State v. Mark Scisney ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
October 16, 1997
STATE OF TENNESSEE, ) Cecil W. Crowson
) Appellate Court Clerk
Appellee, ) C.C.A. No. 01C01-9605-CC-00209
)
VS. ) Coffee County
)
MARK T. SCISNEY, ) Hon. Gerald L. Ewell, Sr., Judge
)
Appellant. ) (DUI While Driving Commercial Vehicle)
DISSENTING OPINION
My learned colleague, Judge W oodall, presents an excellent, comprehensive
analysis of the law relating to blood alcohol concentrations; however, I respectfully
disagree with the conclusion that an Intoximeter 3000 reading of .04, which can result
from actual concentrations ranging from .035 to .054, is sufficient to establish beyond
a reasonable doubt a violation of the .04 statute. I agree with Judge Tipton’s
conclusion that the Intoximeter 3000 reading of .04 is insufficient, by itself, to prove
beyond a reasonable doubt that the defendant was driving with a .04 blood alcohol
concentration; however, I respectfully disagree with the conclusion that this reading,
combined with other evidence in this case, is sufficient to establish guilt.
The analysis of Tenn. Code Ann. 55-50-408 is simple from my perspective.
A violation of this statute requires “a blood alcohol concentration of point zero four
(.04) or more...” We should look to the statute itself and rely, when possible, upon
the ordinary meaning of its language and terms used, refraining from any forced or
subtle construction to limit or extend the statute’s meaning. State v. Smith, 893
S.W.2d 908, 917 (Tenn. 1994), cert. denied 116 S.Ct. 99, 133 L.Ed. 2d 53 (1995).
The state’s expert witness testified that the acceptable tolerance of the
Intoximeter 3000 is plus or minus .005. Therefore, as Judge Woodall correctly
concedes, a .04 reading could result from an actual blood alcohol concentration
ranging from .035 to .054.1 In other words, there is a twenty-five percent (25%)
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In fact, the October 25th .025 standard test on this machine read high.
statistical chance this defendant had an actual blood alcohol concentration below .04.
To me, .04 means .04 and not .039 or below. Considering the tolerance, it is simply
impossible to conclude beyond a reasonable doubt that the defendant had an actual
blood alcohol concentration of .04 or more.
This scenario is no different than placing twenty (20) people in a room, fifteen
(15) of whom are named “John” and five (5) of whom are named “Joe.” A random
selection of one of those persons could not establish beyond a reasonable doubt that
such person’s name is “John” simply because there is a seventy-five percent (75%)
statistical probability that his name is “John.” “Reasonable doubt” is simply not
subject to such a mathematical analysis.
The concurring opinion concludes that evidence that defendant had a couple
of tall beers in Georgia several hours earlier, smelled of alcohol upon his arrest in
Coffee County, and was properly administered the intoximeter test, coupled with the
reading of .04, is sufficient to establish beyond a reasonable doubt that the defendant
had an actual blood alcohol concentration of .04 or more. I am unable to make such
a leap. The record does not suggest that such facts make the defendant any more
or less likely to have a reading of .04 or more as opposed to .039 or less.
Defendant has lost in a game of chance. At best, we can say the “odds are”
that he was .04 or more. “Odds are” is insufficient to establish proof beyond a
reasonable doubt. I respectfully dissent.
JOE G. RILEY, JUDGE
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