State v. Kelly A. Hancock

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1999 May 12, 1999

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804-CC-00191 ) Appellee, ) ) WILLIAMSON COUNTY V. ) ) ) HON. DONALD P. HARRIS, JUDGE KELLY A. HANCOCK, ) ) Appe llant. ) (DUI, FIRS T OFF ENSE )

FOR THE APPELLANT: FOR THE APPELLEE:

ERIC L. DAVIS JOHN KNOX WALKUP 317 M ain Stree t Attorney General & Reporter Franklin, TN 37064 KIM R. HELPER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

RONALD L. DAVIS District Attorney General

SHARON E. TYLER Assistant District Attorney General 481 East Main Street Hohenwald, TN 38462

OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE

OPINION The Defendant, Kelly A. Hancock, appeals as of right from her convic tion in

the Williamson County Circuit Court. Defendant was indicted for the Class A misdemeanor offense of DUI, first offense, committed on February 20, 1997. Defendant filed a motion to suppress the results of the State’s ethyl alcohol test of Defe ndan t’s blood procured on February 21, 1997. The trial court denied the motion following a hearing. Defendant was found guilty following a jury trial. In her ap peal, the Defendant presents the following issues:

1) Whether the trial court e rred in de nying D efenda nt’s motio n to suppress the ethyl alcohol test results of Def enda nt’s blood based upon the State’s failur e to com ply with the re quirem ents of Tennessee Code Annotated section 55-10-406;

2) Whether the trial court erred in allowing the State to q uestion its forens ic toxicologist regarding the disposition of Defendant’s blood sample to Quest Diagnostic Laboratories for independent testing;

3) W hether the trial court erred in permitting the State to cross- examine the De fenda nt con cernin g the D efend ant’s Motion to Pres erve Blood Sample for testing filed on April 30, 1997; and

4) Whether the evidence at trial faile d to es tablish the De fenda nt’s guilt beyon d a reas onable doubt.

For the reaso ns sta ted be low, we revers e and rema nd for a new tria l.

At the hearing on Defendant’s motion to suppress, the Defendant testified that she was in volved in an automob ile accident on H illsboro Road in W illiamson Cou nty, Tennessee. Defendant was driving home when another car crossed the center line and struck her van. As a result of the accident, Defendant’s air bag inflated and her driver’s side door w as jam med . A pas sing m otorist s toppe d at the scen e and told Defendant he had notified the police. Defendant telephoned Randy Wilkerson, her date that evening, to advise him of her accident and asked him to come to the

-2-scene. She stated she was also concerned about her four (4) children at home alone.

After the police arrived, she explained to them that she had been hit by the other vehicle. Mo st of the po lice officers w ent to the other vehicle driven by Mabel Garrett. Because she was injured Defendant went to an ambulance which had arrived at the sce ne. How ever, she refused to go to the hospital in the ambulance because she thought she was alright and had already called Mr. Wilkerson to pick her up. The police questioned Defendant regarding her consumption of alcohol and she initially responded that she had not been drinking but had been to a co ncert in downtown Nashville. Defendant then admitted that she had consumed one (1) beer during dinner and two (2) beers while at the concert. She agreed to submit to a battery of field sobriety tests, including standing on one (1) leg and the nose to finger tests. Corporal Larry Williams then asked Defendant if she would submit to a blood test. Defendant asked Deputy Marsha Brolsma what would happen if she refused to submit to the test. Deputy Bro lsma respo nded that sh e cou ld lose her driv er’s license for six (6) months, so Defendant agreed to submit to the test. Defendant recalled that the officers did not read a n Implied Co nsent form to her, but did provide it for her signature. She was left, unhandcuffed, by the police to stand by herself at her van.

After Randy Wilkerson arrived at the scene , they left the sc ene in Wilk erson ’s truck to go to th e hos pital. W hile en route to the hospital, they had to stop as they did not know the way to the hospital. Deputy Brolsma was following them, and she agreed to lead them to the hospital. As Defendant was unable to walk when she arrived, she was assisted into the emergency room. Defendant’s blood was drawn

-3-first, then a brace was placed on her arm and her leg. Her arm was sprained, her leg was frac tured, and she suffered additional burns to her arm and face from the deplosion of the airbag . Wilke rson left the hospital and went to Defendant’s home to check o n the child ren. W hile she w as at the h ospital, D efendant telephoned Wilkerson several times. Defendant also called her secretary and a cousin. After calling Wilkerson a final time to ask him to pick her up from the hospital, Deputy Brolsma informed Defendant that she was not going home but that she was under arrest for DUI. The D efenda nt first believed the dep uty was jo king. Defendant was, howe ver, tak en to ja il.

