EVIDENTIARY ISSUES
FOR DUIs and BEYOND
Steve R. Dozier
October 2010
St. v. Brotherton
35 TAM 40-6
Tenn. Supreme Court 9/27/10

DUI stop based on faulty taillight.
 Defendant had taped over a break in light
with red tape but officer observed “bright
light” and observed weaving within lane.
 Court held: was basis for stop based on
articulable facts—officer does not have to in
fact show there was a violation of TCA 559-402.
NEW LAWS (1/1/11)

DUI Offenses - As enacted, revises the substances that give rise to a
DUI, so that it is unlawful to operate or be in control of a motor driven
vehicle while under the influence of any intoxicant, marijuana,
controlled substance, drug, substance affecting the central nervous
system or combination thereof that impairs the driver's ability to safely
operate a motor vehicle by depriving the driver of the clearness of
mind and control of himself which he would otherwise possess. Amends TCA Title 55, Chapter 10.(HB 3280 *SB 2970

DUI Offenses - As enacted, revises provisions governing which court
will make determination of violation of implied consent law; revises
other provisions governing implied consent law. - Amends TCA Title
55, Chapter 10.(HB 3282 *SB 3121
New laws cont.

Bail Bonds - As enacted, allows a court, when
setting bail for a defendant arrested for certain
alcohol related offenses and such defendant has
prior convictions for certain alcohol related
offenses or is currently already released on bail for
certain alcohol related offenses, to order
monitoring devices or in-patient treatment as a
condition of release and requires the court to
determine whether the defendant is a danger to
the community prior to release. - Amends TCA
Title 40

Public Chapter No. 921 PUBLIC ACTS, 2010 1 PUBLIC CHAPTER NO. 921 SENATE BILL NO.
2965
EFFECTIVE 1/1/11

SECTION 3. Tennessee Code Annotated, Section 55-10-403(a)(1)(A)(iii), is amended by deleting the
subdivision in its entirety and substituting instead the following:
(iii) In addition to the other penalties set out for a person convicted of a first offense violation of §
55-10-401, if the person applies for and the court orders the issuance of a restricted motor vehicle
operator's license pursuant to subsection (d), the court shall also order the person to operate only a
motor vehicle that is equipped with a functioning ignition interlock device, if at the time of the
offense, the defendant:
(a) Has a blood or breath alcohol concentration of fifteen hundredths of one percent (.15%) or higher;
(b) Is accompanied by a person under eighteen (18) years of age;
(c) Is involved in a traffic accident for which notice to law enforcement is required under § 55-10107, and the accident is the proximate result of the person's intoxication; or
(d) Is in violation of the implied consent law under § 55-10-406, and has a conviction or juvenile
delinquency adjudication for a violation that occurred within five (5) years of the instant implied
consent violation,
for:
(A) Implied consent under § 55-10-406;
(B) Underage driving while impaired under § 55-10-415;
(C) The open container law under § 55-10-416; or
(D) Reckless driving under § 55-10-205, if the charged offense was § 55-10-401.
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Ignition Interlock
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Geographic Restrictions: As a general rule, the geographic
restrictions listed in Tenn. Code Ann. § 55-10403(d)(1)(A)(iv) will not apply to first offenders who are
utilizing an interlock device pursuant to TCA §§ 55-10403(a)(1)(A)(iii) or 55-10-412(b)(2). In contrast, second
offenders who are utilizing the device pursuant to TCA §
55-10-403(c)(4) are subject to the geographic restrictions
even if they are using an interlock device. Finally, if a
court orders the use of an interlock device pursuant to TCA
§§ 55-10-412(b)(1) or (m), the geographic restrictions will
apply to the offender.
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Can not control facts of case
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Usually have to deal with current law
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Can impact rulings by Court as to what evidence
gets to jury
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Know the rules of evidence
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Know developing case law
KNOWLEDGE IS POWER

Knowledge of evidentiary issues garner trust with
the Judge
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How many of you have read the Rules of
Evidence in last 6 months?
RELEVANCE

Rule 401- Relevant evidence means any evidence
having any tendency to make the existence of any
fact that is of consequence to the determination of
the action more or less probable than it would be
without the evidence.
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Rule 403 – Although relevant, evidence may be
excluded if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
EXAMPLES

State v. Treva Green 2000 WL 1839130
(Tenn.Crim.App.)
 BOLO and weaving case
 At time of arrest and while in route to
booking, Ms. Green made the statement—
”can I go home if I give you a ---- job?”
 Is this statement relevant? If so, “unfairly
prejudicial”?
Rule 702--Expert

State v. Baker—2009 WL 3460427
10/28/09—no need to declare witness an
expert to testify about walk/turn and one leg
stand field sobriety tests. (St. v. Murphy,
953 Sw2d 200 (Tenn. 1997)(HGN test)

“evidence is prejudicial” BUT in effect, the
defendant was attempting to bribe the
officer AND individuals who are
intoxicated sometimes make nonsensical
statements or say things that a person with a
clear mind would not say---ADMISSIBLE.
RULE 801 DEFINITIONS

