Opinion
No. W2002-00066-CCA-R3-CD.
Filed January 2, 2003.
Direct Appeal from the Criminal Court for Shelby County; No. 00-06898; Chris Craft, Judge.
Affirmed as Modified; Remanded.
Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Carl Martin.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Katrina Earley, Assistant District Attorney General, for the appellee, State of Tennessee.
Joe G. Riley, J., delivered the opinion of the court, in which David G. Hayes and Robert W. Wedemeyer, JJ., joined.
OPINION
A Shelby county jury convicted the defendant, Carl Martin, of driving under the influence by impairment and driving under the influence per se. See Tenn. Code Ann. § 55-10-401(a)(1), (2). The trial court merged the DUI per se conviction into the DUI by impairment conviction and sentenced the defendant to eleven months and twenty-nine days, with thirty days in the county workhouse followed by probation. In this appeal, the defendant raises the following issues: (1) whether the trial court erred in denying the defendant's motion to suppress evidence obtained as a result of the vehicle stop; (2) whether the trial court erred in admitting into evidence the result of the breath alcohol test; (3) whether the trial court erred in admitting into evidence the videotaped recording of profane statements made by the defendant after his arrest; and (4) whether the sentence was excessive. Upon reviewing the record, we conclude the admission of the breathalyzer test result was error; however, the error was harmless as to the DUI by impairment conviction. We remand to the trial court to vacate the guilty verdict as to DUI per se. We further determine there were no errors regarding the remaining issues.
Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Criminal Court
On August 24, 1998, at approximately 9:00 p.m., Officer B. E. Copley, a member of the DUI Squad of the Memphis Police Department, conducted a stop of the defendant's vehicle in the area of Winchester Road and Knight Road in Shelby County. Officer Copley testified he stopped the defendant for failing to wear a seat belt and for drifting over the lane line once while rounding a curve in the road.
Officer Copley testified that when he approached the defendant, he noticed that the defendant's eyes were "watery" and "blood-shot." The police officer also stated he smelled alcohol on the defendant's breath, and his speech was slurred. Officer Copley then activated a videotape recorder and administered a series of field sobriety tests on the defendant. The defendant informed Officer Copley that he drank five or six beers at a bar.
The defendant performed a one-leg stand test and a heel-to-toe test. During the one-leg stand test, the defendant put his foot down on several occasions and used his arms to balance. Officer Copley testified the defendant performed "very, very poorly" on this test. During the heel-to-toe test, the defendant stepped out of position, used his arms to balance himself, and failed to touch heel-to-toe once. Officer Copley stated the defendant also failed to properly perform a turn.
After completing the field sobriety tests, the officer opined the defendant was too impaired to drive. The defendant then agreed to submit to a breath alcohol test. The test indicated the defendant had a blood alcohol level of .14%. Officer Copley then placed the defendant under arrest.
At trial, the defendant testified that on August 24, 1998, he went to a bar after work at approximately 7:50 p.m. and drank five beers. He then drove to a convenience store located across the same parking lot and purchased cigarettes. The defendant stated that after leaving the convenience store and upon entering his vehicle, he fastened his seat belt.
The defendant testified that when he saw the police officer's blue lights, he immediately pulled to the side of the road and activated his flashers. He unfastened his seat belt and exited his vehicle. After the defendant admitted to Officer Copley that he had been drinking, the officer asked him to perform a series of field sobriety tests. The defendant testified that a previous knee injury prevented him from successfully completing the tests. The defendant stated he was not too impaired to drive.
A Shelby county jury convicted the defendant of DUI by impairment and DUI per se. See Tenn. Code Ann. § 55-10-401(a)(1), (2). The trial court merged the DUI per se conviction into the DUI by impairment conviction and sentenced the defendant to eleven months and twenty-nine days, with thirty days in the county workhouse followed by probation.
I. THE VEHICLE STOP
The defendant contends the initial stop was constitutionally invalid. We disagree.