According to Wilk erson ’s testimony, Defendant called on February 20, 1997, and informed him that she had been involved in an accident. Defendant did not say anything over the telephone to lead him to believe she was under arre st for DU I, however she was screaming and hysterical. After he arrived at the accident scene, Wilkerson found Defendant standing at her van with no police officers . She to ld him that her foot was hurting, so he asked Deputy Brolsma if he could take Defendant to the hospital. After conferring with Corporal Williams, Brolsma responded that he could transport her to the hospital and that she (Brolsma) would follow. Wilkerson assumed the officers were going to the hospital only because there had been a major acciden t. Realizing that he did not know the way to the hospital, Wilkerson pulled over along the way and motioned to Brolsma to stop. Deputy Brolsma advised Wilkerson to follow her to the hospital. A fter arrivin g at the hosp ital, Wilkerson left to go to Defendant’s home and check on her children. Defendant called him several times while he was at her home, and the last time she called she told him she had been arrested.

-4-

On cross-e xamina tion, W ilkerson recounted their alcoholic beverage consumption on February 20, 1997. Wilkerson admitted that the Defendant had consumed three (3) beers that evening. The Defendant dropped him off following their date at 10:00 p.m.

Depu ty Marsh a Brolsm a also tes tified at the hearin g on the motion to suppress. Brolsma had been with the Williamson County Sheriff’s Department for 1.5 years, receiving thre e (3) days acc ident investigation training a nd two (2) days DUI investigation training at the Tenne ssee Law Enforcem ent Training A cadem y. This was Deputy Brolsma’s first accident investigation and her first DUI investigation. On February 20, 1997, she was on duty and was dispatched to the scene of an accident on Hillsboro Road. After arriving at the scene at approxim ately 11:2 2 p.m., Brolsma encountered the Defendant. While trying to retrieve her license and registration, Brolsm a iden tified a s trong o dor of a lcohol abou t the D efend ant’s person. The Defendant admitted that she h ad co nsum ed on e (1) Z ima, a n alco holic beverage, but was noticeably staggering and argumentative. Brolsma observed Corporal Williams administer some field sobriety tests, during which the Defendant continued to swagger and argue with the officers.

Depu ty Brolsma read the content of the Implied Consent form to the Defen dant, including the beg inning portion of the fo rm which states, “You are under arrest.” Brolsma then inquired whether the Defendant understood everything that was read to her from the form. The Defendant responded affirmatively and agreed to subm it to a blood test. Corporal Williams also signed the form as a witness, and Brolsma then left the area to continue her investigation upon the assumption that Corporal Williams would take charge of the Defendant. Upon returning to that area,

-5-Brolsma found the Defendant in Randy Wilkerson’s pickup truck. After inquiring from her supervising Sergeant as to why the Defendant was in Wilkerson’s truck, the Sergeant informed her that he had given permission for the Defendant to ride to the hospital with Wilkerson.

Upon cross-examination, Brolsma explained that Corporal Williams administered the field sob riety tests to the Defendant as Brolsma had never effected a DUI arrest, or any other arrest, and had not at that time attended the Tennessee Law Enforcement Training Academy. This was her first accident investigation. She admitted that she migh t have made mistakes such as not handcuffing the Defendant or placing her in her patrol car when she was arrested. Brolsma stated that she equated her reading the Implied Consent Form to the Defendant with placing her under arrest. Because she misunderstood her supervisor’s instructions, Brolsma failed to handcuff the Defendant or place her in the patrol car. While Brolsma did not know Defen dant ha d called W ilkerson to pick her up from the hosp ital, Bro lsma did not recall that the Defendant was surprised when she w as arre sted a t the ho spital.

