# FILED February 16, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE SEPTEMBE R SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710- CC-00499 ) Appellee, ) ) COFFEE COUNTY V. ) ) HON . GER ALD L. E WEL L, SR., ) JUDGE LEO NARD HUS TON PRAT ER, JR ., ) ) Appe llant. ) (DUI, THIR D OFF ENSE )

FOR THE APPELLANT : FOR THE APPELLEE : DOYLE E.RICHA RDSON JOHN KNOX WALKUP 128 W. Lincoln St reet, Ste. B Attorney General& Reporter Tullahoma, TN 37388 DARYL J.BRAND Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 MICHAEL LAYNE Distri ct Attorney General STEP HEN E . WEITZ MAN Assistant Distri ct Attorney General P.O. Box 147 Manchester, TN 37355

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Leonard Huston Prate r, appe als as o f right his convicti on of third offen se DU I foll owing a jury trialin the Coffee County Circui t Court. The trial court sentenced him to eleven (11) months and twenty- nine (29) day s, suspended after 180 days, suspended hi s dr ive r’s licen se for te n (10) y ears, a nd fine d him $5,000. The trialcourt als o ordered the cond itionalforfei ture of Defendant’s vehi cle. In this appeal, Defendant r aises the foll owing four (4) issues:
1. Whether Defendant’s r ights agai nst double j eopardy were viol ated; 2. Wh ether D efenda nt was pr operly convicted o f third offense DUI; 3. Wh ether the tri al court committed sentencing error s; and 4. Whether the tri al court erred in orderi ng the conditi onal forfeiture of D efenda nt’s vehicle
. After a car

eful rev iew of the r

ecord, the j udgment of the t rial cour t is af firmed.

On September 9, 19 96 , Investigato r William Marco m of the Coffee C ounty Sher iff’s Office was driving home on Highway 53 when a pickup tru ck crossed the center line into his path, “nearly strikin g the veh icle in front of [h im].” Acco rding to Marcom , he was then forced to swerve onto the rig ht shou lder to avoid a col lisi on. Investi gatorMarcom made a U-tur n, foll ow ed the pickup , and th en turn ed on his dashboa rd blue li ght and his bl ue stro be ligh ts in the grill to ale rt the dr iver to pu ll over. Th e driver of the pickup tru ck was Defen dant.-3- In asking Defendant for his driver’s li ce ns e, Marcom noticed t he odor of alcohol c oming from insi de the vehicl e. Invest igator Marcom said that he ask ed Defend ant how much he had had to drin k that eveni ng and Defendant respon de d “aboutsix beers. ” When Defe ndant got out of his t ruck, Marcom observed Defendant to be unsteady on his feet . He also noti ced that Defendant’s speech was slurred and that his eyes were bloodshot. Marcom administeredone field s obriety test, the alphabet

test. Defendant was not abl e to correct ly complete the test ashe missed about ever

y f ourth letter a nd then finally had to s top at the le tter “P.” Investi gatorMarco m radio ed for De puty Lee Nettles to a ssist in the a rrest. Dep uty Nettlesalso n oticed that D efend ant wa s uns teady on his feet. Net tles testifi ed that at one p oint he ha d to grab Defen dant’s arm to preven t him from falling over.

Once they arrived at the Cof fee County Jai l, Offi cer Lisa Brazi er “book ed ” Defen dant. She testified t hat Defendant fit t he desc ripti on of someone who was underthe influen ce of alcohol . Sergeant Rodney Banks then spoke with Defend ant about ta king a breath a lcohol tes t, and De fendan t subseq uently ag reed to ta ke it. Sergeant Banks cond u cted the breat h alcohol test using t he Intoxi meter 3000 mach ine. The report sh owed D efenda nt’s breath alcohol lev el to be .21 percen t.

Defendant testified that p rior to September 9, 1996, he had been in the midst of a divorce tha t he didn’t w ant. He sa id that it h ad be en a ve ry difficult tim e in his life, and that at

ti me s h e was “b ezerk.” D efenda nt testified tha t he had been a t a friend’s house, Floyd EdselJones, on September 9, 1996, to watc h Monday Night Footb all. He testif ied that h e had a few dri nks of George Dickelwhiskey and t hat Edsel had a lso be en drin king fro m the sam e bottle of Ge orge D ickel. He als o said that he had eaten some chips and di p that nig ht at Edsel’s house, however, Edsel-4-

testif ied that no chi ps or dip had been ser ved t hat night. Defendant test ified t hat when he left Edsel’s house t hat the li quor b ottle was a bout ha lf full. Accordin g to Defen dant, he did not feel under the influence of al cohol when he left Edsel’s house. Edsel also te stified th at De fenda nt did not app ear to be dru nk wh en he left Eds el’s house. Defendant test ified t hat the road s urface was uneven which cause d him to stum ble following th e depu ty’s stop. Defendant also testifi ed thatthe straw us ed for the breath alcohol test fell on the flo or and that it coul d have affected the accuracy of the test result

s. However, Sergeant Banks denied that the straw fel l on the f loor and said that even as suming tha t it had, that he would h ave obtained a new st raw be fore administer ing the te st to Defendant . Defendant had pr evious ly bee n convicted of two DUI’s, the first on November 29, 1988, i n Warren County and the second o n March 6 , 1989, in Coffee County.

