State v. Overstreet

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED APRIL SESSION, 1998 December 15, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00248 )

Appellee, )

)

) BRADLEY COUNTY

VS. )

) HON. R. STEVEN BEBB

STEVEN OVERSTREET, ) JUDGE )

Appe llant. ) (Direct Ap peal-D .U.I.)

FOR THE APPELLANT: FOR THE APPELLEE:

D. MITCHELL BRYANT JOHN KNOX WALKUP P. O. Box 161 Attorney General and Reporter Cleveland, TN 37364-0161 SANDY C. PATRICK

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243

JERRY N. ESTES

District Attorney General

JOSEPH A. REHYANSKY

Assistant District Attorney P. O. Box 1351

Cleveland, TN 37311

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

On Febru ary 4, 1 997, a Brad ley Co unty jur y conv icted A ppella nt Steven Overstreet of driving under the influence, second offense. After a sentencing hearing on Fe bruar y 6, 199 7, App ellant was sentenced to eleven months and twenty-nine days in jail, with the sentence to be suspended and Appellant put on probation after 45 days in jail. Appellant challenges his conviction, raising the following issue: is there an inherent conflict between Tennessee Code Annotated sections 55-10-401 and 55-10-408.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

On November 13, 1996, Appellant was indicted for driving under the influence, second offense.1 Count One of the indictment charged Appellant with driving under th e influenc e of an into xicant or dr ug; or in the alternative, w ith driving with a blood-alcohol content of .10% or more. Appellant pleaded not guilty to this ch arge, an d trial was h eld on F ebruary 7, 1997 .

Officer Chris Bates of the Cleveland, Tennessee Police Department testified that aro und 6 :30 a.m . on Ju ly 6, 199 6, he a nd O fficer Budd y Mitch ell were at a Cleve land con venienc e store w hen he saw a w hite Ford Tempo speed into the parking lot and come to a sudden stop. Officer Bates testified that when

1 Appellan t was also indicted for driving on a revoke d license . Appellant e ntered a guilty plea to that charge and he does not challenge his conviction or sentence for that offense.

3

Appellant got out of his car, he had to steady himself against the vehicle and he had a look of con fusion abou t him. O fficer M itchell re cogn ized A ppella nt and said that he knew that Appellant’s drivers’ license had be en revok ed. When the two officers approached Appellant, the y sme lled a st rong o dor of a lcoho l on his breath and person. When the officers asked Appellant whether he had been drinking, he said that he had four beers and a glass of champagne the night before. The officers then verified that Appellant’s drivers’ license had been revoked .

Officer Bates then a dmin istered three fie ld sobriety tests to Appe llant.

After Appellant failed at least two of these tests,2 Officer Bates asked Appellant to take a either a breath or blood test. Appellant agreed to take a blood test, and the officers transported him to an emergency room for testing. The blood test indicated that App ellant had a blood- alcoho l content o f .12%.

Officer Bates also testified that during a search of Appellant’s car, he found two em pty beer c ans tha t felt cold and had de w on the m.

Appellant testified that he had consumed the alc ohol the night before he was arrested . Appellant claimed that he did not feel impaired when he dro ve his car on the morning of on July 6, 1996, and he stated that he felt he had passed the field sobriety tests. Appellant did not challenge the accuracy of the blood test results.

2 Officer Bates did not testify about the results of the third test during either direct or crossexamination .

4

ANALY SIS

Appellant contends that his conviction for driving under the influence shou ld be reversed because Tennessee Code Annotated sections 55-10-401 and 55-10-408 are im perm issibly contradictory and therefo re, can not co nstitutio nally coexist. Se ction 55-1 0-401 s tates, in relev ant part,

It is unlawful for any pe rson to d rive or to be in physica l control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is genera lly frequented by the public at large, while:

(1) Under the influence of any intoxic ant, marijuana, narcotic drug, or drug pro ducing stimulatin g effects on the central nervous system;

or

(2) The alcoh ol conce ntration in s uch pe rson’s blo od or bre ath is ten-hundredths of one percent (.10%) or more.

Tenn. Code Ann. § 55-10-401(a) (1998). Section 55-10-408 states, in relevant part,

For the purpose of proving a violation o f § 55-10-401(a)(1), evidence that there was, at the time alleged, ten-hundredths of one percent (.10%) or more by weig ht of alc ohol in the de fenda nt’s blo od shall create a presumption that the de fendan t’s ability to drive was sufficiently impaired thereby to cons titute a violation of § 55-10-4 01(a)(1).

Tenn. Code Ann. § 55-10-408(a) (1998). Essentially, Appellant claims that these two statutes give rise to different legal conclusions and, thus, the trial court shou ld have charged the jury only on section 55-10-408, thereby giving him the opportunity to rebut the presumption of his intoxication.3

3 The reco rd ind icate s tha t the tr ial cou rt instr ucte d the jury tha t they c ould f ind A ppe llant g uilty if they found beyond a reasonable doubt that 1) he had been driving with a blood-alcohol content of .10% or more, or 2) he had been driving under the influence of an intoxicant or drug. The court also instructed the jury that evidence of a blood-alcohol content of .10% or more created a presumption that Appellant was under th e influenc e of an into xicant or d rug, but the y were free to disrega rd that pre sum ption.