A. Motion to Suppress
Unless the evidence preponderates against them, the trial court's findings of fact in a suppression hearing will be upheld on appeal.State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). If the issue involves an application of law to undisputed facts, the appellate courts conduct a de novo review as to the question of law. State v. Troxell, 78 S.W.3d 866, 870 (Tenn. 2002).
During the suppression hearing, Officer Copley testified that on August 24, 1998, he parked his patrol car north on Knight Road, south of Winchester Road. According to his testimony, the area was well-lit with street lights and lights from surrounding businesses. Officer Copley stated he saw the defendant drive his vehicle from the parking lot of a bar onto Winchester Road. The defendant then proceeded west on Winchester Road and turned left onto Knight Road. The defendant drove past Officer Copley's car and turned right at an intersection.
Officer Copley testified that when the defendant passed him, he noticed the defendant was not wearing a seat belt and decided to follow him. The police officer stated that when the defendant rounded a curve, his left tires drifted over the lane line and back once. Officer Copley then stopped the defendant for violating the seat belt law and for "straddling lanes."
During the suppression hearing, the defendant testified he fastened his seat belt prior to leaving the parking lot. The defendant stated he drove west on Winchester Road and made a left-hand turn into the left lane. He further stated that after he crossed into the right lane without activating his turn signal, Officer Copley activated his blue lights. The defendant then pulled over to the side of the road, activated his flashers, unfastened his seat belt, and exited the vehicle. He maintained that no other traffic was on the road while he was driving.
The defendant testified he was driving a pick-up truck with tinted windows. In addition, the defense presented photographs of the vehicle and the area in which the defendant was stopped.
The trial court found that the stop was constitutionally valid. The trial court found that the officer properly stopped the defendant for drifting over the lane line and for failing to wear a seat belt. The trial court fully accredited the police officer's testimony and considered the photographs in making its determination.
B. Search and Seizure
The Fourth Amendment of the United States Constitution states the following:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Further, Article I, Section 7 of the Tennessee Constitution provides
[t]hat the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.
The purpose and intent of Article I, Section 7 is identical with that of the Fourth Amendment, which is to "safeguard the privacy and security of individuals against the arbitrary invasions of government officials."State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002) (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967)); State v. Gonzalez, 52 S.W.3d 90, 95 (Tenn.Crim.App. 2000).
These constitutional protections against unreasonable searches and seizures also apply to vehicles. Troxell, 78 S.W.3d at 870-71. A law enforcement officer must have probable cause or reasonable suspicion supported by specific and articulable facts to believe an offense has been or is about to be committed in order to stop a vehicle. Randolph, 74 S.W.3d at 334.
A minor traffic violation constitutes probable cause for an investigatory stop of a vehicle. State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997). The fact that a reasonable police officer might not have stopped the vehicle for the alleged traffic violation does not render the stop illegal. Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, the officer must have actually observed the alleged violation upon which the stop was based. Id. at 812-13.
In the case at bar, Officer Copley stopped the defendant for failing to wear a seat belt and for "straddling lanes." Under Tennessee law, "[n]o person shall operate a passenger motor vehicle in this state unless such a person and all passengers four (4) years of age or older are restrained by a safety belt at all times the vehicle is in forward motion." Tenn. Code Ann. § 55-9-603(a)(1) (1997). However, the statute further provides that "no citation or warrant for arrest shall be issued for a violation of this section unless a person is stopped by a law enforcement officer for a separate violation of law and is issued a citation or warrant for arrest for the separate violation of law." Id. § 55-9-603(f)(1). Effective July 1, 2000, an officer "shall issue a citation" for a seat belt violation regardless of other violations, see Tenn. Code Ann. § 55-9-603(i)(3) (Supp. 2000); however, this provision was not in effect at the time of the present infraction.
