State v. Overstreet ( 1998 )

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.
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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 cross-
examination.
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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.
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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.
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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 ).
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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).
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