FILED

December 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CR-00378

)

Appellee, )

)

) HAMILTON COUNTY

VS. )

) HON. GARY D. GERBITZ

DONNIE LAMAR CARDEN, ) JUDGE

)

Appellant. ) (Certified Question of Law)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN G. MCDOUGAL JOHN KNOX WALKUP

701 Broad Street, Tivoli Center Attorney General and Reporter

Suite One LL

Chattanooga, TN 37402 MICHAEL J. FAHEY, II

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

BILL COX

District Attorney General

JOHN BOBO

Assistant District Attorney

Courts Building

Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
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OPINION

A Hamilton County grand jury indicted Appellant, Donnie Carden, with charges

of Driving Under the Influence and Possession of Marijuana. Appellant filed a motion

to dismiss based upon his contention that prosecution of these charges was barred by

double jeopardy. After a hearing, Appellant’s motion was denied. Appellant pled guilty

to D.U.I. - 3rd offense and Possession of Marijuana, but reserved the right to appeal

based on a certified question of law. Appellant raises the issue whether the policy of

the Hamilton County jail of holding someone in custody for a period of six hours to

“sober” them up is punitive in nature and whether the Fifth Amendment protection

against double jeopardy barred subsequent prosecution of Appellant on the charges

for which he was arrested after confinement under this policy .

After a review of the record, we affirm the judgment of the trial court pursuant to

Court of Criminal Appeals Rule 20.

Hamilton County law enforcement arrested Appellant on November 4, 1995, for

driving under the influence, possession of marijuana, and for possession of drug

paraphernalia. Appellant refused to submit to a breath alcohol test and was

incarcerated in the Hamilton County jail. Appellant was held in custody for nine and one

half hours before being released on bail into his father’s custody.

The Hamilton County jail has a policy requiring that anyone arrested for Driving

Under the Influence must be detained in that facility for at least six hours. The county

sheriff testified that this policy is based upon public safety considerations. In Appellant’s

case, Appellant’s father posted bond for Appellant approximately five hours before
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Appellant was released. After the denial of Appellant’s motion to dismiss, Appellant

pled guilty while reserving this question of law.

With respect to Appellant’s double jeopardy issue, Appellant relies upon this

Court’s decision in State v. Pennington, C.C.A. No. 0101-937-PB-00219, Davidson

County (Tenn. Crim. App. , Nashville, Feb.1, 1996) to support his contention that

detention pursuant to a policy of detaining arrestees after arrest for D.U.I. makes

subsequent prosecution for D.U.I. violative of double jeopardy. However, the Supreme

Court recently released State v. Pennington, S.Ct. No. 01-S-01-9607-PB-00133,

Davidson County (Tenn., Sept. 8, 1997) overturning this Court’s decision in that matter.

In that opinion, the Supreme Court specifically held that detention policies such as the

one at issue in this case do not invoke the protections of double jeopardy. 

In this 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.”

Pennington, Id..

Accordingly, we affirm the trial court’s judgment pursuant to Court of Criminal

Appeals Rule 20.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

CHRIS CRAFT, SPECIAL JUDGE