As a result of the incident on September 9, 1996, Defendant was indi cted by the Coffee Count

y Grand j ury i n March 1997 on two counts of DUI. The first count alleged a violat ion of Tenn. Code Ann. § 55-10-401(a) (2), driving wit h a blood or breath alcohol l evel at or above 0.10 percent . The second count al leged a viol ation of Tenn. Code Ann. § 55-10-401(a)(1), driving whi le u nderthe influen ce of intoxic ant. Followinga jury trial, Defendant was found gui lty of both counts. During the seco nd phase of the tri al, the j ury found t hat it was Defendant’s t hird DUI offense and set the fine at $5,000. At the sen ten cing heari ng, the trial court sentenced Defendant on only one count to wi t: driving wit h a blood or breath al cohol levelat or above 0.10 percen t. The cou rt sentenced him to eleven (1 1) months and twenty-nine (29) days in prison, s uspended after 180 days. The court also suspended his l icense for ten (10) years, ordered Defendant to pay the $5, 000 fine as set by t he jury, and ordered the condition al fo rfe iture of Defendant’s vehicle. Followingthe court’ s denial of-5-

Defe ndan t’s motion for new tria l, the tri al court c larif ied the record by merging count two of th e indic tmen t into co unt on e. Def enda nt time ly filed this appe al.

I.

Defendantargues that he was subjected t o double jeopar

dy because the Stat e charged in its indict ment and the jury consi dered two counts of drivi ng while under the inf luen ce of

an in tox ican t. I n coun t one , De fend ant was charged wi th driv ing while the concentr

ation o f his bl oo d or breath al cohol levelwas 0.10 percent or higher. Tenn. Code Ann. § 55-10-401(a)(2). In count t wo, Defendant was char ged with dr ivi ng while under the infl uence of an intoxicant. Tenn. Code Ann. § 55-10- 401(a)(1). Both counts were char ged as thi rd offenses. The verdict form showsthat the jury con victed De fendan t on both c ounts a s charg ed in the in dictme nt.

The trialjudge subsequently sentenced Defendant to only onecount of driving while under the in fluence of an intoxi cant as evi denced in his s entencing ord er and in the judgme nt. Following the he ari ng on the mo tion for new trial, the trial court entered an order merging t h e second count int o the fir st count to resolve any confusion. Howe ver, th e t rial cour t stated t hat its previous sentencing order had actuall y accomplished t he same purpose.

After a careful review of

the record, we f ind the doubl e jeopardy ar gument to be without m erit. The d ouble jeo pardy cla uses o f both th e Uni ted States and t he Tennessee constit utions have be en interpr eted to “pr

otect[]against a second prosecution for the same of fense after

acquittal. It

protects a gainst a second p r osecution for the s ame offens e after c onvictio n. And it protec ts aga inst m ultiple-6-

punish ments for the sam e offense .” North Carolina v. Pearce , 395 U. S. 711, 717, 89 S. Ct. 2072, 207 6, 2 3 L. Ed. 2 d 656 (1 969); State v. Philli ps , 924 S.W.2d 662, 66 4 (Tenn. 1996). It is true that

both counts i n the case sub j udice aro se f rom a singular incident. However, doublejeopardy does not apply

here because count one required a showing by t he State that Defenda nt was driv ing and had a blood or breath alcohol l evel at or above 0.10 percent . There is nosuch requirement under count two. In count two, t he State was requi red to prove that Defendant was “[u]nder the influen ce of any in toxicant , marijuana, narcotic drug, or

drug producing stimulat ing effects

on the c entral ner

vous system.”

Tenn. Code Ann. § 55-10- 401(a)(1). Count one does not require that proof, but

merely theshowin g of a specifi ed blood or brea th alco hol leve l. “[T]wo offens e are n ot the s ame for dou ble jeopardy

purpos es whe n each requires a proof o f a f act that the other do es not.” State v. Black , 524 S.W .2d 913, 924 (Tenn. 197 5).
Furthermore, only one sentencing judgment was entered for a vi olation of Tenn. Code Ann. § 55-10-401. Thi s Court has noted, “the trial court’s entry o f only
one judgment of

conviction i mposing only one sentence . . . pr otects t he defendant from receivi ng multipl e punishments for the same offense. No doub le jeop ardy p eril exists.” State v. MichaelAddison , C.C.A. No. 02C01-9503- CR-00078, slip op. at 7, ShelbyCoun ty (Tenn. Crim. App, Jackson, Nov. 25 , 1997), perm. to appeal denied (Tenn ., June 29, 19 98). W e find th at De fenda nt was not su bjecte d to m ultiple punish ments for the sam e offense , and ther efore, this iss ue is witho ut merit.

