FILED

September 8, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION

)

Appellant ) FILED: SEPTEMBER 8, 1997 

)

v . ) DAVIDSON COUNTY 

)

JEFFERSON C. 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

OPINION
2

JUDGMENT REVERSED, 

INDICTMENTS REINSTATED, 

AND CAUSE REMANDED. BIRCH, J.
1Tenn. Code Ann. § 55-10-401.

2Tenn. Code Ann. § 55-50-504.

3According to Pennington, he refused to submit to a breathalcohol test but was willing to have a blood sample taken.

3

We review this cause to determine whether detention

immediately after arrest, purposely 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

attach to the proceedings before the judicial commissioner and

because the detention, even if punitive, did not constitute

punishment for the charged offenses, we find no double 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

Jefferson C. Pennington, the appellee, was arrested in

Metropolitan-Nashville Davidson County and charged with driving

while under the influence of an intoxicant1 and driving on a

suspended or revoked license.2 Because he refused to submit to a

breathalyzer test,3 Pennington was not permitted to arrange his

release immediately. Consequently, he remained in custody for

approximately eleven hours. Pennington was subsequently indicted

on both offenses. 
4Judicial commissioners are appointed by the general sessions

judges of the county and are authorized to issue arrest warrants,

search warrants, and set or deny bond. See Tenn. Code Ann. § 40-5-

201 et seq. An § 40-5-101 et seq.

5In his brief to this Court, 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

attorney in open court, and defendant’s counsel consented.

Therefore, the defendant’s subsequent contention that the policy

was a pretext is simply of no consequence.

4

Pennington filed a motion to dismiss the indictments in

which he contested the policy established by the Metropolitan

Nashville-Davidson County general sessions judges and judicial

commissioners4 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

In granting the motion to dismiss, the trial judge

stated:

The problem you have, General, is

that a punishment has been imposed

on a defendant without there being

an adjudication 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

policy constituted punishment for the offenses charged. Further
5

punishment, the court held, would violate double jeopardy

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, applicable to the states through the

Fourteenth Amendment, 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 Tennessee Constitution provides

that “no person shall, for the same offence, be twice put in

jeopardy of life or limb.”

The purpose of the constitutional protection against

double jeopardy was aptly expressed by the United States Supreme

Court:

The underlying idea, one that is

deeply ingrained in at least the

Anglo-American system of

jurisprudence, is that the State

with all its resources and power

should not be allowed to make

repeated attempts to convict an

individual for an alleged offense,

thereby subjecting him to

embarrassment, expense and ordeal

and compelling him to live in a

continuing state of anxiety and

insecurity, as well as enhancing the

possibility that even though

innocent he may be found guilty.

Green v. 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

“traditionally associated with ‘actions intended to authorize
6

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).

In context, double jeopardy violations arise only when an

individual is twice 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. United States,

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 prosecution of 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, 67 L. Ed. 1062

(1923). Rather, to be put in jeopardy, the defendant must be

“subject to ‘criminal prosecution’ and put to trial.” United

States v. Grisanti, 4 F.3d 173, 175 (2nd Cir. 1993). The

proceeding must be “essentially criminal” and constitute an action

“intended to authorize criminal punishment to vindicate public

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 Marcus
7

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

(1943)). 

In Grisanti, 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

been put 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 remedial 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 solely for the sake of argument that

jeopardy did attach at Pennington’s initial appearance and that the

detention could 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. Denton 938 S.W.2d 373, 381 (Tenn. 1996), refusal to submit
8

to a test to determine blood-alcohol content, Tenn. Code Ann. § 55-

10-406(a)(3), is not the same offense as driving under the

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.

A policy of detaining suspected drunk drivers for

refusing to submit to a test to determine 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

distinguished 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 reversed; the indictments against the defendant are

reinstated; and this cause is remanded to the trial court for
9

further proceedings. Costs of this cause are taxed to the appellee

for which execution may issue if necessary.

____________________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Reid, Holder, JJ.