Probable cause to conduct a traffic stop may be based on a seat belt violation. See United States v. Draper, 22 Fed. Appx. 413, 415 (6th Cir. 2001) (a case arising from a stop in Memphis, Tennessee); Bell v. State, 248 Ga. App. 254, 257, 546 S.E.2d 34, 37 (2001). In Draper, the Sixth Circuit held that a Memphis police officer had probable cause to conduct a traffic stop for a seat belt violation. Draper, 22 Fed. Appx. at 415. In its opinion, the Sixth Circuit quoted the district court in stating that it "`does not accept the proposition that when an officer observes an illegal seatbelt or a violation of the seatbelt law that he should do nothing.'" Id. We agree with the Sixth Circuit's holding and conclude that probable cause to conduct a traffic stop may be based upon the failure to wear a seat belt. The statutory prohibition on the issuance of a citation or arrest warrant for a seat belt violation alone does not prohibit a stop for public safety reasons when the violation is observed by an officer.
Officer Copley testified he also saw the defendant's left tires drift into the other lane and back once while rounding a curve. In this state, "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." Tenn. Code Ann. § 55-8-123(1) (1997).
This court has held that the drifting of a vehicle onto the shoulder of a road does not necessarily result in a traffic violation. See State v. Ann Elizabeth Martin, No. E1999-01361-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 693, at *19 (Tenn.Crim.App. Sept. 8, 2000, at Knoxville) (holding that "a vehicle that briefly crosses the solid white line on the shoulder is [not] committing a traffic violation"); United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (concluding that drifting into the emergency lane once for a few feet does not violate section 55-8-123).
Under the facts of this case, we are unable to conclude the defendant's action of drifting over the lane one time while rounding a curve was a traffic violation. There was no testimony indicating any other traffic was affected.
Nevertheless, Officer Copley had probable cause to stop the defendant for failing to wear a seat belt. See Tenn. Code Ann. § 55-9-603(a)(1) (1997). The fact that the officer wrongly believed there was also a lane violation is immaterial. We conclude the stop was constitutionally valid.
II. ADMISSIBILITY OF BREATH ALCOHOL TEST RESULT
The defendant contends the state failed to establish the proper foundation for the admissibility of the breath alcohol test result underState v. Sensing, 843 S.W.2d 412 (Tenn. 1992). In Sensing, the Tennessee Supreme Court established the threshold prerequisites for the admissibility of breath alcohol testing device results without the benefit of expert testimony. For the test results to be admissible, the evidence must establish (1) the tests were performed in accordance with TBI standards and operating procedures; (2) the testing officer was properly certified in accordance with those standards; (3) the instrument used was certified by the TBI, tested regularly for accuracy, and was working properly when the test was performed; (4) the motorist was observed for twenty minutes prior to the test, and during this period did not have foreign matter in his or her mouth, consume any alcohol, smoke, or regurgitate; (5) the testing officer followed prescribed operational procedures; and (6) the testing officer identified the printout record as the result of the test given to the person tested. Id. at 416. The state has the burden of establishing compliance with Sensing by a preponderance of the evidence. State v. Deloit, 964 S.W.2d 909, 916 (Tenn.Crim.App. 1997). Unless the preponderance of the evidence is to the contrary, a trial court's decision as to whether the state has met its burden of proof under Sensing is presumed to be correct. State v. Edison, 9 S.W.3d 75, 78 (Tenn. 1999).
A. The Breath Alcohol Machine
The defendant argues that the state failed to prove the third Sensing requirement that the instrument used was certified by the TBI, tested regularly for accuracy, and was working properly when the test was performed. See Sensing, 843 S.W.2d at 416. We disagree.
During the trial, TBI Agent Robert Marshall testified one of his duties as head of the TBI's blood alcohol program in West Tennessee is to inspect each breathalyzer instrument to ensure it is operating properly. He stated he inspects each instrument approximately every ninety days. Agent Marshall inspected the Intoxilyzer 1400, the instrument used on the defendant, on July 14, 1998, and certified that the machine was operating properly under TBI standards. He inspected the machine again on October 14, 1998, and found that the machine was operating properly. Agent Marshall testified that on August 24, 1998, the machine was certified under TBI standards.
