# FILED December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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 LA MAR CARDEN, ) JUDGE ) Appe llant. ) (Certifi ed Question of Law)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN G. MCDOUGAL JOHN KNOX WALKUP 701 Broad Street, Tivoli Center Attorney Generaland Reporter Suite One LL Chattanooga, TN 37402 MICH AEL J . FAHE Y, II Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 BILL COX Distri ct Attorney General JOHN BOBO Assistant Distri ct Attorney Courts Buil ding Chattanooga, TN 37402 OPINION FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 JERRY L . SMI TH, J UDGE-2- 

## OPINION

AHamilton County grand jury indicted Appell ant, 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 bar red by double jeopardy. After a hearing , Appellant’s motion was denied. Appellant pled guilty to D.U .I. - 3rd offense and Possession of Mar ijuana, but reserved the r ight to appea l based on a certified q uestion of law. Appellant r aises the issue whether the policy of the Hamilton County jail of holding someon e in custod y for a period of six hour s to “sober” them up is punit ive in nature and wheth er the Fifth Amendment protection against double jeopardy barred su b sequent prosecution of Appellant on the charges for which he was arres ted aft er confi nement under thi s policy .

After a review of the recor

d, we affirm the judgment of the trial court pursuant to Court of Criminal Appeals R ule 20.

Hamilton County law enforcement ar rested Appellant onNovember 4, 1995, for drivingunder the i nflue nce, possession of marijuana, and for possession of drug paraphernalia. Appellant refused to submit to a breath alcohol test and w as incarceratedin the HamiltonCounty jail. Appellant was held in custody for nine and one half hou rs befor e being rel eased on bail into his fath er’s custo dy.

The Hamilton County jail has a policy requi ring that anyone arres ted for Driving Under the Influence must be detained in that faci lity 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 A ppellantapproxi mately five hours before-3-

Appellantwas released. After the den ial of Appellant’s motion to d ismis s, Appellant pled guilt y while reser ving this que stion of law.
With respect to Appellant’s dou ble jeopardy issue, Appellant relies upon this Court’s decision in State v. Pennington , C.C.A. No. 0101-937-PB-0 0219, Davidson County (Tenn. Crim. App. , Nashville, Feb.1, 1996) to support his contention that detention pursuant to a policy of detaining arrestees after ar rest for D.U.I. makes subsequent p rosecution for D.U.I. v iolative of double jeopa rdy. How ever, the S upreme Court recently rele

ased State v. Pennington , S.Ct. No. 01-S-01-9607-P B-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 poli cywas to keep suspected d runk dr ivers off the road for a period of time after their arrest. In other words, the policy was intended , at least in part, to pr otect the public from individuals who had been arrested on suspicion of dr iving under the influence. This is a remedial purpose, not a punitive one, and therefore, the defendant’s initial appearance before the judicial commissioner do es not constitute ane ssentially criminal proceeding br

ought to “vindicate publ ic justice.” Pennington , Id
.. Accordingly, w

e affirm the trial court’s j udgment pursuant to Court of Cr iminal Appeals Rule 20.

____________________________________ JERRY L . SMI TH, J UDGE-4-

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ CHRIS C RAFT, SPECI AL JUDGE