II.-7- Defendant argues ne xt that he shou ld not have been convicted of thi rd offense DUI because his pri or two DUI convi ctions di d not expressly state whet her or not he actually ha d a blood or breath alcohol lev el in exces s of .10 pe rcent.

Tenn. Code Ann. § 55-10-403(a) (3) requi res enhanced penalt ies for persons previo usly convicted of driving while under the i nfluence of intoxi cants, unless th e convicti ons occurred more than ten years apar t. Specif icall y, the statute prov ides that“every con viction for a vio lati on o f § 55-1 0-401 . . . shall be cons idered in determ ining the n umbe r of prior offen ses.” Te nn. Co de Ann . § 55-10 -403(a)( 3).

Tenn. Code Ann. § 55-10-403(a) (3) does not require t hat the prior conv iction s involve a blood or breath alcohol l evel. In fact , this C o urt has stated, “i t is t he quantity, not the qu ality of the prior offenses that govern.” State v. Mahoney , 874 S.W.2d 627, 630 (T enn. Crim. A pp. 1993), per m. to appeal deni ed (Tenn. 1994). As evi de nced by the recor d, Defendant’ s two prior convicti ons were for v iolati ons of Tenn. Code Ann. § 55-10-401, and the two prior DUI convicti ons occurred wi thin ten years of the present offense. Therefore, hewas properly convicted and sentenced
as a m ultiple offend er to third offe nse DU I. This issu e is withou t merit.

III.

Defendant argues that the penalties imposed against him are too severe and should be reduced. As di scussed in the previous i ssue, Defendant’s con victi on of-8-

third offense DUI was warranted in thi s case . Tenn . Co de Ann. § 5 5-10-403 mandates penalti es for a convi ction of thir d offense DUI by r

equiring t he following:
a fine of not less than one t housand one hund red dollars ($1,100) nor more t ha n ten thousa nd dollars ($10 ,000), and the pe rson o r perso ns sh all be confined in the cou nty jail or workh ouse fo r not less th an one hundre d twenty (120) days nor more than eleven (11) m onths and tw entynine (29) days, and the court shall pr ohibit s uch convicted person or per sons from dri ving a vehi cle in t he state of Tenn es see for a peri od of time of not less t han three (3) years nor more than ten (10) years.

. . . All persons sentenced und er s ubse ction (a ) shall, in addition to servi ce of at l east the m i nimum sentence, be required to serve th e differe nce b etwee n the tim e actu ally served and the maxi mum sentence on probation.
Tenn. C ode Ann . § 55-10-403 (a)(1) and (c).

“A senten ce for DU I [ ] d oes no t involve a range. A defendant convic ted of DUI automatical ly receives a sentence of eleven m onths an d twenty-nine days. Ac cordingly, enhancement and mitigat ing factors are not us ed in determi ning th e length of a D UI senten ces. T enne ssee Code Anno tated s ection 40-35 -210( f) is clearly inapplicable to D UI sentenc ing.” Sta te v. Kennet h Eugene Troutman , __S.W.2d __No. 03S01-9705-CC-00049, sl ip op. at 5, Washington County (Tenn. Cri m. App., Knoxv il le, No v. 9, 1998). “While t rial cour ts cannot devi ate from the length of the DUI sentence, tri al courts do reta in som e discr etion in determining what portion of the eleven m onth and twe nty-nine day sen tence a defe ndant will serve in confineme nt.” Id
.

In determ ining w hat po rtion of th e ma ndate d sen tence shall be served in confinem ent, a trialcourt need onl y consider t he princ iple s of sentenci ng and-9-

enhancement and mitigating fac tors in order to com ply w ith the misdemeanor senten cing statu te. See id . at 7; Tenn. Code Ann. § 40-35-302.

In the case sub judice , sentenci ng was held before Troutman was fil ed, and the trialcourt did set fort h findin gs of fact . In it s sentencing or

der, the trial co urt f ound tha t Defendant had a pr evious cri minal history and had no hesi tation about committing a crime when the ri sk to human lif e was high. See Tenn . Code Ann. § 40-35-114(1) and (10). The da ta report reveals t hat Defendant had conviction s for leaving the scene of an accident, publi c intoxicati on, and reckless d ri ving. T his is certain ly enough to determi ne that Defendant has a criminalhistory . Further more, the circumstances of the offense for which Defe ndan t stand s con victed a re certa inly the type that

involve a high ri sk to human lif e. Invest igator Marcom testif ied tha t Defendant crossed theyellow line on a publ ic highway andnearly caused a colli sion with the vehicle in front of Ma rcom. Th e trial court was ju stified in considering these enhancement factors. As to miti gating fac tors, t he court foundno specific statutory
ones to apply, bu t it did consid er Defe ndant’s c omm endab le emp loymen t h istor y. Based o n the forego ing, we find tha t the trial c ourt’s s enten ce of 1 80 da ys in confinem ent is am ply supp orted by th e record
.