Corporal Larry Williams also testified at the hearing on the Motio n to Suppress. Upon arriving at the accident scene and en counte ring the D efenda nt, Williams described her as argumentative, irritated, with slurred speech and having an odor of alcohol about her person. Defendant informed him that she had one (1) Zima to drink, and he found another unopened bottle of Zima in the Defendant’s van. As she wa s com plaining o f ankle pain, Williams had a paramedic examine Defendant prior to administering any field sobriety tests. Because of the obvious extent of her injurie s, W illiams thou ght Defendant was making an unwise choice when she refused medical assistance. After asking the Defendant to perform the

-6-finger to nose test two (2) times with each hand and her failing it all four (4) times, William s stated th at in his opin ion the D efenda nt was d runk.

Williams obse rved D eputy Brolsm a read the Im plied Consent form to the Defendant and then witnessed Defendant sign the form. Specifically, Williams recalled hearing Brolsma notify Defendant that she was under arrest for DUI prior to reading the form to her. Williams stated that he told Brolsma to handcuff the Defendant and place her in the patrol car, but she failed to do so. W illiams then left and went to the se cond c ar involved in the acc ident to do technica l work. W hen Williams returned to find the Defendant absent from the scene, Sergeant Oscar Davidson explained that he let the Defendant go to the hospital as he did not know she wa s unde r arrest.

At trial, Deputy Brolsma testified to substantially the same recurrence of events on February 20 and 21, 1997. Additional testimony included her recollection that Defendant was unable to touch her nose every time she attempted the finger to nose test, was “wobbly” on her feet and was confused as to how to perform the test. W hile at the hospital having Defendant’s blood drawn, Brolsma recalled that Defendant stated, “They’d b etter hope there was e noug h alco hol in her system,” and became very aggressive. Brolsma took possession of the blood sample and checked it into evidence at the Williamson County Sheriff’s Department later that day. On cross-examination, Brolsma admitte d that there were some factual inconsistencies within her Ten nessee U niform Accide nt Rep ort. Brolsma admitted she had no knowledge that Defendant had a fractured leg, a sprained wrist, or injuries from the airbag . She d id ackn owled ge the Defe ndan t was in jured a nd visib ly

-7-shaken at the accid ent scen e. Brolsm a adm itted that D efenda nt was left unrestra ined for ne arly fifty (50) min utes at the scene following h er arrest.

The State’s second trial witness was Corporal Larry Williams who has had extensive training and experience in DUI in vestiga tions. W illiams a dded to his testimony from the motion to suppress that while he believed the Defendant was drunk, he left it u p to De puty B rolsm a to de termin e whe ther the Defe ndan t shou ld be arrested.

Special Agent Michael Little, a forensic toxicologist with the Tennessee Bureau of Investigation, testified that he performed an ethyl alcohol analysis of the Defe ndan t’s blood. Defendant’s blood was found to contain 0.16 grams percent of ethyl alcohol. Little also described that he performed such testing using procedures to confirm the accu racy of the test results. When asked if he destroyed the blood sam ple following the testing, Little explained that he had g iven the blood sam ple to a representative of Quest Diagnostic Laboratory to perform an independent examination of the amou nt of ethyl alcohol in Defendant’s blood. On cross-examination, Agent L ittle conced ed that he perform ed two (2 ) tests of the Defenda nt’s blood sam ple. The first test registered 0.1620 gram s percent of ethyl alcohol and was taken on March 13, 1997, and the second test of May 6, 1997 registered 0.166 7 gram s perc ent of e thyl alcohol. Little explained that the TBI routine ly drops the final two digits as standa rd opera ting proce dure, the refore bo th test results resulted in a 0.16 percentage. According to his studies with the Tennessee Highway Patrol and the TBI, Little concluded that a 125 pound female, standing five (5) fe et, one (1) inch es tall, would have to consume seven (7) to nine (9) drinks to register an ethyl alcohol level of 0.16.

-8-

Ron Perry testified as a character witness for the Defendant. He stated that the Defendant oversees his firm’s benefits department, supervising fifteen (15) employees. Wh ile Perry had seen the Defendant consume alcoholic beverages on occasion, he had never seen her drunk or intoxicated. The day fo llowing the accident of February 20, 1997, Defendant was unable to come to work due to her injuries.

Joy Sullivan, cousin and co-employee with the Defendant, stated that the Defendant missed approximately one (1) month of work fo llowing this accident. The Defendant was, in her opinion, a “very truthful, honest and upstanding member of the com munity.”

