State v. Cooley

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE 1997 SESSION
March 26, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellant, ) No. 03C01-9701-CR-00009
)
) Bradley County
v. )
) Honorable James C. Witt, Judge
)
BERLIN COOLEY, JR., ) (Driving under the influence, fourth
) offense)
Appellee. )
For the Appellant: For the Appellee:
Charles W. Burson Kenneth L. Miller
Attorney General of Tennessee P.O. Box 191
and Cleveland, TN 37364-0191
Michael J. Fahey, II
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
and
Rebble S. Johnson
Assistant District Attorney General
203 E. Madison Avenue
Athens, TN 37303-0647
OPINION FILED:____________________
REVERSED AND REMANDED
Joseph M. Tipton
Judge
OPINION
The state of Tennessee appeals as of right from the Bradley County
Criminal Court’s dismissal of a case primarily charging the defendant, Berlin Cooley, Jr.,
with driving under the influence (DUI), fourth offense. The trial court ruled that further
prosecution after the defendant was held for eight hours without bond at the time of his
arrest would be in violation of the Double Jeopardy Clause. The state contends that the
trial court erred in that the eight-hour detention did not constitute punishment for double
jeopardy purposes and that, in any event, the detention was not for the same conduct
for which he was arrested and charged. Pursuant to the holding in State v. Pennington,
952 S.W.2d 420 (Tenn. 1997), we are required to reverse the trial court and remand the
case.
The record on appeal contains sparse evidence of what occurred in the
trial court in this case. It shows that the defendant was charged in one indictment with
DUI, fourth offense, driving with a suspended or revoked license, and driving with
improper motor vehicle registration. The remaining relevant facts are contained in the
trial court’s dismissal order as follows:
Upon considering the stipulations of the State and the
defendant, the Court finds that the defendant, Berlin Cooley,
upon his arrest, was held for a period of eight (8) hours, before
he was allowed to make bond. The Court further finds that the
Bradley County Sheriff’s Department holds all persons
arrested for D.U.I. for this eight-hour period, pursuant to a
“blanket policy.” No individual determination is made as to
whether it is safe to release an individual, prior to expiration of
the eight-hour period, nor likewise whether it is unsafe to
release an individual at the end of eight hours. The Court finds
that defendant Berlin Cooley’s sister arrived at the jail
approximately one (1) hour after the defendant’s arrest, with a
bondsman, to post bail, and was told to come back in seven
(7) hours. According to the stipulation, defendant’s sister is a
reliable and responsible person to have taken custody of
defendant. The Court further finds that defendant’s automobile
had been towed and impounded.
Based upon the above stipulations and findings of fact
and pursuant to State v. Pennington, No. 01C01-9307-PB-
2
00219, Court of Criminal Appeals of Tennessee, at Nashville,
1996 WL 38107 (Tenn. Crim. App. 1996), the Court is of the
opinion that such “blanket” holding period is punitive in nature,
unless decided upon a case by case basis by an impartial
magistrate. Since the defendant has already been punished,
it would be a violation of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution, as well as
a violation of Article 1, Section 10, of the Tennessee
Constitution to now try him upon this cause.
The trial court’s holding is consistent with the holding of the trial court in Pennington that
was affirmed by this court.
In Pennington, the trial court dismissed a DUI and driving with a revoked
license indictment. The trial court concluded that Pennington’s detention under a local
policy of holding a DUI arrestee for twelve hours if he or she refused a breath-alcohol
test implicated the right against double jeopardy regarding any further prosecution.
However, our supreme court reversed the trial court and this court in
Pennington and reinstated the charges. It concluded that Pennington’s detention for
safety reasons was based upon a remedial purpose and not a punitive one. Therefore,
it held that the double jeopardy clause did not bar further prosecution after the twelve-
hour detention. Pennington, 952 S.W.2d at 423. Also, it stated that the detention could
not, in any event, be construed as punishment for the DUI, given the fact that it
occurred only upon a refusal to take a breath test. Id.We infer from the record in the present case that the policy was in place
for safety reasons. We also believe that the trial court’s concerns dealt with, in part,
the fact that persons who were not safety risks were being held for the same period of
time when they were arrested for DUI. In this respect, we understand that concerns
about the rights to bail, equal protection, and due process may be warranted,
particularly in the context of whether the detention, i.e., loss of liberty, of all DUI
arrestees for eight hours is sufficiently tailored to meet the legitimate government
3
interest at stake without unduly intruding upon a fundamental right. However, as our
supreme court indicated in Pennington, any such concerns do not implicate the Double
Jeopardy Clause so as to bar further prosecution. 952 S.W.2d at 423.
In consideration of the record before us and the existing case law, we
conclude that the state may proceed with the charges against the defendant. The
judgment of the trial court is reversed and the case is remanded for further action as
warranted.
_____________________________
Joseph M. Tipton, Judge
CONCUR:
_______________________
John H. Peay, Judge
________________________
Curwood Witt, Judge
4