# FILED
May 22, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9608-CR-00307 Appellee, ) ) Hamilton County V. ) ) Honorable Dougla s A. Meyer, Judge ) DONNA R. WHALEY, ) (DUI - Second Offense) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Jerry H. Summers Charles W. Burson Jimmy F. Rodgers, Jr. Attorney General & Reporter Attorneys at Law 500 Lindsay Street Sandy R. Copous Chattanooga, TN 37402-1490 Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 William H. Cox III District Attorney General John Bobo, Jr. Assistant District A

ttorney General City and County Buil ding 600 Market Street Chattanooga, TN 37402

OPINION FILED: ___________________
REVERSED AND

REMANDED
PAUL G. SUMM ERS, Judge1 The record reveals that the app ellant was sentenc ed to 11 months and 29 day incarce ration. The trial judge di d, however, state he woul d consider a petiti on for suspended sentence aft er 120 days. -2- O P I N I O N The appellant, Donna R. Whaley, was conv icted of driving under the influence (DUI), second offense. She was sentenced to 11 months 29 day s with probation consideration after 120 days service. 1 The trial court ordered the suspension of her driver' s license for two yea rs and the payment of a $510 fine. She appe als raisin g the foll owing issue s for revie w: I. Whether the appellant's prior DUI c onviction in Georgi a can be used to enhance her current DUI charge because the statutes are not sufficiently similar; II. Whether Tenn. Cod e Ann. § 55-10-403(1) is unconstitutionally overbroad and void for vagueness; III. Whether the trial court erred in finding the appellant guilty of second offense DUI when the record of the conviction was facially invalid; and IV. Whether the trial court erred in overruling the appellant 's motion to suppress the result s of the intoximeter test. Upon review, w

e reverse the judgment of the trial court.

FACTS The appellant was stopped by a Chattanooga police officer for w eaving and driving at nig ht without lights. She smelled of alcohol and had slur red speech. She admitted to the officer that she had drunk five or six beers. The appellant failed three field sobri ety tests and registe red a .23 BAC on the intoxime ter test. She was cha rged with DUI and take n into cus tody.

I
In her first issue the appell ant contends that her Georgi a DUI conviction cannot be used to enhance her sentence because Georgia's statute is dissimilar to Tennessee's DUI statute. She avers that the Tennesse e legislature only2 Although this Court does not think similari ty between a foreign

state's DUI statut

e and Tenne ssee's sta tute is requ ired to use the foreig n convic tion for en hancem ent, we fee l that Geor gia's DUI statute is very similar to Tennessee's. Both Georgi a and Tennessee prohibit a person from driving or being in physical control of a vehicle while und er the influence of a lcohol or drugs. Furthermore, in both stat es proof of .10 percent o r more concentration of al cohol gives rise to a conclusive presumption that the accused was impaired. Tenn. Code Ann.§ 55-10-408; Ga. Code Ann. § 40-6-392 (b)(4). -3- intended the use of prior, out-of-state, DUI convictions from states that have DUI statutes similar to Tennessee. Respectfully, this Court finds the appellant's contentions misguided. Furthermore, we find that Georgia's DUI statute is substantially similar to Tennessee's. 2
Upon revie w of the pl ain langu age of Te nn. Code Ann. § 55 -10-403 (l), we find nothing suggesting that the DUI statute of a foreig n state must be similar to that of Tennessee's in order to be us ed as a sentence enhancer. It appear s that the state legislature simply intended to enhance the punishme nt for repeat DUI offenders. This Court has held that a d efendant's prior DUI conv iction from another state could be used to enhance the sen tence for a defendant's subsequent DUI convic tion in Tennessee. State v. Rea , 865 S.W.2d 923, 924 (Tenn. Crim. App. 1992). This holding remains true regardless of how DUI is defined in a foreign state.
A state adopts DUI laws for the protection of its citi zens. If a person commits the offense of DUI, that person has disregarded the law

s of the state and endangered the lives of its citizens. If a person is convicted of DUI i n a foreign state the conviction should be used to enhance a sub sequent DUI in Tennessee. A valid convi ction from a foreign state should not be ignored or negated simply because the foreign state's DUI stat ute contains dissimilar elements from Tennessee's statute . Recidivist offenders endanger society. DUI sentencing statutes are des igned not only to punish but to deter and rehabilitate. The severity of the deterrence and rehabilitation eff orts increase with each subsequent DUI. If this C ourt held that dissimilar foreign DUI statutes coul d not be used to enhance Tennessee convic tions, this policy of dete rrence would be undermined. We, therefore, find the appellant's first issue without merit.-4- II
In her second issue the appell ant contends that Tenn. Code Ann. § 55-10-403(l), the DUI enhancing statute, is uncons titutionally over