The jury imposed a fine against Defen dant of $5,000 , near the mid -point of allowa ble fines und er the statu te. See Tenn . Code Ann. § 55-10-403 (a)(1). Defendant argues that the jury wasconfused about t he possible f ines because the jury retur ned a verd ict of guilt y on twocoun ts of DU I during the first p hase of the tria l. However, the r

ecord does not suppor t Defendant’ s asserti on.-10- The trialcourt s uspe nded Defe ndan t’s driver’s l icense for ten (10) years which is the maximum duratio n under the statute. See Tenn . Code Ann. § 55-10-403 (a)(1). In doing so, the trial c ourt no ted D efend ant’s p rior DU I offens e, as w ell as his entire criminal reco rd, and t he serious ness of DUI offensesin the count y. We believe th e trialcourt was j ustifi ed in imposing t he maximum suspension.

In summary, we find t he length of Defen da nt’s se ntenc e, the a mou nt of his fine, and the length of his driver’s l icense suspensi on to allbe appropriate.

IV.
Lastly, Defendantargues that the tri al court erred in ordering the conf iscati on of his pickup t ruck under the applicabl e 1995 provisi ons of Tenn. Code Ann. § 55-10- 403(k).

The statutor

y provis ion at i ssue in thepresent case r eads in pert inent part

as follows: The jud ge hea ring a third o r subse quent vio lation of

§ 55-10 -401, o r the third or sub sequ ent viola tion of any combination of violat ions of § 55- 10-401 and driving w hile intoxi cated violati on s com mitted in othe r states , shall declare the v e hicle used in the commission of such offen se t o be contraband and subj ect to for feitur e as provided i n this subsect ion. Tenn. Code Ann. § 55-10-403(k )(1) (Supp. 1995). The stat ut e was ame nded in 1996 , effective January 1 , 1997, and d esignated the Departm ent of Safety as th e applic able agency for f orfeit ures instead o f the trial court. Tenn. Code Ann. § 55-10- 403(k)(1) (Supp. 1996). However, si nce the offense at issue her e oc cu rred on September 5, 1996, th e trial court was authorized to order the forfeiture because the-11-

evidence showed that t he vehicle was being driv

en by De fenda nt at the time o f his third DUI of

fense.

Under the appli cable stat ute, Tenn. Code Ann. § 55-10-403( k)(3), any person claiming a right to t he vehicle forfei ted under thi s section:

may, not later

than thir

ty (30) da

ys from the date of receipt of the condit iona l order of forfeiture, file w ith the cou rt a clai m in writ ing, request ing a heari ng and stati ng suc h perso n’s or corporation’s i nterestin the vehicle. Fa ilure to file such a c lai m within t he time specif ied shall , without exc ept ion , co nst it utea waiver of s uch cla im. Tenn. Code Ann. § 5 5-10-40 3(k)(3) (S upp. 19 95). The record shows that a copy of the court’s conditi onal order of forfei ture was enter

ed on August 29, 1997 and was faxed to Defendant’ s attor ney on t hat date. There is nothing i n the record which shows that Defendant filed any claim i n writi ng or requesteda hearin g. Therefore, it appears he waived any r ight to hi s vehicl e.

Defendant also argues t hat the desi re of the TennesseeState L egisla ture in the 1996 amendment was to use forf eiture as a reme dial rather than a pu nitive
measure. See Tenn. Code Ann. § 55-10-403(k) (3)(Supp. 1996) . However, as noted above, Defendant’s of fense occurredprior to the effec tive date of theamendment and is thereby

governed by t he 1995 statute. Under that statute, the tri al court, upon a finding that this is a third or sub sequ ent D UI offe nse, s hall d eclare th e vehic le subject to forfeiture. Tenn. Code Ann. § 5 5-10-40 3(k)(1) (S upp. 19 95). We find that the trialcourt properly ordered the forfeiture i n this case as outline d by Tenn. Code Ann. § 5 5-10-40 3(k)(1) (S upp. 19 95). Th is issue is w ithout me rit.

Based on all the for egoing , we affirm th e judgm ent of the tria l court.-12- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:
(SEE C ONC URR ING OP INION) GARY R. WA DE, Presiding J udge

___________________________________ JAMES CURW OOD W ITT, JR., Judge