However, Agent Marshall testified the machine used on the defendant did not meet all of the standards issued by the TBI. The machine did not meet standard sixteen, requiring a keyboard "[f]or entering all subject information into a database, prior to testing." The machine also did not meet standard eighteen, requiring the instrument be capable "of storing a minimum of 200 tests." Nevertheless, Agent Marshall stated standard nineteen provides a caveat in that "[n]on-compliance with standards 16, 17, and 18 does not in any way reflect the accuracy or precision of the breath alcohol test results." Agent Marshall testified that, because the machine does not have the capability to store tests in its memory banks, he must rely upon the officer administering the test to inform his supervisor of any malfunction.
Agent Marshall testified that if the machine had a problem, it would signal its operator through a high or low pitch or a diagnostic reading and would produce a printout. He further stated certain errors would prevent the machine from performing a breath alcohol test.
Officer Copley testified he was certified under TBI standards as a testing officer, and the breath alcohol machine was operating properly when the defendant took the breath alcohol test. He stated that before he gives a breath alcohol test, the instrument runs through a diagnostic test and tests fresh air. If the machine does not pass each test, it will not allow its operator to give a breath alcohol test. After the person takes the breath alcohol test, the machine will again test fresh air, and if it passes the test, the machine will print the results.
Officer Copley identified the printout produced by the machine after the defendant had taken the breath alcohol test. He testified that according to the printout, the instrument passed the diagnostic test and both fresh air tests and that the defendant's reading was .14%.
The prosecution sufficiently established the Intoxilyzer 1400 was certified by the TBI and was tested regularly for accuracy. Even though the instrument does not comply with standards sixteen and eighteen of the standards for breath alcohol instruments promulgated by the TBI, standard nineteen provides that such non-compliance does not affect the accuracy of the breath alcohol test results. Officer Copley's testimony further established the instrument was operating properly when the test was performed on the defendant. Therefore, we conclude the prosecution sufficiently established the third Sensing requirement.
B. The Twenty-Minute Observation Period
The defendant contends the state failed to sufficiently establish the fourth Sensing requirement, providing that the officer must observe the motorist for twenty minutes prior to administering the breath alcohol test to ensure that the motorist did not have any foreign matter in his or her mouth, consume any alcohol, smoke, or regurgitate. Sensing, 843 S.W.2d at 416. We agree with this contention.
Officer Copley testified he observed the defendant for twenty minutes prior to administering the breath alcohol test, and the defendant did not smoke, have foreign matter in his mouth, or regurgitate. According to the videotape, the following events transpired:
EVENT TIME
Videotape recorder activated 21:13:10
Officer exited the patrol car 21:14:00
Officer conducted leg-lift field sobriety test 21:14:25-16:10
Officer conducted heel-to-toe field sobriety test 21:16:17-18:38
Officer, walking behind the defendant, placed him in the back seat of the patrol car 21:20:30
Officer walked to the other side of the patrol car and sat in front 21:21:11-17
Papers shuffle sporadically 21:21:59-29:00
Officer asked the defendant his full name 21:23:11
The defendant coughed 21:23:25, 21:33:03
Officer asked the defendant his address 21:23:30, 21:27:21
Officer read the consent form to the defendant 21:29:25-30:08
Officer moved his patrol car out of the way of traffic 21:33:35-42
Officer administered breath alcohol test to the defendant 21:36:18
Results of test obtained 21:38:33
The purpose of the fourth Sensing requirement is to ensure "that no foreign matter is present in the defendant's mouth that could retain alcohol and potentially influence the results of the test." State v. Cook, 9 S.W.3d 98, 100-01 (Tenn. 1999). Pursuant to the twenty-minute observation requirement, the prosecution must establish (1) the officer observed the defendant for twenty minutes; and (2) the defendant did not smoke, drink, regurgitate, or have foreign matter in his or her mouth.State v. Arnold, 80 S.W.3d 27, 29 (Tenn.Crim.App. 2002).