Randy W ilkerson testified again at the trial. Wilkerson had known the Defendant for fifteen (15) years, but the evening of February 20, 1997, was their second date. They met in the Green Hills area that night after work. The Defendant drove them to dinner on 2nd Avenue where they ate oysters and drank two (2) be ers each. The y walk ed to a co ncert at the nearby N ashville Are na, whe re they bo th consumed two (2) additional beers. After the concert concluded around 10:00 p .m., the Defendant drove Wilkerson to his truck and he returned to his home in Madison. The remaining portion of his testimony was substantially the same as his testimony from the hearing on the motion to suppress. However, he did add th at no o ne co uld have judged the Defendant’s state of sobriety at the scene of the accident because she was “scared to death,” screaming, and crying.

The Defendant concluded the testimony at trial. In addition to a recollection of the events similar to what she previously testified to at the hearing on the motion

-9-to suppress, Defendant testified to the events p recedin g the acc ident. On Feb ruary 20, 1997, sh e left work a t approxim ately 4:30 p.m. Afte r returning home, she prepared dinner and consumed one (1) Zima prior to leaving. She thre w the em pty Zima bottle in the back of her car, then drove to a friend’s home to pick up Randy W ilkerson. She drove Wilkerson to the Nashville Arena and parked, then they walked to Joe’s Crab House where she consumed one (1) beer and ate oysters and shrimp. Defend ant spe cifically stated that W ilkerson w as mista ken when he described that they each consumed two (2) beers at dinner. While she was at the conce rt, Defe ndan t did co nsum e two (2 ) additio nal beers. She believed she was sober a nd fine to d rive her ca r.

Defendant also stated that she became upset at the scene of the accident because the police officers were accusing her of drinking and driving. She became further irritated when, upon entering the hospital, she was required to give a blood samp le before they wou ld exam ine her inju ries.

On cross-examination, Defendant denied any know ledge of her b lood s amp le being sent to the Quest Diagnostic Laboratory for independent testing. She surmis ed that he r previous attorney m ight have reques ted the tes t.

The State ca lled Eun etta Crea de, Deputy Clerk w ith the W illiamson Coun ty Circu it Court, as a rebuttal witness. Over objection by the Defendant, Creade read into the record the Defendant’s “Motion to Preserve Blood Sample for Testing” which was filed be fore the trial. Creade also read its companion Order establishing permission to preserve the Defendant’s blood sample for independent analysis.

-10-

I. M OTION TO S UPPRESS

Defendant argues that the trial court erred in denying her motion to suppress the results of her ethyl alcohol test performed by Agent Michael Little because the State failed to com ply with the requirements of Tennessee Code Annotated section 55-10-4 06. Ten nesse e Cod e Anno tated sec tion 55-1 0-406(a ) provides that:

Any person who drives any motor vehicle in the state is deemed to have given consent to a test for the purpose of determining the alcoh olic or drug content of that person’s blood; provided, that such test is administered at the direction of a law enforcement officer having reaso nable grounds to b elieve such person to have been driving w hile under the influence of an intoxicant or drug, as defined in § 55-10-405. ... (3) If such person having been placed under arrest and thereafter having been re queste d by a law enforce ment o fficer to subm it to such test and advised of the consequences for refusing to do so, refuses to subm it, the test shall not be given and such person shall be charged with violating this subs ection . . .

The Defendant asserts that because she was not properly arrested, a necessary statutory prereq uisite was not met for a law enforcement officer to request and obtain a blood sample. Therefore, Defendant argues that the blood sample was obtained when Defendant was not under valid “arrest” and the results of such sample are, therefore, inadmissible.

Following the hearing on the motion to suppress, the trial court found that there was no question of whethe r the police officers ha d proba ble caus e to arrest. W hile the trial court did not find that the Defendant was in police custody, the Defendant was no tified that she was under arrest and agreed to the terms of the Implied Consent form. The miscommunica tion between the police officers did not mak e her c onse nt illega l. The tr ial cou rt spec ifically noted tha t under th e autho rity of State v. E vetts, 670 S.W.2d 640 (Tenn. Crim. App. 1984), a defendant does not

-11-have to be in actual physical custody for a valid waiver by the defendant under the terms of the Implied Consent statute.

