# FILED September 8, 1997 Cecil W. Crowson Appellate Cou rt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION ) Appellant ) FILED: SEPTEMBER 8, 1997 ) v . ) DAVIDSON COUNTY ) JEFFERSONC. PENNINGTON ) HON. JAMES R. EVERETT, JUDGE ) Appellee ) NO. 01-S-01-9607-PB-00133

For Appellee : For Appellant : J. BRYAN LEWIS JOHN KNOX WALKUP PHILLIP A. PURCELL Attorney General and Reporter Nashville, TN MICHAEL E. MOORE Solicitor General DARYL J. BRAND Assistant Attorney General Nashville, TN VICTOR S. JOHNSON, III District Attorney General JAMES W. MILAM Assistant District Attorney General Nashville, TN

OPINION2

JUDGMENT REVERSED, INDICTMENTS REINSTATED, AND CAUSE REMANDED. BIRCH, J.1 Tenn. Code Ann. § 55-10-401. 2 Tenn. Code Ann. § 55-50-504. 3 According to Pennington, he refused to sub mit to a breathalcohol test but was willing to have a blood sample taken. 3 We review this cause to determine w he ther detention immediatelyafter arrest , purp osely continued because of the accused’s refusal to submit to a breathalyzer test, constitutes punishment that prevents, under double jeopardy principles, punishment upon conviction. Because we find that jeopardy did not attachto the proceedings before the judicial commis sion er and because the detention, even if punitive, did not constitute punishment for the charged offenses, we find no dou ble jeopardy violation. Accordingly, the judgment of the Court of Criminal Appeals is reversed, the indictments are reinstated, and the cause is remanded to the trial court for further proceedings.

I

JeffersonC. Pennington, the appel lee, was arrested in Metropolitan-Nashville Davidson County and charged with driving while under the influence of an intoxicant 1 and drivin g on a suspended or revoked license. 2 Because he refused to s ubmit to a breathalyzer test, 3 Pennington was not permitted to arrange his release immedi ately. Consequently, he remained in custody for approximately eleven hours. Pennington was subsequently indicted on both offenses.4 Judicial commissioners are appointed by the general sessions

judges of the county and are authorized to issue arrest warrants, searchwarrants, and set or deny bond. See Tenn. Code Ann. § 40-5- 201 et seq . An § 40-5-101 et seq .

5 Inhis brief to this Co urt, the defendant attempts to argue that this proffered rationale for the detention was a pretext and that he was actually detained as punishment for the charged offenses. However, the stipulation was offered by the State’s attorneyin open court, and defendant’s counsel consented. Therefore, the defendant’s subsequent contention th at t he policy was a pretext is simply of no consequence. 4 Pennington filed a motion to dismiss the indictments in whichhe contested the policy established by the Metropolitan Nashville-Davidson County general sessions judges and judicial commissioners 4 whereby persons charged with driving while intoxicated were detained in custody for twelve hours (more or less) upon their refusal to submit to a breath-alcohol test. The existence of this policy was stipulated; stipulated also was that the policy served to promote public safety. 5

Ingra ntin g the motion to dismiss, the trial judge stated:
The problem you have, General, is

that a punishment has been imposed ona defendant without there being anadjudication of guilt. They just said everybody that comes in here and meets this classification is going to get 12 hours, period. That is a bad policy; therefore the Court will grant Mr. Ray’s motion.
The intermediate court, in affirming the judgment of the trial court, concluded that detention based on the stipulated p olicyconstituted punishment for the offenses charged. Fur the r5

punishment, the court held, would violate double j eopa rdy principles. We granted the State’s application for Rule 11 review.

II

The double jeopardy clause of the Fifth Amendment to the United States Constitution, ap plic able to the states through the FourteenthAmendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb

. . . .” Article 1, § 10 of the Tenness ee Constitution provides that “no person shall, for the sa me offence, be twice put in jeopardy of life or limb.”

The purpose of the constitutional protection against double jeopard y was aptly expressed by the United States Supreme Court:
The underlying idea, one that is

deeplyingrained in at least the Anglo-American s ystem o f jurisprudence, is that the State withall its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, there by subjectin g him t o embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibilitythat even though innocent he may be found guilty.
Greenv. United States , 355 U.S. 184, 187-188, 78 S. Ct. 221, 223, 2 L. Ed.2d 199 (1957). Jeopardy in this sense refers to the risk “traditionallyassociated with ‘actions intended to authorize6

criminal punishment to vindicate public justice.’” Breed v. Jones , 421 U.S. 519, 529, 95 S. Ct . 1779, 1786, 44 L. Ed.2d 346 (1975) (quoting United States ex rel. Marcus v. Hess , 317 U.S. 537, 548- 549, 63 S. Ct. 379, 388, 87 L. Ed.2d 443 (1943).