5

An analysis of the recent history of these two statutes indicates that they are not contradictory. Prior to 1995, section 55-10-401(a) stated,

It is unlawful for any person or persons to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state of Tenn essee, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is generally frequented by the public at large, while under the influence of any intoxicant, marijuana, narco tic drug, or drug producing stimulating effects on the central nervous system.

Tenn. Code Ann. § 55-10-401(a) (1994). In addition, section 55-10-408(b) stated that

Evidence that there was, at the time alleged, ten-hundredths of one percent (.10% ) or more by weig ht of alc ohol in the de fenda nt’s blo od sh all create a presumption that the defendant was under the influence of such intoxicant, and that the de fendan t’s ability to drive was imp aired thereby, sufficiently to constitute a violation of § 55-10-401. The provisions of this subsection shall only a pply if the de fendan t has no prior convictions for violating the provisions of § 55-10-401.

Tenn. Code Ann. § 5 5-10-40 8(b) (199 4). In 1995 , the Tennessee General Assembly amended section 55-10-408(a) to provide that

Evidence that the re was , at the tim e alleged, ten-hundredths of one percent (.10% ) or more by weight of alcohol in the defen dant’s blood shall be conclusive proof that the defendant was under the influence of such intoxicant, that the de fendan t’s ability to drive was impaired thereby and shall con stitute a violatio n of § 55- 10-401 .

Tenn. Code Ann. § 55-10-408(a) (1995). The Tennessee Attorney General subs eque ntly issued an opinion which stated that this 1995 amendment was unconstitutional because it created a conclusive presumption of intoxication and impairment that relieved the State of its burden of proving an element of the offense. Tenn. Op. Att’y Gen. 95-117 (Nov. 28 , 1995). The opinion suggested, however, that the legislature could achieve the same result by m aking it illega l to drive with a b lood-alco hol conte nt above a certain p ercenta ge. Id.

6

In response to the Attorney General’s opinion, the legislature drafted a proposed amen dmen t, which would have essentially given section 55-10-401 its current form and would have deleted section 55-10-408(a). The Attorney General subsequently issued an opinion which stated that the proposed section 55-10-401 would be co nstitutional in that it would m ake it illegal to either drive while under the influence of an intoxicant or with a blood-alcohol content of .10% or greater. Tenn. Op. Att’y Gen. 96-008 (Jan. 24, 1996). The opinion suggested, however, that it would be unwise to delete se ction 55-10-40 8(a) in its entirety. Id. The opinion suggested that it would be better to have a subsection creating a permissive presumption of intoxication when a driver had a blood-alcohol content of .10% or greater because such a presumption would aid in defining “under the influence” as set forth in section 5 5-10-40 1(a)(1). Id. The legislature subs eque ntly amended sections 55-10-401 and 55-10-408 to their present forms.

This statutory history indicates that in enacting sections 55-10-401 and 55-

10-408 in their c urren t forms , the leg islature did no t create two co ntradic tory statutes. Rather, the legislature merely created alternative ways to charge a defendant with impaired driving. A defendant could be charged under 55-10- 401(a)(2), in which case a test indicating a blood-alcohol content of .10% or greater would b e per se evidenc e of intoxica tion and im pairme nt. If however, the charging instrument failed to specifically charge the elements of 55-10-401 (a)(2), the permissive presump tion of sec tion 55-1 0-408(a ) would c ome in to play to assist in establishing intoxication and im pairm ent. T his conclusion is supported by the exp ress la ngua ge of 5 5-10- 408(a ), which indica tes tha t it is admissible for “the purpose of proving a violation of § 55-10-401(a)(1)” and makes no mention of subse ction (a)(2 ).

7

In short, we hold tha t sections 55-10 -401 and 5 5-10-408 a re not unconstitutionally contradictory. 4 Further, because Appellant was charged alternativ ely under both subsection 55-10-401(a)(1) and subsection 55-10- 401(a)(2), the trial court was correct when it instructed the jury on bo th subsections. The S tate presented evidence that Ap pellan t had b een d riving his vehicle with a blood-alcohol content of .12% and Appellant never challe nged this evidence. Thus, the jury clearly had a basis for convicting Appellant under subsection 55-10 -401( a)(2). A ppella nt’s claim that he was n ot imp aired is simp ly not releva nt unde r this subs ection. T his issue is without m erit.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

JAMES CURWOOD WITT, JR.

4 Although Appellant does not directly challenge the constitutionality of section 55-10-401(a)(2)

itself, we no te that cou rts have c onsisten tly held that “per s e blood-a lcohol offe nse sta tutes” do not crea te uncon stitutional pre sum ptions ab out eviden ce, but ins tead sp ecifically define prohibited c onduc t. See Lester v. S tate, 253 G a 235, 32 0 S.E.2d 142 (19 84); People v. Ziltz, 98 Ill. 2d 38, 455 N.E.2d 70 (1983); State v. Vogel, 467 N.W .2d 86 (N .D. 1991 ); State v. O’Connor, 220 N.J. Super. 104, 531 A.2d 741 (1984); Forte v. State, 707 S.W .2d 89 (T ex. Crim . App. 198 6).