“The party p revailing in the tria l court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that m ay be drawn from that eviden ce.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The findings of the trial court shall be upheld so long as the grea ter weigh t of the evide nce su pports th ose findin gs. Id. Unless the evidence preponde rates otherwise, the trial court’s findings of fact in the suppression hearing will be upheld. Furthe rmore, this court may consider the entire record, including the evidence submitted both at the suppression hearing and at trial, in evaluating the co rrectn ess o f the trial c ourt’s ru ling on Defe ndan t’s pretria l motio n to suppress the results of her ethyl alcohol blood a nalysis. State v. Henning, 975 S.W .2d 290 , 297 (T enn. 19 98).

Both during the suppression hearing and the trial, Deputy Brolsma and Corporal Williams testified that the Defendant was notified that she was under arrest for DUI. S pecific ally, Defendant was told, “You are under arrest.” While the Defendant testifies that she was never notified of the arrest until she was preparing to leave the hosp ital on Feb ruary 21, 1 997, all oth er testimo ny is contra ry. The trial court’s findings of fact must be upheld so long as the evidence does not prepon derate otherwis e. Odom, 928 S.W.2d at 23. All rea sonab le and leg itimate inferences from the testim ony indicate, under the strongest legitimate view of the evidence, that the Defendant was notified that she was under arrest either prior to the reading of the Implied Consent form or during the reading of the Implied Consent form.

-12-

In additio n, even if there is a some validity to the dispute regarding the status of her arrest, the purpose of the statute “is not to carve out a rule of exclusion when the provisions . . . have not bee n followed.” See State v. Jerry Huskins, No. 01C01-9707-CR-00253, slip op. at 7, Putnam County (Tenn. Crim. App., at Nashville, September 29, 1998), perm. to appeal denied (Tenn. 1999). An officer’s noncompliance with the req uireme nts of Tennessee Code Annotated section 55-10-406 does not warrant suppression of the Defe ndan t’s bloo d alco hol tes t results at trial. Id.

II. A DMISSIBILITY OF E VIDENCE

The Defen dant arg ues tha t the trial court e rred in allow ing the S tate to introduce testim ony co ncern ing the disposition of Defendant’s blood sample for independent testing. Over objection by the Defendant, Special Agent Michael Little was perm itted to te stify that h e gave Defe ndan t’s bloo d sam ple to a representative of Quest Diagnostic Laboratory on May 6, 1997, to perform an independent blood alcohol analysis of that sample. The State argues that any impropriety in this line of questioning is h armless erro r.

Tennessee Code Annotated provides that any person tested in accordance with section 55-10-410 “shall be entitled to have an additional sample of blood or urine procure d and th e resulting test performed by any medical laboratory of that perso n’s own choosing and at that person’s own expense; provided, that the medical laboratory is licensed pursua nt to Title 68, Chap ter 29.” Tenn. Code Ann. § 55-10-410(e). This court has recognized the defendant’s right to have an independent test of her bloo d sam ple cond ucted for its ethyl alcohol content under the authority of

-13-Rule 16(a)(1)(C ) of the Te nness ee Ru les of Crim inal Proc edure. State v. Gilbert, 751 S.W .2d 454, 460 (Tenn. Crim . App. 1988 ) (citations omitted).

It is inappropriate for a prosecutor to question a defendant regarding the defen dant’s independent testing of a blo od sa mple if the defen dant ch ooses not to introduce the results of the test in her defe nse pro of. State v. Gregg, 874 S.W.2d 643, 645 (Tenn. Crim. App. 1993). While the court found the error to be harmless for the defendant in Gregg, we cannot find this questioning as harmless for Defendant in the case sub judice. In Gregg, the court observed that prior to the questions regardin g indep enden t testing, the proof presen ted to the jury demonstrated that two (2) vials of blood were drawn during the testing, one (1) of which was given to the defend ant. Id. at 645. Furthermore, the court noted that the defendant herself “volunteered that the vial in her possession was at the hospital for testing but was not initially tested because her name w as misspe lled. Thus, the jury was well aware of the fac t that there was an other vial of blood that had been availab le for testing.” Id. In the cas e of this De fendan t, no other evidence had been presented to the jury regarding any independent testing of the Defendant’s blood.

