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State v. Arnett7/18/2005
Factual Background
The following facts, taken from an affidavit of one of the arresting officers, were stipulated to by the State and the defendant:
On 11-26-02 at approx. 11:15 P.M., Deputy Tim Tester and Constable Bobby Canter received a call of a wreck on Rittertown Road in which the driver was drunk and was walking up Rittertown Road. Approx. 1 minute later, officers arrived on the scene of the wreck and observed a car sitting in a ditch in a curve. Several bystanders were present and they advised the driver was wearing a white shirt, with blue pants. They stated he asked them if they were cops and then began walking up Rittertown Road. We drove up Rittertown Road and observed a male wearing a white shirt with blue pants approx 3/10's miles from the scene walking away. We checked the male and found him to be John Arnett. He had an open beer inside of his shirt and a beer in his pants pocket. Officer Tester Mirandized Arnett and Arnett stated that he was driving and had ran off the road due to having had to much to drink. He stated the wreck was caused by his stupidity for driving. He was asked to take several sobriety tests for which he replied that he was drunk and there was no need to take any tests. He smelled strongly of an intoxicant, had bloodshot and glassy eyes and was stumbling around having trouble keeping his balance. On the finger to nose test, he did not tilt his head back or close his eyes after being instructed to do so. His body was swaying from side to side and he was touching the top of his nose with his left index finger. He stated he couldn't do the heel-to-toe or the one leg stand. He was placed under arrest and transported to the scene of the accident. Upon arrival, we spoke with several witnesses who stated that they observed the accident and saw the man get out of the car and begin walking up the road. A license check revealed that Arnett was driving on a revoked DL and also had a prior DUI conviction in Carter County in 1999. A breath test revealed his BAC to be .28
On March 6, 2003, the defendant was indicted for two(2) counts of third offense DUI , and one (1) count driving on a revoked license by the Carter County Grand Jury. On July 8, 2003, the defendant filed a motion to suppress any evidence gained as a result of his warrantless arrest. The trial court denied the defendant's motion on September 29, 2003. The defendant agreed to a guilty plea subject to a certified question. The defendant entered a guilty plea to DUI second offense and to driving on a revoked license. The trial court sentenced the defendant to eleven (11) months and twenty-nine (29) days on the amended charge of DUI second offense, a Class A misdemeanor and six (6) months in the county jail for driving on a revoked license, a Class D misdemeanor. The trial court ordered these sentences to be served concurrently. The judgment of the trial court was entered on April 16, 2004. The defendant filed a timely notice of appeal.
ANALYSIS
The certified question of law reserved by the defendant is: whether the trial court erred by failing to hold that the defendant was unlawfully arrested without a warrant, for a misdemeanor (driving under the influence 2nd offense, and driving on a revoked license first offense), not committed in the presence of an officer, and not subject to an exception allowing warrantless arrests under Tennessee Code Annotated section 40-7-103, thereby rendering any evidence gained from such unlawful arrest inadmissible, which would result in the dismissal of the indictment.
Under Rule 37 of the Tennessee Rules of Criminal Procedure:
egardless of what has appeared in prior petitions, orders, colloq
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