# FILED
February 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE FEBRUARY

1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 03C01-9604-CC-00149 Appellee, ) ) UNICOI COUNTY VS. ) ) HON. ARDEN L. HILL, BENJAMIN D. CRAIN, ) JUDGE ) Appellant. ) (Driving While Impaired - ) Constitution ality)

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 APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter WILLIAM DAVID BRIDGERS Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 DAVID E. CROCKETT District Attorney General LISA D. NIDI FFER Assistant

District Attorney

General Unicoi County Courthouse Erwin, TN 37650

OPINION FI LED:

AFFIRMED A

S MODIFIED
JERRY L. SMITH, JUDGE2 O P I N I O N Defendant, Benjamin D. C ra in, pled guilty to dr iving while i mpaired and reserved for appellate purposes the is sue o f whether the driving while impaired statute is unconstitutional.We find the statute to be constitutional.

PROCEDURAL HISTORY
Defendant, age 19, was invol ved in an au tomobile accident. Upon being taken to a hospital for a blood analy sis, he registered .08% blood alcohol content. After being i n dicted for the offense of driving w hile impaired pursuant to Tenn. Code Ann. § 55-10-415, defendant moved to dismi ss the indictment allegi ng the unconstitutionality of the statute. Upon the motion to dismiss beingoverruled bythe tri al cour

t, defend ant then

entered a plea of guil ty and was fined $250, received a license revocation for one (1) year and was o rdered to complete 20 hours of public service w ork. With the consent of the trial court and state, defendant reserved the right to appeal the constitutionality iss ue as a certified question of law that is dispositive of the case. See Tenn. R. Crim. P. 37(b)(2) (i).

EQUAL PROTEC

TION

The sole issue presented in thi s appeal is whether the dr iving while i mpaired statut e, Tenn. Code Ann. § 55-10-415, vi olates the defendant’s equal prot ecti o n rightsunder the United States Constitution and the Tennessee Constitution. More specifi cally, the defendant argues that subjecti ng adults ages 18 to 21 to sanctions based upon .02% blood alcohol content w hile not subjecting adult s ages 21 and older to the same sanctions v iolates his rights t

o equal protection. Both the United States Constituti on and the Tennessee Constitution guarantee to citizens the same basi c right to equal prot ection 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 ofequal protection under both3

Constitutions

guarantees that “all persons similarly circumstanced shall be tr eated alike.” Tennessee Small School Systems v. McWherter , 851 S.W.2d 139, 1 5 3 (Tenn. 1993) (quoting F. S. Royst er Guano Co. v. Commonwealth of Virginia , 253 U.S. 412, 415 (1920). Tennessee has consistently foll o wed the framework devel oped by the United States Supreme Court, which appl ies one of three standards of scrutiny : 1) stri ct scrutiny, 2) heightened scrutiny, and 3) reduced scrutiny or the rational basis tes t. Riggs v. Burson , 941 S.W.2d 44, 52 (Tenn. 1997 ). Strict scrutiny analysis is
r equired when th e legis lative classificatio n inter

feres with the e

xerci se of a “fundamental right” or op erates to the pecu liar disad va ntage of a “suspect class.” State v. Smoky Mountain Secrets, Inc. , 937 S.W.2d 905, 911 (Tenn. 1996). The d efen dant does not contend that adults ages 18 to 21 are a “susp ect class.”Suspect classifications a re race, alienage, national origin, andsex. KingBradwell Partnership v. Johnson Controls , Inc. , 865 S.W.2d 18, 21 (Tenn. App. 1993 ). Heightened review has not been extended to differential treatmentbase d
on age. Cleburne v. Clebur ne Living C enter , 47 3 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 clas sification applies when the classification interferes wit h a “fundamental right. ” Massachusetts Bd. of Retirement
v. Murgia , 427 U.S. 307, 312, 9 6 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 whil e impaired for a personage 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 wo rk.” 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 indiv idual’s right to personal liberty is

a fund a mental right for equal pr otection purposes. Doe v. Norris , 751 S.W.2d 834, 842 (Te nn. 1988). Since the statute clearly authorizes the
cou rt to requi re public service w ork, as was done in thi s case, this involv es the4

deprivation of perso nal liber ty. Accordingly, an equal protection analysis must be conducted under the strict s crutiny standard.

STRICT SCRUTINY

Under the str i ct scrutiny standard, it is appropriate to enforce the mandate of equal protection by req uiring the state to demonstr ate that its classificatio n has been precisely tailore

d to serve a compelling governmental interest. Plyler v. Doe , 457 U.S. 202, 217, 102 S.C t. 2382, 72 L.Ed.2d 786 (1982). We now proceed to det ermine wh ether (1) the government has a compelling interes t, and (2) if so, whether the statute has been pr ecisely tailored to s

erve that interest. We begin with the premise that it is unlawful for any person under twe nty-one (21) years of age to even consume an alcoholic beverage. Tenn. Code Ann. § 1-3- 113(b). If the consumption of alcoholic bev erages 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 rel ating to the consumption of alcohol ic be vera ges based upon these age distinctions would seem appropriate. Clearly, the state has
a compelling interest i n maintaining the safety of our roads and protecting the public from younger driver

s who have consumed alcohol ic beverages. Furthermore, the statute is narrowly tailor ed 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 dr iving while i mpaired statute, Tenn. Code Ann. § 55-10-415, is constitutional.

ERRONEOUS JUDGMENT
We are compelled to note that in addition to the fine, licens e revocation and public service work r

equirement, the judgment provides for a sentence of 11 months and 29 days with all the jail time being suspended and the defendant being placed5

on supervise d probat ion for si x ( 6) mont hs. Tenn. Code Ann. § 55-10-415(d) (1) expressly

provides th at the punishm ent for driving while im paired for a pe rson age eighteen (18) or over but under age twenty-one (21)

is limite d to “a dri ver license suspension of o ne (1) year and by a fine of tw o hundred fifty dollars ($250) . As addit ional punishment, the court may impose public service work.” Neither a sentence to the county

jail nor probation is an authorized sanction. Ac cordingly, the trial court should enter a modified judgment deleting thes e sanctions.

CONCLUSION

The judgment of the trial court is affirmed except t hat the judgment shall be modified as set forth above.

_______ ________

_____________

_ JERRY L. SMITH, JU DGE
CONCUR:

_______________________________ JOSEPH M. TIPTON, JUDG E

_______________________________ THOMAS T. WOOD

ALL, JUDGE