Although Sensing does not require an "unblinking gaze for twenty minutes," the police officer "must be watching the defendant rather than performing other tasks." State v. Korsakov, 34 S.W.3d 534, 541 (Tenn.Crim.App. 2000). In Korsakov, this court held the requirements ofSensing were not met where the officer filled out paperwork during the twenty-minute observation period. Id. This court has also held the results of a breath alcohol test were not admissible where an officer observed the subject, who was seated in the back seat, through the rear view mirror while the officer filled out paperwork. Deloit, 964 S.W.2d at 916. Finally, this court has noted that being in the back seat of a patrol car with the officer merely being present in the front seat did not meet the observation requirements. State v. McCaslin, 894 S.W.2d 310, 311-12 (Tenn.Crim.App. 1994).
Initially we note there was only twenty-three minutes from the time the videotape was activated to the administration of the test. Although Officer Copley testified he observed the defendant for twenty minutes preceding the breath alcohol test, the videotape indicates otherwise. The twenty minutes prior to the breath alcohol test began while the officer was administering the heel-to-toe field sobriety test. The test required the defendant to walk several paces heel-to-toe, pivot, and return walking heel-to-toe. There were several instances where the defendant's back was turned to Officer Copley or the defendant's head was down as he was looking at his feet.
The officer, while walking behind the defendant, then escorted him to the patrol car and placed him in the back seat. The officer walked to the other side of the patrol car and sat in the front seat where he filled out paperwork for approximately ten minutes. Although Officer Copley is not shown on the videotape filling out paperwork, he can be heard shuffling papers and asking the defendant for information. In addition, the officer read the consent form to the defendant and moved his patrol car forward to get out of the way of traffic. We are, therefore, unable to conclude the officer observed the defendant continuously for the twenty minutes preceding the test.
We are able to observe that, for the time the defendant's face is viewable on the tape, he did not have any foreign matter in his mouth, consume alcohol, smoke, or regurgitate. See State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000) (holding appellate court's standard of review is de novo without a presumption of correctness where evidence, such as a videotape, does not involve issues of credibility). However, the defendant's face was not observable during the entire twenty-minute period preceding the test. The test result should not have been admitted.
We now examine whether the erroneous admission of the breath alcohol test result was harmless error. The test result was the only evidence establishing DUI per se; namely, a blood alcohol concentration of .10% or more. See Tenn. Code Ann. § 55-10-401(a)(2) (1997). Although the guilty verdict for that offense was merged into the conviction for DUI by impairment, we remand to the trial court to enter an order vacating the guilty verdict for DUI per se.
We are reluctant to find harmless error with regard to the admission of this scientific evidence. See McCaslin, 894 S.W.2d at 312. However, unlike McCaslin, the evidence in this case overwhelmingly establishes the defendant's guilt of DUI by impairment. See Tenn. Code Ann. § 55-10-401(a)(1) (1997). In addition to Officer Copley's damning testimony, the defendant testified he arrived at the bar at approximately 7:50 p.m. and drank five beers. The stop occurred at approximately 9:00 p.m. In the videotape, he told the officer he drank five or six beers at the bar. Thus, the defendant conceded he drank a minimum of five beers within an hour of the stop. The blood alcohol test result, in essence, simply corroborated the defendant's testimony. The record further establishes the defendant's degree of impairment through his belligerent attitude toward the police officer, which was observable on the videotape. We have little hesitation in concluding the jury in this case would have convicted the defendant even without the test result. Therefore, we conclude the erroneous admission of the breath alcohol test result was harmless as it related to the conviction for DUI by impairment. See Tenn.R.App.P. 36(b).
