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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs June 26, 2007 STATE OF TENNESSEE v. MICHAEL D. BOON
Direct Appeal from the Criminal Court for Hamilton County No. 255718 Don W. Poole, Judge

No. E2006-02320-CCA-R3-CD - Filed December 4, 2007

Following a bench trial, Defendant, Michael D. Boon, was found guilty of driving under the influence (DUI), first offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, to be suspended after serving forty-eight hours in confinement. On appeal, Defendant argues that the trial court erred in denying his motion to suppress and contends that the admission of certain testimony violated his constitutional right to confront witnesses. After a thorough review, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and D. KELLY THOMAS, JR., J., joined. Jerry H. Summers and Marya L. Wegenka, Chattanooga, Tennessee, for the appellant, Michael D. Boon. Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and Neal Pinkston, Assistant District Attorney, for the appellee, the State of Tennessee. OPINION I. Suppression Hearing Prior to trial, Defendant filed a motion to suppress the evidence against him arguing that the arresting officer did not have reasonable suspicion to stop Defendant's vehicle. At the suppression hearing, Officer Victor Woughter, with the Chattanooga Police Department, testified that he was traveling eastbound on I-24 on March 24, 2005, at approximately 11:00 p.m. Officer Woughter observed a silver Ford Focus in front of him which was weaving back and forth in the traffic lane. Officer Woughter activated his video camera and followed the vehicle to the East Brainerd Road area

on I-75. Officer Woughter said the vehicle crossed over either the dashed line on the right of the vehicle or the left yellow line approximately ten to twelve times. Officer Woughter said that the vehicle maintained a fairly consistent speed until the I-75 interchange when the vehicle increased its speed. Officer Woughter followed the vehicle at a consistent distance for approximately two-tenths of a mile. Based on his speedometer, Officer Woughter testified that the vehicle during this time was traveling eighty miles per hour in a fiftyfive-mile per hour speed zone. Officer Woughter then activated his blue lights based on the driver's erratic driving and speed. On cross-examination, Officer Woughter stated that his patrol car had been driven approximately 85,000 miles at the time of the stop. Officer Woughter did not know when the vehicle's speedometer was last calibrated. Defendant testified on his own behalf. Defendant said that on the the night in question he was driving in a Ford Focus to his home in East Brainerd. He entered I-24 at the Fourth Avenue entrance ramp and observed a patrol car behind him. Defendant said he maintained a consistent speed of between fifty and fifty-two miles per hour while the patrol car was behind him. Defendant stated this his vehicle had been driven approximately 121,000 miles at the time of the incident. Defendant said that the vehicle had problems with acceleration and had never been driven at a speed of eighty miles per hour. On cross-examination, Defendant said he used his turn signal when he pulled his vehicle off I-75 for the traffic stop but acknowledged that he had not used his turn signals when he switched lanes while Officer Woughter was following him. Gene Boon, Defendant's father, testified that Defendant primarily drove the Ford Focus back and forth from home and work. Mr. Boon said that once the vehicle had been driven seventy or eighty thousand miles, it began incurring significant emissions problems. Mr. Boon said that the vehicle would lose power and stall. Mr. Boon stated that the vehicle had been driven no faster than between approximately seventy and seventy-five miles per hour. At the conclusion of the suppression hearing, the trial court found that Officer Woughter had reasonable cause to initiate the stop of Defendant's vehicle based on Defendant's erratic driving and driving in excess of the posted speed limit. The trial court observed: [n]ow, I don't know what speed they were going, but certainly Officer Woughter, as an experienced officer, can say what his speed was and look at [Defendant] and give an opinion about what his speed is. Whether it was [eighty] miles an hour or not, I'm not making that determination, but I do think there's enough speed there and I do think there's enough weaving there, I do think there's enough touching the yellow on the left and the white broken line on the right, to indicate there was a reasonable and articulable suspicion to stop [Defendant].

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II. Trial At trial, the parties agreed to stipulate that the testimony of Officer Woughter, Mr. Boon and Defendant would be the same testimony that they offered during the suppression hearing. Dawn Swiney, with the toxicology section of the T.B.I., was asked to perform a blood alcohol report for the sample of blood taken from Defendant. Agent Swiney said she received two tubes of blood to which an anticoagulant and a preservative had been added. Agent Swiney said that she placed approximately one milliliter of Defendant's blood sample in a head space gas chromatogram for testing. Agent Swiney testified that the test results showed 0.16 gram percent ethyl alcohol in Defendant's blood sample, with a five percent margin of error. On cross-examination, Agent Swiney stated that the gas chromatogram was manufactured by Perkin Elmer and was approximately five or six years old. Agent Swiney said that the manufacturer performed routine maintenance on the instrument, the dates of which would be noted on the instrument's maintenance records. Agent Swiney believed that the instrument had been serviced within the last six months before trial but could not say definitively without the maintenance records. Agent Swiney said that the T.B.I.'s maintenance records were maintained in accordance with the standards set by the American Society of Crime Laboratory Directors. Agent Swiney acknowledged that there were no quality controls in place for the blood alcohol kits used to store an individual's blood sample. Agent Swiney said that she routinely checked the integrity of the test tubes containing a blood sample before testing the sample. On redirect examination, Agent Swiney stated that she ran a series of standards through the gas chromatogram prior to testing Defendant's blood sample, and her records indicated that there were no problems with the instrument. III. Suppression of Evidence Defendant argues that the trial court erred in denying his motion to suppress because Officer Woughter lacked reasonable suspicion to justify the stop. Specifically, Defendant argues that the State failed to prove that Officer Woughter's speedometer had been recently calibrated before or after the traffic stop. Secondly, Defendant argues that any weaving within his own lane was insufficient to support the requisite reasonable suspicion under our supreme court's decision in State v. Binette, 33 S.W.3d 215 (Tenn. 2000). A trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The prevailing party in the trial 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 may be drawn from that evidence." Odom, 928 S.W.2d at 23. Furthermore, "questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." -3-

Id. However, this Court reviews the trial court's application of the law to the facts under a de novo standard of review without any deference to the determinations of the trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Defendant urges this Court to dispense with the presumption of correctness ordinarily afforded a trial court's finding because the evidence was based on the video tape of Defendant's driving and did not raise an issue as to credibility. In Binette, the Supreme Court observed that "when a trial court's findings of fact on a motion to suppress are based solely on evidence that does not involve issues of credibility, appellate courts are just as capable to review the evidence and draw their own conclusions." Binette, 33 S.W.3d at 217. Accordingly, the Binette court concluded that in circumstances where the only evidence presented to the trial court does not raise an issue as to credibility, "a reviewing court must examine the record do novo without a presumption of correctness." Id. In the case sub judice, however, Defendant placed credibility directly at issue by testifying, and the trial court was called upon to assess the credibility of the witnesses and resolve any conflicts. We will thus extend a presumption of correctness to the trial court's findings in this regard. The Fourth Amendment to the United States Constitution grants the right to be secure from unreasonable searches and seizures, and prohibits the issuance of warrants without probable cause. Article I,

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