1 In fact, the October 25th .025 standard test on this machine read high. 

# FILED
October 16, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1997 SESSION STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9605-CC-00209 ) VS. ) Coffee County ) MARK T. SCISNEY, ) Hon. Gerald L. Ewel l, Sr., Judge ) Appellant. ) (DUI While Driving Co mmercial Vehicle)

DISSENTING OPINION My learned c olleague , Judge W oodall, presents an excelle nt, comp rehensive
a nalysis of the law relating to blood alcohol concentrations;however, I res pectfull y disagreewith the conclusion tha t an Intoximeter 3000 reading of .04, which can result from actual concentrations rang ing from .035 to.054, is sufficient to establish beyond
a reasonable doubt a violati on of the .0 4 statute. I agree with Judge Tipton’s conclusion that the Intoxime ter 3000 reading of .04 is insu fficie nt, by itse lf, to pro ve beyond a reasonable doubt that the defendant was driving with a .04 blood alcohol concentration; however, I respectfullydisagree with the co nclusion that th is reading, combined with other evi dence in this case, is suffici ent to establish guilt. The analysis of Tenn. Code Ann. 55-50-408 i s simple from my perspectiv e. Aviolation of this statute requi res “ a blood alcohol concentration of point zero four (.04) or more...” We should look to the statute i tself and rely, when pos sible, u pon the ordinary meaning of its language and terms used, r efraining from any

forced or subtle construction to limit or extend the statute’s meaning

. State v. Smith , 893 S.W.2d 908, 917 (Tenn. 1994), cert. denied 116 S.Ct. 99, 133 L.Ed. 2d 53 (1995). The state’s exper

t witn ess testified that the acceptable tolerance of the Intoximeter

3000 is plus or minus .005. Therefor e, as Judge Woodall correctly concedes, a .04 reading could re sult from an actual blood alcohol concentration ranging from .035 to .054. 1 In other words, there is a twenty-fiv e percent (25%)2

statistical chance this defendant had an actu a l blood alcohol concentrati on below .04. To me, .04 m eans .04 and not . 039 or be low. Considering the tolerance, it is simply impossible to conclude beyond a reasonable doubt that the defendant had an ac tual blood alcohol concentration of .04 or more. This scenario is no different than placing twenty (20) people in a room, fifteen (15) of whom a re named “John” an d five (5) o f wh om are named “ Joe.” A random selection of one of those persons could not establ ish beyond a reasonable doubt that such person’s name is “John” simply because there is a seventy -five percent

(75%) statistical probability that his name is “John.” “Reasonable doubt” is simplynot subject to such a mathematical analysis. The concurring opinion conc ludes that evidence that defendant had a couple of tall beers in Georgia several hours earlier, smelled of alcohol upon his arrest in Coffee County, and was properly administered the intoximeter test, coupled with the reading of .04, is sufficient to establish beyond a reasonable doubt that the defendant had an actual blood alcohol concentration of .04 or more. I am unable to make such
a leap. The record does not suggest that such facts make the defendant an y more or less likely to have a reading of .04 or more as opposed to .039 or less. Defendant has lost in a game of chance. At best, w e can say the “odds

are” that he was .04 or more. “Odds are” is insufficient to estab lish proof beyond a reasonable doubt. I respectfull y dissent.

JOE G. RILEY, JUDGE