State v. Mark Spencer King

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1997 SESSION
September 18, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE,
APPELLEE, )
) No. 01-C-01-9608-CR-00343
)
) Putnam County
v. )
) John A. Turnbull, Judge
)
) (Driving While Under the Influence)
MARK SPENCER KING, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jacky O. Bellar John Knox Walkup
Attorney at Law Attorney General & Reporter
212 Main Street 500 Charlotte Avenue
Carthage, TN 37030 Nashville, TN 37243-0497
J. Branden Bellar Janis L. Turner
Attorney at Law Assistant Attorney General
212 Main Street 450 James Robertson Parkway
Carthage, TN 37030 Nashville, TN 37243-0493
William A. Gibson
District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
William S. Roberson
Assistant District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
OPINION FILED:____________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Mark Spencer King (defendant), was convicted of driving while under
the influence (DUI) following a bench trial. The sole issue which this Court must resolve
is whether evidence of the chemical breath test should have been admitted into evidence.
The defendant argues this evidence should not have been introduced because the 1995
amendment to Tenn. Code Ann. § 55-10-408(b), which rendered the statute
unconstitutional, was in effect at the time he was arrested. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issue presented for
review, it is the opinion of this Court that the judgment of the trial court should be affirmed.
The defendant moved the trial court to exclude as evidence the results of the
chemical breath test. The test revealed the defendant had a blood alcohol content of
.14%. The trial court agreed with the defendant that Tenn. Code Ann. § 55-10-408, as
amended in 1995, was unconstitutional. However, the court concluded it could apply the
standard contained in the statute before the amendment. Thus, the court dismissed the
defendant’s motion to suppress, and the test results were introduced into evidence over
the defendant’s strenuous objection.
I.
A review of the initial statutory provisions, the amendments to the statute, and the
effect of the changes are relevant to the inquiry.
Prior to 1995, Tenn. Code Ann. § 55-10-408(b) stated:
Evidence that there was, at the time alleged, ten-hundredths
of one percent (.10%) or more by weight of alcohol in the
defendant’s blood shall create a presumption that the
defendant was under the influence of such intoxicant, and that
defendant’s ability to drive was impaired thereby, sufficiently to
constitute a violation of § 55-10-401.1
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The United States Supreme Court and the appellate courts of this state have held
that the word “presumption” should not be used in jury instructions. The word “inference”
should be used instead. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d
39 (1979); State v. Coker, 746 S.W.2d 167, 170 (Tenn. 1987), cert. denied, 488 U.S. 871,
109 S. Ct. 180, 102 L. Ed. 2d 149 (1988).
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In 1995 the Tennessee General Assembly amended Tenn. Code Ann. § 55-10-408.
The statute, as amended, stated:
Evidence that there was, at the time alleged, ten hundredths
of one percent (.10%) or more by weight of alcohol in the
defendant’s blood shall be conclusive proof that the defendant
was under the influence of such intoxication, that the
defendant’s ability to drive was impaired thereby and shall
constitute a violation of § 55-10-401.
1995 Tenn. Pub. Acts, Ch. 517, § 1.
This amended statute became effective on July 1, 1995. It was in effect when the
defendant was arrested on November 12, 1995. The Attorney General subsequently
rendered an opinion which stated the “conclusive proof” provision of the statute rendered
the statute unconstitutional. Tennessee Attorney General Opinion 95-117 (November 28,
1995).
The Tennessee General Assembly amended the 1995 Act in 1996. This
amendment returned the statute to its status prior to the 1995 amendment. 1996 Tenn.
Pub. Acts, Ch. 915, §§ 2, 3. The 1996 Act became effective upon its passage. The Act
was passed by the Tennessee General Assembly on April 24, 1996. Governor Sundquist
signed the Act on May 8, 1996.
II.
The trial court was correct in finding the 1995 Act was unconstitutional. The court
was also correct in applying the act in existence prior to the 1995 Act. Therefore, the trial
court properly admitted the results of the chemical breath test, and treated the results as
an inference that the defendant’s ability to operate a motor vehicle was impaired pursuant
to Tenn. Code Ann. §§ 55-10-401, et. seq.
In this jurisdiction, an unconstitutional statute or an amendment to a constitutional
statute is void ab initio -- from the date of its enactment. State v. Driver, 598 S.W.2d 774,
776 (Tenn. 1980); Leech v. American Booksellers Ass’n, Inc., 582 S.W.2d 738, 740 (Tenn.
1979); State v. Dixon, 530 S.W.2d 73, 74 (Tenn. 1975). Therefore, the unconstitutional
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provision does not have the effect of amending or superseding the existing constitutional
statute. Id. In other words, the prior constitutional statute is unaffected by the effort to
amend or supersede the statute, and it remains in full force and effect.
_______________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
WILLIAM M. BARKER, JUDGE
______________________________________
THOMAS T. WOODALL, JUDGE
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