial detention.” Tenn. Code Ann. § 55-10-406(a)(1) (Supp. 2005).

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undisputed that the defendant voluntarily submitted to the blood alcohol test. As such, we are
satisfied that the trial court properly admitted the test.

                                           II. Sufficiency

       The defendant also challenges the sufficiency of the convicting evidence, arguing that the
evidence was insufficient to establish beyond a reasonable doubt that he was driving with a blood
alcohol content of .08 percent or more because the blood alcohol test was administered almost three
hours after the alleged event of driving, thereby rendering the test results unreliable.

        Our review begins with the well-established rule that once a guilty verdict is rendered, the
defendant’s presumption of innocence is removed and replaced with a presumption of guilt. State
v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the
burden of demonstrating to this court why the evidence will not support the guilty verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). To meet this burden, the defendant must establish that no “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 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In
contrast, a guilty verdict by the trier of fact accredits the testimony of the state’s witnesses and
resolves all conflicts in the evidence in favor of the state’s theory. See State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). The state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn from that evidence. Carruthers, 35 S.W.3d at 558.
Questions concerning the credibility of the witnesses, conflicts in trial testimony, the weight and
value to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. Bland, 958 S.W.2d at 659.

        Turning to the defendant’s sufficiency challenge, we initially note that Greenwood guides
our analysis. In Greenwood, this court determined that the state was not required to offer
extrapolation evidence when prosecuting under Tennessee’s DUI statutes. Greenwood, 115 S.W.3d
at 532. To clarify, extrapolation is the use of scientific evidence to relate a DUI defendant’s blood
alcohol level at the time of the testing back to the time of the operation of the vehicle. Id. at 531.
Adopting the majority position, this court recognized that the difficulties inherent in extrapolation
would place an impossible burden on the state. Id. at 532. We stated:

       Even if we assume extrapolation evidence can be sufficiently reliable, the necessary
       variables may not be within the knowledge of the state and are singularly within the
       knowledge of the defendant; thus, the state will be unable to acquire the necessary
       information. For example, only the defendant may know when and how much he or
       she last ate, as well as when, how much, and how fast he or she last consumed
       alcohol. In short, the necessary extrapolation evidence could only be obtained with
       reliable information furnished by the defendant.

       Id.


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        Notwithstanding our conclusion that extrapolation evidence is not required in a DUI
prosecution, we noted that the defendant was free to introduce evidence contesting the reliability of
the blood alcohol test results. Id. We also noted that “evidence of the defendant’s physical condition
at the time of arrest or at the time of administration of the test is relevant to the issue of blood
alcohol content.” Id. However, we emphasized that “a proper blood alcohol test administered at a
reasonable time after the defendant has been driving . . . constitutes circumstantial evidence upon
which the trier of fact may, but is not required to, convict the defendant of DUI.” Id. at 532-33.
Therefore, “[a]ny delay between driving and testing may be considered by the trier of fact as to the
weight to be given the test.” Id. at 533 (emphasis added).

        As previously noted, the defendant asks this court to determine when a lapse of time between
driving and testing for alcohol intoxication becomes so great as to prevent a rational trier of fact from
finding guilt. As in Greenwood, we decline to formulate a bright line rule.2 See id. Instead, based
upon review of the evidence in this case, we conclude that the evidence proffered by the state
supports the defendant’s DUI conviction. Here, nothing in the record suggests that the blood alcohol
test was unreliable, or that the lapse of time between the event of driving and the blood alcohol
testing was unreasonable. The evidence presented at trial reflects that around 1:00 a.m., Trooper
Curtis investigated an accident. During the course of this investigation, he discovered that the
defendant was the driver of the vehicle involved in the accident, and the defendant had been
transported to a hospital in another county for treatment of his injuries. Trooper Curtis also smelled
alcohol in the defendant’s vehicle. Therefore, Trooper Curtis elected to drive to the hospital to speak
with the defendant. Around 2:30 a.m., Trooper Curtis spoke with the defendant at the hospital.
During this conversation, the defendant admitted that he was the driver of the vehicle involved in
the accident. He also admitted that he had consumed about six beers. In addition, Trooper Curtis
noted that the defendant smelled of alcohol. At approximately 3:00 a.m., the defendant consented
to a blood alcohol test, which indicated that his blood alcohol content was .14 percent. Accordingly,
the evidence was sufficient for the trier of fact to find the defendant guilty of DUI per se beyond a
reasonable doubt.

                                                  CONCLUSION

         Based upon the foregoing reasoning and authorities, we affirm the judgment of the trial court.



         2
            W e note that Tennessee Code Annotated section 55-10-406(a)(1), as amended in 2005, does not change our
analysis of this case. In this case, the defendant asks us to determine when the lapse of time between the event of driving
and the blood alcohol testing becomes so unreasonable as to render the results of the testing unreliable and thus
insufficient. The relevant language of section 55-10-406(a) indicates that a blood alcohol test is inadmissible if a lapse
of time of two hours or more occurs between the initial arrest or detention and the blood alcohol testing. In this case,
the record reflects that the blood alcohol test was administered within two hours following the defendant’s initial
detention.




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       ___________________________________
      J.C. McLIN, JUDGE




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