broad and vague. She contends the absenc e of a similarity req uirement between the foreign s tate's DU I statute and Tenn essee's D UI statut e effec tively allows creative and discrimi natory use of the statute. We disagree.
A statute is void for vagueness if it is so vague, indefinite, and uncertain that persons must speculate as t o its meaning, and if it fails to give a person of ordinary intellig ence fair notice that his or h er conduct is forbidden by the statute. Underwood v. State , 529 S.W.2d 45 (Tenn. 1975). The pertinent statute stat es: "[f]or the purposes of enhancing the pu nishment of a person convicted o f violating 55-10-401, the state shall use a conv iction for the offense of driving under the influence of an intoxic ant that occurred in another s tate.” Tenn. Code Ann. § 55-10-403(l) (1990).This Court finds that this s tatute is not overbroad or vague. A person of ordinary intelligence should find this statute unmistakab ly clear. This issue is w

ithout merit.

III
The appellant next contends that he r prior Georgia DU I conviction was invalid on its face and therefore, could not be used to est ablish her status as a second offense DUI offender. The state argu es that the appellant's contenti on is moot because she explicitly stipulated to the fact that she had been convicted in Georgia of DUI. It ar gues that the appellant should not now be allowed to assert that the Georgia c onviction was facial ly invalid. Fr om a fairness viewpoint, we agr ee with the stat e. How ever, i n light

of State v. McClintock , 732 S.W.2d 268 (Tenn. 1987), we must agr ee with the appellant. In the McClintockcase, the Tennessee Supreme Court announced that a facially invalid j udgment could not3 The copy of the Georgia convicti on lacked a judge's signature. Furthermore,it did not indicate the appellan t was represente d by counsel or wa ived her right to cou nsel.

4 In Mackey , the Court expanded upon th e Boykin directives. In ad dition to the Boykin litany, defendants must be apprised of t he future enhancement possibil ities resulti ng from their pleas of guilty. 5 We note that although the appel lant's Georgia conviction cannot be used to cl assify her as a second offender, it can be considered in determini ng the appropriate sen tence within the range for first offense DU I. -5- be used to enhance punishment in a subs equent prosecution. Id. at 272. In this case the evidence offered by the state to prove the appellan t's prior Georgia conviction was facial ly invalid. 3 Had the pre vious conv

iction been from a Tennessee court, the facially deficient document could not form a basis for enhancement pursuant to Tenn. Code Ann. § 55- 10-403(g)(1) (Tenn. 1993)

. Tenn. Code Ann. § 55-10-403(g)( 2) should be read in conjunction with -(g)( 1). This Court believes the General Assembly did not i ntend to give credence to facially invalid fore ign convictions w hen a court would not do so w ith a similar Tennessee conviction. Altho ugh, as the state points out, the appellant stipulated that she was convict

ed of DUI in Georgia, she di d not stipulate that the conviction was facial ly valid or that i t met the constitutional req uirements of Boykin v . Alabama , 395 U.S . 238 (1969) or t he rules of State v. Mackey , 553 S.W.2d 337 (Tenn . 1977). 4 Accordingly, the appellant's Georgia conv iction cannot be used to enhance her curr ent conviction to DUI, second offense. The appellant is, however, convicted of DUI, first offense. The trial court shall sentence the appellant accordin gly. 5

IV
In her final issue the appellant alleges the trial cour

t erred in failing to suppress the blood alcohol evidence obtained through an intoximete r test because the implied consent form w as vague and misleading . The appellant contends that the form she signed fail ed to inform her of the consequences of submitting to such a test. As a result, the appellant as ks this Court to find the implied consent form unconstituti onal. We decline to do so.-6- The implied consent form unambiguousl y states: [y]ou are under arr est and t here are r easonab le ground s to belie ve you were driving or in physical control of a motor vehicle while under the influence of alcohol and/or drugs. As required under T.C.A. 55-10-406, I am hereby requesting you to s ubmit to a chemical test to determine the al cohol and/or drug content of y our blood. The form clearly indicates that the purpose of the test is to de termine the drug and alcohol content of the accused's blood. If the results of this tes t were not going to be used to prosecute the charged crime, ther e would be no purpose for administering the test. This Court has held that admoniti ons prior to submitting to a blood alcohol test are not required to sustain a v alid consent. King v. State , 598 S.W.2d 834 (Tenn. Crim. App. 1980). The averag e person understands that the results of a intoximeter test will be used ag ainst them. The form is neither vague nor misleading . This issue is without merit.

CONCLUSION
After reviewing the record and the issues presented for review, we reverse the appellant's convicti on for DUI, second offense. Howev er, she is convicted of DUI, first offense. We remand the case for resentencin g.

__________________________-7- PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK , Special Judge