Ray v. State , 1977 Tenn. Crim. App. LEXIS 264 ( 1977 )

DUNCAN, Judge.

OPINION

At a bench trial in the Knox County Criminal Court, the defendant, Jimmy A. Ray, was found guilty of reckless driving. The defendant went to trial on a warrant which charged him with operating a motor vehicle while under the influence of an intoxicant (D.U.I.). He was acquitted of this offense, but the court allowed the warrant to be amended to charge the offense of reckless driving. The defendant argues that the court erred in allowing this amendment to the warrant. We agree.

The State argues that the reckless driving conviction should be allowed to stand, insisting that reckless driving is a lesser included offense of D.U.I. We are unable to accept the State’s proposition on this point.

The elements of D.U.I. are: (1) driving or being in physical control of a motor vehicle, (2) upon a public thoroughfare, (3) while under the influence of an intoxicant or narcotic drug. See T.C.A. § 59-1031.

The elements of reckless driving are: (1) driving a vehicle, (2) in willful or wanton disregard for the safety of persons or property. See T.C.A. § 59-858(a). In Burgess v. State, 212 Tenn. 315, 369 S.W.2d 731 (1963), the court said:

Since the passage of the 1955 Act, willful or wanton disregard for the safety of persons or property is made the essential element of the offense of reckless driving. Willful or wanton disregard for the safety of persons or property is more than merely driving at a speed or in a manner so as to endanger or be likely to endanger the life, limb or property of any person. 212 Tenn. at 318, 369 S.W.2d at 732.

In Wright v. State, 549 S.W.2d 682 (Tenn.1977), our Supreme Court considered two tests for determining whether an offense is a lesser included offense of another.

The court recognized that one valid test was:

. the lesser included offense must be such that it is impossible to commit the greater without first having committed the lesser. 549 S.W.2d at 685.

The court further suggested that a better test was the following:

The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter, so that to prove the greater the State must first prove the elements of the lesser. 549 S.W.2d at 685-86.

The reckless driving element of “willful or wanton disregard for the safety of persons or property” is not a necessary or required element of D.U.I., and there is no requirement that the State must- prove the elements of reckless driving to sustain a conviction for D.U.I.

Under the statute prohibiting the driving or operating of a motor vehicle while under the influence of an intoxicant, it is not even necessary to show that the vehicle was in motion or that the engine was running at the time. Bradam v. State, 191 Tenn. 626, 235 S.W.2d 801 (1950). Obviously, the same thing cannot be said about the offense of reckless driving.

The only logical conclusion that can be drawn from Usary v. State, 172 Tenn. 305, 112 S.W.2d 7 (1937) is that D.U.I. does not include the offense of reckless driving. That case involved a prosecution on a two-count indictment, the first count charging D.U.I., and the second count charging reckless driving. The jury acquitted the defendant on the D.U.I. count, disagreed on the reckless driving count, and a mistrial on that count was declared. If reckless driving had been a lesser included offense of D.U.I., then an acquittal of Usary of D.U.I. would necessarily have carried with it an acquittal of reckless driving; however, the court obviously recognized that reckless driving was not a lesser included offense of D.U.I. and that the two offenses were separate and distinct, because the court held that a subsequent trial on the reckless driving count was proper and was not subject to a plea of former jeopardy.

Therefore, considering the difference in the elements of reckless driving and D.U.I., and applying these elements to the tests enunciated in Wright v. State, supra, we hold that reckless driving is not a lesser included offense of D.U.I. Thus, it necessarily follows that the court erred in allowing the warrant to be amended to charge reckless driving. This was an additional and separate offense and, in the absence of the defendant’s consent, such amendment was not authorized by law. Murff v. State, 221 Tenn. 111, 425 S.W.2d 286 (1967).

The defendant’s innocuous complaints about not being afforded a court reporter at the expense of the State, and about not being provided with a breath sample for testing purposes are of no significance. This record is before us on an adequate narrative bill of exceptions, and the defendant was acquitted of the charge of D.U.I. We overrule those complaints. However, for the reasons stated, we sustain the defendant’s complaint that he cannot be found guilty of reckless driving in this D.U.I. prosecution.

We reverse the defendant’s conviction and the case is dismissed.

BYERS, J., concurs.