A “statement” is (1) an oral or written assertion or
(2) nonverbal conduct of a person if it is intended
by the person as an assertion.
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A “declarant” is a person who makes a statement

“Hearsay” is a statement, other than one made by
the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of
the matter asserted.
3 PREREQUISITE QUESTIONS

Is it an assertion?
– Imperative (order), exclamatory, interrogatory,
declarative (asserts)
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Was it made out of Court?
– Declarant can be same as witness on stand
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Is it offered for the truth of the matter asserted?
(most difficult)
– What is it being offered for?
HEARSAY MISPERCEPTIONS
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“But the defendant was present”
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“They were asking her questions”
RULE 802 – HEARSAY RULE
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Hearsay is not admissible except as provided by
these rules or otherwise by law.
State v. Brown, 29 S.W.3d 427 (Tenn. 2000)
 “critical to the defense”—6th Amendment
TRE 803(26) 7/1/09

(26) Prior Inconsistent Statements of a Testifying Witness.-A statement
otherwise admissible under Rule 613(b) if all of the following
conditions are satisfied:

(A) The declarant must testify at the trial or hearing and be subject to
cross-examination concerning the statement.
(B) The statement must be an audio or video recorded statement, a
written statement signed by the witness, or a statement given under
oath.
(C) The judge must conduct a hearing outside the presence of the jury
to determine by a preponderance of the evidence that the prior
statement was made under circumstances indicating trustworthiness.
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St. v. Danny Troutman
2008 Tenn.Crim.App Lexis 899

Application of TRE 902 (selfauthentication)
 4th offense DUI
 State introduced court records of prior
convictions through signed/stamped
documents.
 Facsimile of signature/no raised seal/no seal
at all

COURT held:
 TRE 902 can include a stamped signature
 Notary public mark does not have to be
raised
 TRE 902(1) requires document be “under
seal”
 REVERSED – DUI 1st imposed.
St. v. Wilson
35 TAM 37-25 7/26/10

Field sobriety tests were not recorded due to
mechanical malfunction of recording
equipment.
 Deputy believed stop was being recorded.
 No duty on state to make sure equipment
records ALL of stop—no Ferguson
violation.
State v. King
2010 WL 1172209 3/26/10
Murder 1st case 3 victims shot
 Box of evidence containing fibers, latent prints
and photographs thrown away by janitor in police
department’s office thinking it was trash.
(evidence from car of 1 of victims taken to body
shop at defendant’s direction to be destroyed)
 No Ferguson violation—exculpatory value of
evidence is questionable. No gross negligence and
overly proof of guilt.

Chapman v. Lewis
2010 WL 2943266 (7/28/10)

8 day medical malpractice case
 Trial court granted new trial due to defendant
doctor’s trial counsel using PowerPoint in closing
argument and displaying expert testimony on
screen w/no notice to opposing counsel.
 Use of PowerPoint in closing argument to display
testimony from witnesses---OK—trial court
REVERSED.
CRAWFORD V. WASHINGTON,
124 S.Ct 1354 (2004)
 First, that we apply the Confrontation Clause only to
testimonial statements, leaving the remainder to regulation
by hearsay law … Second, that we impose an absolute bar
to statements that are testimonial, absent a prior
opportunity to cross-examine…
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Where testimonial statements are involved, we do not think
the Framers meant to leave Sixth Amendment’s protection
to the vagaries of the rules of evidence, much less to
amorphous notions of “reliability”.
CRAWFORD V. WASHINGTON, cont’d.

Dispensing with confrontation because testimony is
obviously reliable is akin to dispensing with jury trial
because a defendant is obviously guilty. This is not what
the Sixth Amendment prescribes.
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Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for crossexamination. We leave for another day to spell out a
comprehensive definition of “testimonial”. Whatever else
the term covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations. These are the modern
practices with closest kinship to the abuses at which the
Confrontation Clause was directed.
What is testimonial?
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Those pre-trial statements the declarant
“would reasonably expect to be used
prosecutorially”
 Or stated another way, “would an objective
witness reasonably believe the statement
would be used at a later time in court
proceedings”
TENNESSEE CASES SINCE
CRAWFORD
State v. Anderson, 2005 WL 171441
(Tenn. Crim. App. January 27, 2005)
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Excited Utterance
– “large man just kicked in door of business and is still
inside”
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Quote p. 25
State v. Howard, 2004 WL 2715346
(Tenn. Crim. App. November 18, 2004)
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Co-defendant’s statement thru police when police
confronted the defendant.

Held: No relevant purpose to read into record what
co-defendant said even though it was offered to
show defendant’s reaction. Even though Crawford
was violated, harmless error because defendant
called co-defendant and got favorable testimony.
State v. Summers, 2004 WL 2070880
(Tenn. Crim. App. September 15, 2004)

Victim testified at the juvenile transfer hearing and
at the trial was unable to be found.

“Defendant had a similar motive and opportunity
in juvenile court proceeding to develop victim’s
testimony through cross examination” T.R.E. 804

Held - Admissible
State v. Robinson, 146 S.W.3d 469 (Tenn.
2004)

Defendant waived objection under T.R.E 803 or
Crawford when he brought up photo line-up
identification