State of Tennessee v. Sean W. Conway

The defendant was indicted for driving under the influence (DUI), driving while his alcohol concentration was .10% or more (DUI per se), and DUI, second offense. After a jury trial on DUI and DUI per se, the jury acquitted the defendant of DUI and was unable to reach a verdict on DUI per se. A second trial was held, and the jury convicted the defendant of DUI per se. The trial judge then found this conviction to be a second offense. In this appeal, the defendant alleges (1) the defendant's retrial for DUI per se violated the principles of double jeopardy; (2) the trial court erroneously admitted the results of the breath test and related evidence; (3) the trial court erroneously admitted testimony of the arresting officer concerning his encounters with other motorists charged with DUI; (4) the trial court improperly considered a prior conviction for enhancement of the defendant's sentence; and (5) the trial judge erroneously failed to recuse himself. Upon review of the record, we reduce the defendant's conviction to DUI, first offense, remand for resentencing, and affirm the trial court in all other respects.