In addition, Defendant also contends that any cross-examination of her by the State regarding an earlier “Motion to Pre serve Blood Samp le for Testing” was permitted in error by th e trial court. While Defendant denied any knowledge of such motion during her cross-e xamina tion, the D eputy Court Clerk was later called as a rebuttal witness b y the State and pe rmitted to read the contents of the motion and the companion order allowing the preservation of the blood sample for independent testing. While Defendant does have a right to obta in an a ddition al sam ple or o btain the existing sample o f blood for an inde penden t ethyl alcohol analysis, whatever the

-14-defendant chooses to do with the sample is her preroga tive. Gregg, 874 S.W.2d at 645. The prosecutor should not have been allowed to question Defendant concerning the test results or to present rebuttal testimony from the court clerk since Defendant chose not to use independent test results in her proof. T he on ly poss ible rationale for this line of questioning w as to create a n egative inference for the jury. Id. In addition, as Defe ndan t could not be prope rly impeache d by a mo tion or court order she did not have kn owledge o f, such test results we re inadmissible absent an approp riate evidentiary found ation. Id. There was no objection to this line of questioning of the De fendan t. Howeve r, the State conceded during oral argument in this cour t that it was er ror to allow th is line of que stioning. Particularly in light of the error regarding the questioning of Agent Michael Little about independent testing of the blood samp le, we can not find this e rror to be harmless. The cumulative effect of the questioning affec ted the subs tantial rig hts of th e acc used , and re sulted in prejudice to the ju dicial pr oces s. Ten n. R. C rim. P. 52(b); Ten n. R. App. P. 3 6(b).

III. S UFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence introduced at trial failed to establish the Defe ndan t’s guilt beyond a reasonable doubt. She was convicted of one (1) count of driving w hile under the influence with a blood or breath alcohol level at or above .10 percent. Tenn. Code Ann. § 55-10-401(a)(2). Specifically, Defendant argues that the evidence was tainted due to some foreign material in the blood sample test tube.

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

-15-prosecution, any rational trier of fact could have found the essential elements of the crime b eyond a reason able do ubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ). On appea l, the State is entitled to the stronge st legitima te view of the evidence and all inference s therefro m. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innoc ence and re place s it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle, 639 S.W.2 d 913, 9 14 (Te nn. 198 2); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions conce rning the credibility of the witnesses, the weigh t and valu e to be given the evidence, as well as all factual issues raised by the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace, 493 S.W.2d at 476.

First, we observe that both Brolsma and Williamson, the police officers investigating the accident scene, testified that the Defendant had the odor of alcohol about her pe rson, w as arg ume ntative and w as sta ggerin g follow ing the accide nt. Defe ndan t was a lso un able to succe ssfully complete any of the field sobriety tests which were administered to her at the scene. By her own admission, Defendant had been drinking and driving that evening. Her companion that night, Randy Wilkerson, also testified that Defendant had consumed at least (3) alcoholic beverages. A Zima bottle was found in D efenda nt’s car by th e police.

-16-

Regarding the test tub e sam ple, TB I Agent M ichael Little testified that he tested the Defendant’s blood sample twice. He also described routine procedures by which his testing of Defendant’s blood was monitored and confirmed to manifest accura te results. Wh ile there was a slight va riance in the results of the two (2) tests, Little explained that suc h varianc e was d ue to a slig ht variability in the instrum ent. As the State points ou t within its brief, an y sugge stion that a foreign substance was in the tes t tube is mere ly specu lation by the Defen dant. Any questions concerning the credibility of the witnesses and the weight and value to be given the evidence was determined by the trier of fact. We will not reweigh the evidence. In the strongest legitimate view of the e vidence , there is m ore than sufficient evidence whereby the trier of fact could have found Defendant guilty of driving under the influence . This issu e is withou t merit.

C ONCLUSION

The Defendant’s issues challenging the sufficiency of the evidence and the admis sibility of the blood tests p erformed b y the TBI are w ithout merit. How ever, finding reversible error regarding Defendant’s other two issues, we reverse the judgm ent and reman d this cas e for a ne w trial.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR: ___________________________________

-17-JOHN H. PEAY, Judge

___________________________________ JERRY L. SMITH, Judge

-18-