FILED

February 25, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY 1997 SESSION

STATE OF TENNESSEE, )

) NO. 03C01-9604-CC-00149

Appellee, )

) UNICOI COUNTY

VS. )

) HON. ARDEN L. HILL,

BENJAMIN D. CRAIN, ) JUDGE

)

Appellant. ) (Driving While Impaired - 

 ) Constitutionality)

FOR THE APPELLANT:

DAVID F. BAUTISTA

District Public Defender

STEVE F. McEWEN

Assistant Public Defender

142 East Market

P. O. Box 996

Johnson City, TN 37605-0996

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

WILLIAM DAVID BRIDGERS

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

DAVID E. CROCKETT

District Attorney General

LISA D. NIDIFFER

Assistant District Attorney General

Unicoi County Courthouse

Erwin, TN 37650

OPINION FILED: 

AFFIRMED AS MODIFIED

JERRY L. SMITH,

JUDGE
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O P I N I O N

Defendant, Benjamin D. Crain, pled guilty to driving while impaired and

reserved for appellate purposes the issue of whether the driving while impaired

statute is unconstitutional. We find the statute to be constitutional. 

PROCEDURAL HISTORY

Defendant, age 19, was involved in an automobile accident. Upon being

taken to a hospital for a blood analysis, he registered .08% blood alcohol content.

After being indicted for the offense of driving while impaired pursuant to

Tenn. Code Ann. § 55-10-415, defendant moved to dismiss the indictment alleging

the unconstitutionality of the statute. Upon the motion to dismiss being overruled

by the trial court, defendant then entered a plea of guilty and was fined $250,

received a license revocation for one (1) year and was ordered to complete 20

hours of public service work. With the consent of the trial court and state,

defendant reserved the right to appeal the constitutionality issue as a certified

question of law that is dispositive of the case. See Tenn. R. Crim. P. 37(b)(2)(i). 

EQUAL PROTECTION

The sole issue presented in this appeal is whether the driving while impaired

statute, Tenn. Code Ann. § 55-10-415, violates the defendant’s equal protection

rights under the United States Constitution and the Tennessee Constitution. More

specifically, the defendant argues that subjecting adults ages 18 to 21 to sanctions

based upon .02% blood alcohol content while not subjecting adults ages 21 and

older to the same sanctions violates his rights to equal protection.

Both the United States Constitution and the Tennessee Constitution

guarantee to citizens the same basic right to equal protection of the laws. Brown

v. Campbell County Bd. of Educ., 915 S.W.2d 407, 412-413 (Tenn. 1995), cert.

denied, 116 S.Ct. 1852 (1996). The concept of equal protection under both
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Constitutions guarantees that “all persons similarly circumstanced shall be treated

alike.” Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, 153

(Tenn. 1993) (quoting F. S. Royster Guano Co. v. Commonwealth of Virginia, 253

U.S. 412, 415 (1920). 

Tennessee has consistently followed the framework developed by the United

States Supreme Court, which applies one of three standards of scrutiny: 1) strict

scrutiny, 2) heightened scrutiny, and 3) reduced scrutiny or the rational basis test.

Riggs v. Burson, 941 S.W.2d 44, 52 (Tenn. 1997). Strict scrutiny analysis is

required when the legislative classification interferes with the exercise of a

“fundamental right” or operates to the peculiar disadvantage of a “suspect class.”

State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905, 911 (Tenn. 1996). 

The defendant does not contend that adults ages 18 to 21 are a “suspect

class.” Suspect classifications are race, alienage, national origin, and sex. KingBradwell Partnership v. Johnson Controls, Inc., 865 S.W.2d 18, 21 (Tenn. App.

1993). Heightened review has not been extended to differential treatment based

on age. Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87

L.Ed.2d 313 (1985); Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 858

(Tenn. 1996). 

Nevertheless, strict scrutiny of a legislative classification applies when the

classification interferes with a “fundamentalright.” Massachusetts Bd. of Retirement

v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Civil

Service Merit Bd. v. Burson, 816 S.W.2d 725, 733 (Tenn. 1991). The punishment

for driving while impaired for a person age 18 or over but under age 21 is “only by

a driver license suspension of one (1) year and by fine of Two Hundred Fifty Dollars

($250.00). As additional punishment, the court may impose public service work.”

Tenn. Code Ann. § 55-10-415(d). A driver’s license is not a fundamental right. See

State v. Conley, 639 S.W.2d 435, 437 (Tenn. 1982). However, an individual’s right

to personal liberty is a fundamental right for equal protection purposes. Doe v.

Norris, 751 S.W.2d 834, 842 (Tenn. 1988). Since the statute clearly authorizes the

court to require public service work, as was done in this case, this involves the
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deprivation of personal liberty. Accordingly, an equal protection analysis must be

conducted under the strict scrutiny standard. 

STRICT SCRUTINY

Under the strict scrutiny standard, it is appropriate to enforce the mandate

of equal protection by requiring the state to demonstrate that its classification has

been precisely tailored to serve a compelling governmental interest. Plyler v. Doe,

457 U.S. 202, 217, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). We now proceed to

determine whether (1) the government has a compelling interest, and (2) if so,

whether the statute has been precisely tailored to serve that interest.

We begin with the premise that it is unlawful for any person under twenty-one

(21) years of age to even consume an alcoholic beverage. Tenn. Code Ann. § 1-3-

113(b). If the consumption of alcoholic beverages can be treated differently for

those under twenty-one (21) as compared to those twenty-one (21) years of age or

older, then driving offenses relating to the consumption of alcoholic beverages

based upon these age distinctions would seem appropriate. Clearly, the state has

a compelling interest in maintaining the safety of our roads and protecting the public

from younger drivers who have consumed alcoholic beverages. Furthermore, the

statute is narrowly tailored to provide this sanction against younger drivers who are

not allowed to consume alcoholic beverages, and who would present a danger to

the public. 

For the above reasons, we find that the driving while impaired statute, Tenn.

Code Ann. § 55-10-415, is constitutional.

ERRONEOUS JUDGMENT

We are compelled to note that in addition to the fine, license revocation and

public service work requirement, the judgment provides for a sentence of 11 months

and 29 days with all the jail time being suspended and the defendant being placed
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on supervised probation for six (6) months. Tenn. Code Ann. § 55-10-415(d)(1)

expressly provides that the punishment for driving while impaired for a person age

eighteen (18) or over but under age twenty-one (21) is limited to “a driver license

suspension of one (1) year and by a fine of two hundred fifty dollars ($250). As

additional punishment, the court may impose public service work.” Neither a

sentence to the county jail nor probation is an authorized sanction. Accordingly, the

trial court should enter a modified judgment deleting these sanctions. 

CONCLUSION

The judgment of the trial court is affirmed except that the judgment shall be

modified as set forth above. 

_____________________________

JERRY L. SMITH, JUDGE

CONCUR:

_______________________________

JOSEPH M. TIPTON, JUDGE

_______________________________

THOMAS T. WOODALL, JUDGE