III. THE ADMISSIBILITY OF THE VIDEOTAPE
Officer Copley testified that after he turned off the videotape recorder, the defendant began cursing at him. The defendant continued to curse at him as he was driving to the police station, so the officer reactivated the videotape recorder. The videotape shows that for approximately twenty minutes, the defendant continuously cursed at Officer Copley, threatened him, made numerous racist remarks, and told him that he hoped the officer died of AIDS. The defendant's relentless twenty-minute tirade can best be described as containing virtually any and all vile and vicious comments one could imagine. The officer's restraint in tolerating this verbal assault is indeed remarkable.
The defendant contends the trial court erred in admitting this portion of the videotape. The defendant argues it is irrelevant, and that its probative value is substantially outweighed by the danger of unfair prejudice. We disagree.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401. Once the court concludes the evidence is relevant, the court should exclude the evidence if its probative value is substantially outweighed by its prejudicial effect. Tenn. R. Evid. 403; State v. James, 81 S.W.3d 751, 757 (Tenn. 2002). A trial court's decision as to the relevance of evidence under Rule 401 will be reversed only upon a showing of abuse of discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).
The videotape is relevant to show that the defendant was impaired. Unquestionably, the videotape was prejudicial to the defendant, as is most evidence introduced by the prosecution. The issue, however, is whether it was unduly or unfairly prejudicial. Although the defendant testified he drank five beers in approximately one hour just before being stopped, he stated he was not impaired. The defendant's profane and wicked rantings as portrayed on the videotape arguably show otherwise. It was for the jury to weigh this evidence in light of the defendant's insistence that he was not impaired. The probative value in playing this portion of the videotape before the jury was not substantially outweighed by its danger of unfair prejudice. See Tenn. R. Evid. 403. Therefore, we conclude the trial court did not abuse its discretion in permitting the jury to view this portion of the videotape.
IV. SENTENCING
The defendant argues his sentence of thirty days incarceration is excessive. We disagree.
Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302, which provides in part that the trial court shall impose a specific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. State v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). Misdemeanor sentencing is designed to provide the trial court with continuing jurisdiction and a great deal of flexibility. State v. Baker, 966 S.W.2d 429, 434 (Tenn.Crim.App. 1997). One convicted of a misdemeanor, unlike one convicted of a felony, is not entitled to a presumption of a minimum sentence. State v. Humphreys, 70 S.W.3d 752, 768 (Tenn.Crim.App. 2001).
The statutes in effect at the time of this offense established eleven months and twenty-nine days as the maximum sentence allowed for anyone convicted of DUI. Tenn. Code Ann. § 55-10-403(a)(1) (1997). Subsection (c) provides that DUI offenders are "required to serve the difference between the time actually served and the maximum sentence on probation." Id. § 55-10-403(c).
In sentencing the defendant to thirty days incarceration, the trial court considered the defendant's crude and obnoxious treatment of Officer Copley. The trial court characterized the defendant's behavior as "cruel," revealing that he had "absolutely no respect for the law." The trial court also considered the defendant's prior criminal record. The defendant had a prior conviction for escape from a police officer and two convictions for malicious mischief.
The trial court expressed its concern regarding the defendant's chances of a successful rehabilitation. The trial court did not believe the defendant could be successfully rehabilitated due to "his attitude problems about the justice system and him [sic] thinking this is no big thing." The trial court also found confinement was necessary in order to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B) (1997).
At the time of his arrest and throughout the trial, the defendant expressed his disrespect for the law and the justice system. While being driven to the police station, the defendant continuously cursed, demeaned, and threatened Officer Copley. During the trial, the trial court found him in contempt twice for his remarks during the officer's testimony. Furthermore, during the sentencing hearing, the defendant characterized the circumstances surrounding his conviction as a "little incident."
In addition, less restrictive measures have been unsuccessfully applied to the defendant. See Tenn. Code Ann. § 40-35-103(1)(C) (1997). The defendant has received probation in the past; yet, he has continued to violate the law. We conclude the defendant's sentence for the DUI conviction is in no way excessive.
V. CONCLUSION
In summary, we conclude the defendant's conviction and sentence for DUI by impairment should be affirmed. We remand to the trial court for entry of an order vacating the guilty verdict for DUI per se.