State v Carter.pdf - State v Carter 889 S.W.2d 231(1994 KeyCite Yellow Flag Negative Treatment Distinguished by State v Butler Tenn 889 S.W.2d 231 Court

State v Carter.pdf - State v Carter 889 S.W.2d 231(1994...

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State v. Carter, 889 S.W.2d 231 (1994) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by State v. Butler, Tenn., June 24, 2003 889 S.W.2d 231 Court of Criminal Appeals of Tennessee, at Knoxville. STATE of Tennessee, Appellee, v. Marilyn R. CARTER, Appellant. June 17, 1994. | No Permission to Appeal Applied for to the Supreme Court. Defendant was convicted in the Circuit Court, Hamblen County, Ben K. Wexler , J., of driving under influence (DUI). Defendant appealed. The Court of Criminal Appeals, Walter C. Kurtz, Special Judge, held that defendant did not have “physical control” of her vehicle. Conviction reversed, case dismissed. Attorneys and Law Firms *232 Denise S. Terry, Morristown, for appellant. Sharon S. Selby, Asst. Atty. Gen., Crim. Justice Div., Nashville, for State of Tenn. OPINION WALTER C. KURTZ, Special Judge. * The defendant, Marilyn Carter, appeals as of right from her conviction for driving under the influence. The defendant received a sentence of eleven (11) months and twenty nine (29) days to be suspended after service of sixty (60) days, along with a Five Hundred Dollar ($500.00) fine. Two issues are presented for review: (1) Did the trial court properly instruct the jury, and (2) was the evidence sufficient to support the conviction? We reverse on the grounds that the evidence is insufficient to support the conviction. The reversal on the sufficiency of the evidence pretermits the jury instruction issue. The defendant was arrested on March 23, 1993. Officer James Cobble testified that he was dispatched to Dr. Crossley's parking lot to investigate a potentially intoxicated driver. When Officer Cobble arrived, he observed the defendant attempting to start her vehicle by turning the ignition switch. Officer Cobble did not hear the engine start, did not observe the defendant driving the vehicle, and did not check to see if the vehicle's engine was warm. Upon stepping out of the vehicle, the defendant was unsteady on her feet. She had slurred speech, appeared confused and shaky; and her pupils were dilated. Officer Cobble asked the defendant if she had been drinking or taking any medication. The defendant replied that she had not been drinking but was taking prescription drugs. Officer Cobble then gave the defendant a horizontal gaze nystagmus test, which she passed. Neither Officer Cobble nor Officer Todd Davidson gave the defendant any further field sobriety tests because they did not believe the defendant could perform them. After placing the defendant under arrest, Officer Cobble asked the defendant to consent to a blood test. The defendant signed the consent form, and blood was subsequently drawn. Several substances were found in the defendant's blood system: caffeine, meprobamate, carisoprodol, fluoxetine, and chlor-trimeton.

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