# FILED
September 17, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON JULY 1997 SESS ION
STA TE OF TENN ESSEE , ) C.C.A. No. 02C01-9701-CC -00010 ) Appellant, ) LAUDE RDALE COUN TY ) VS. ) HON. JOE H. WAL KER, III ) JUDGE ) LUCKY HUMPHREYS , ) ) (DUI) Appellee. )
FOR THE APPELLEE: FOR TH E APPEL LANT: WILLIA M K. RA NDOLPH JOHN KNOX WALKUP P. O. Box 611 Attorney Gen eral and Repor ter Dyersburg, TN 38025-0611 DEBORA H A . TULLIS Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 ELIZABETH T. RICE Distric t Attorney General MA RK E. DA

VIDSON Assistant D istrict A

ttorney Gener

al 302 Market Str

eet Somervill e, TN 38068

OPINI ON FI LED:

REVERSED A ND REMA NDED

JOE G. RILEY , JUDGE2 O P I N I O N
The state appeals the dis missal of an indi ctment for driving under the influence of an intoxi cant. The trial cour t found that the post-ar rest detention of the defendant constituted punishment and dis missed the indictment based upo n a finding of doub le jeopardy. We reverse and reinstate the indictment.

FACTS

Defendant, Lucky Humphr eys, w as arrested for

drivin g under the i nfluence of
an intoxic ant. Upon arr ival at the jail, defendant

refused a breathal yzer test. Under the sheriff’s poli cy, DUI arrestees were detained at t h e jail for approximatel y eight hours before being allowed t o make bail. If an a rrestee w as highly intoxic ated, he or she was someti mes allowed to be released to a family member . The rationale for the detention policy was the safety of th e arrestee as well as the safety of the g eneral public. The defendant was hel d for ap p roximately eight hours

before being al lowed to make bail. D uring thi s time he w as not allow ed to make a phone cal l. The t r ial court found no showing by the state of the need to keep this defendant for an eight-hour period for pu blic safety purposes. Although the trial court recogniz ed the remedial, public safety reasons for detention, the t rial court found that defendant ’s detention resul ted from the failure t o allow hi m to call a family member to pick him up and make b o nd. The trial c ourt ruled that the detention, t herefore, constituted punishment

. In summary, the trial court found th at the defend ant’s detention was “puni shment” for the “s ame offense” for which he was indi cted; to-w it: d riving under the influenc e of an intoxic ant. The trial court dismis sed th e DU I indi ctme nt f indi ng it t o con stit ute d oub le jeo pard y.3 AN AL YSIS

The det ent ion policy

was inten ded, at least i n part, to prot ect not only the arrestee but also the public from s omeone who had been r ecently ar rested for dri ving under the influence of an intoxicant. This is a rem edia l purp ose, not a puni tive one, and does not trig ger double j eopardy prot ection. State v. Penni ngton , S.W.2d (Tenn. 1997). I f the confinement is re medial and imposed pursuant to a l egitimate governmental purpose, then the conf inement is not considere d pu nishment for double jeopardy

purposes. See Doe v. Norris , 751 S.W.2d 834 (Tenn. 1988); State
v. Conley , 639 S.W.2d 435 (Tenn. 1982); State v. Co olidge , 915 S.W.2d 820 (Tenn. C rim. App. 1995). We further find that the detenti on was not excessive in the accomplishment

of the remedial pur pose. See Coolidge , 915 S.W.2d at 824. The fact that the defendant w as not allow ed to post bond nor make a phone call to secure a relative to pick him up does not convert his detentio n into “punishment.” Forthe a bove reasons , we rei nstate the indic tment for driv ing under th e influence of an intox icant and remand for further proceedi ngs.

JOE G. RILEY , JUDGE

CONCUR: JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE