State of Tennessee v. Danny Munson - Concurring

Court of Criminal Appeals of Tennessee

State of Tennessee v. Danny Munson - Concurring

CourtCourt of Criminal Appeals of Tennessee

DecidedDecember 31, 2001

DocketW2001-00151-CCA-R9-CD

StatusPublished

This text of State of Tennessee v. Danny Munson - Concurring (State of Tennessee v. Danny Munson - Concurring) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State of Tennessee v. Danny Munson - Concurring, (Tenn. Ct. App. 2001).

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Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 6, 2001 Session

STATE OF TENNESSEE v. DANNY MUNSON

Interlocutory Appeal from the Criminal Court for Shelby County No. 00-01541 Joseph B. Dailey, Judge

No. W2001-00151-CCA-R9-CD - Filed December 31, 2001

JOE G. RILEY, J., concurring.

I concur with the result reached by the majority and consider this case distinguishable from Scisney. In Scisney, Judge Tipton and I, in separate opinions, concluded an intoximeter reading of .04%, by itself, was insufficient to establish “beyond a reasonable doubt” that the blood alcohol concentration was, in fact, .04%. See State v. Mark T. Scisney, C.C.A. No. 01C01-9605-CC-00209, 1997 WL 634515, at *9-11 (Tenn. Crim. App. Oct. 16, 1997, at Nashville). This was because there was a 25% chance that the actual level was below .04% due to the margin of error. Id.

In the case at bar, the blood alcohol level is not an element of the offense requiring proof beyond a reasonable doubt as was the case in Scisney. Here, it is only necessary to establish this sentencing enhancement by a preponderance of the evidence.

Although I do not necessarily agree that the legislature was aware of the margin of error in breathalyzer results, I do believe a trial judge could conclude by a preponderance of the evidence that a .20% test result from a properly administered test satisfies this enhancement provision.

___________________________________ JOE G. RILEY, JUDGE

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 6, 2001 Session

STATE OF TENNESSEE v. DANNY MUNSON

Interlocutory Appeal from the Criminal Court for Shelby County No. 00-01541 Joseph B. Dailey, Judge

No. W2001-00151-CCA-R9-CD - Filed December 31, 2001

JOE G. RILEY, J., concurring.

I concur with the result reached by the majority and consider this case distinguishable from Scisney. In Scisney, Judge Tipton and I, in separate opinions, concluded an intoximeter reading of .04%, by itself, was insufficient to establish “beyond a reasonable doubt” that the blood alcohol concentration was, in fact, .04%. See State v. Mark T. Scisney, C.C.A. No. 01C01-9605-CC-00209, 1997 WL 634515, at *9-11 (Tenn. Crim. App. Oct. 16, 1997, at Nashville). This was because there was a 25% chance that the actual level was below .04% due to the margin of error. Id.

In the case at bar, the blood alcohol level is not an element of the offense requiring proof beyond a reasonable doubt as was the case in Scisney. Here, it is only necessary to establish this sentencing enhancement by a preponderance of the evidence.

Although I do not necessarily agree that the legislature was aware of the margin of error in breathalyzer results, I do believe a trial judge could conclude by a preponderance of the evidence that a .20% test result from a properly administered test satisfies this enhancement provision.

___________________________________ JOE G. RILEY, JUDGE

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State of Tennessee v. Danny Munson - Concurring, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-tennessee-v-danny-munson-concurring-tenncrimapp-2001.