Incontext, double jeopardy violations arise onlywhen an individual is twi ce placed in jeopardy for the same offense. Customarily, in jury proceedings, jeopardy attaches when the jury is sworn, and in nonjury proceedings, jeopardy attaches when the first witness testifies. Crist v. Bretz , 437 U.S. 28, 35, 98 S. Ct. 2156, 2160, 57 L. Ed.2d 24 (1978); Serfass v. Unit ed St ates , 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed.2d 265 (1975). A defendant must be put in jeopardy at least once, “for only if that point has
once been reached does any subsequent prosecutionof the defendant bring the guarantee against double jeopardy even potentially into play.” Crist , 437 U.S. at 32-33, 98 S. Ct. at 2159.

It is well established that jeopardy does not attach in preliminary pretrial proceedings. See United States ex rel. Rutz
v. Levy , 268 U.S. 390, 45 S. Ct. 516 , 69 L. Ed. 1010 (1925); Collins v. Loisel , 262 U.S. 426, 43 S. Ct. 618, 6 7 L. Ed. 1062 (1 923). Rather, to be put in jeopardy, the defendant must b e “subject to ‘criminal p rosecu tion’ and put to trial.” United States v. Gri santi , 4 F.3d 173, 175 (2nd Cir. 1993). The proceeding must be “essentially criminal” and constitute an action “intended to authorize criminal punishment to vindicat e pub lic justice.” Id. ( citing Breed v. Jones , 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed.2d 346 (1975), and United States ex rel Marcus7

v. Hess , 317 U.S. 537, 548-49, 63 S. Ct. 379, 386, 87 L. Ed.2d 443 (1943)).

In Gri santi , after a hearing, the defendant’s bail was revoked. Subsequently, he was indicted for the same conduct that
was the basis for the bail revocation. The defendant contended that double jeopardy barred the indictment because he had already beenput in jeopardy for the indicted offense. Rejecting his contention, the Court of Appeals held that the bail revocation hearing was not essentially criminal and his subsequent detention served a “regulatory function rather than a criminal one.” Id.

In the instant case, the parties stipulated that one of the purposes of the detention policy was to keep suspected drunk drivers off the road for a period of time after their arrest. In other words, the policy was intended, at least in part, to protect the public from individuals who had been arrested on suspicion of driving under the influence. This is a remedi al purpose , not a punitive one, and therefore, the defendant’s initial appearance before the judicial commissioner does not constitute an essentially criminal proceeding brought to “vindicate public justice.”

Finally, assuming sole lyfor the sake of argument that jeopardydid attach at Pennington’s initial appearance and that the detentioncould be construed as punishment, the punishment was for refusing to submit to the breathalyzer test--not for the offenses for which Pennington was later indicted. Under our analysis in State v. Denton938 S.W.2d 373, 381 (Tenn. 1996), refusal to submit8

to a test to determine blood-alcohol content, Tenn. Code Ann. § 55- 10-406(a)(3), is not the same offense as driving u nder t he influence, Tenn. Code Ann. § 55-10-401, or driving on a suspended or revoked license, Tenn. Code Ann. § 55-50-504. The elements of the offenses are distinct from one another; the same evidence would not be used to prove the offenses; and the statutes serve different purposes.

Apolicy of detaining su spe cted drunk drivers for refusing to submit to a test to det erm ine blood-alcohol content may, if punitive, implicate certain constitutional protections, but the double jeopardy clause is not one of them. To punish an individual without a prior adjudication of guilt is a violation of due process. See Kennedy v. Mendoza-Martinez , 372 U.S. 144, 186, 83 S. Ct. 554, 576, 9 L. Ed.2d 644 (1963)(“[P]unishment cannot be imposed ‘without due process of law.’ Any lesser holding would ignore the constitutional mandate upon which our essential liberties depend.”). Pre-trial detention that is remedial as di stingu ished from punitive is permissible provided that the individual is afforded sufficient procedural due process. United States v. Salerno , 481 U.S. 739, 751, 107 S. Ct. 2095, 2103, 95 L. Ed.2d 697 (1987); Schall v. Martin , 467 U.S. 253, 264, 104 S. Ct. 2403, 2409, 81 L. Ed.2d 207 (1984); Bell v. Wolfish , 441 U.S. 520, 536, 99 S. Ct. 1861, 1872-73 60 L. Ed.2d 447 (1979).

In sum, the post-arrest detention of the defendant does not bar the State’s subsequent prosecution of him for the offenses charged in the indictment. The judgment of the Court of Criminal Appeals is rev erse d; the indictments against the defendant are reinstated; and this cause is remanded to the trial court for9

further proceedings. Costs of this cause are taxed to the appellee for which execution may issue if necessary.

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_ ADOLPHO A. BIRCH, JR., Justice
CONCUR: Anderson, C.J. Drowota, Reid, Holder, JJ.