# FILED September 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE JUNE 1997 SESSI ON

STATE OF TENNESSEE,

APPELLEE, )

) No. 01-C-01- 9608-CR-00343 ) ) Putnam County v. ) ) John A. Turnbu ll, Judge ) ) (Driv ing While Under the Influence ) MARK SPENC ER KING, ) ) APPELLA NT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Jacky O. Bellar John Knox Walkup Attorney at Law Attorney Gen eral & Repor ter 212 Main Street 500 Charlotte A venue Carthage, TN 37030 Nashvil le, TN 37243-0497 J. Branden Bell ar Janis L. Turner Attorney at Law Assistant Att orney Gener al 212 Main Street 450 James Roberts on Parkway Carthage, TN 37030 Nashvil le, TN 37243-0493 William A. Gibson Distric t Attorney General 145 South Jefferson Avenue Cookevil le, TN 38501 William S. Roberson Assistant D istrict A

ttorney Gener

al 145 South Jefferson Avenue Cookevil le, TN 38501

OPINION FILE D:____________________________
AFFIRMED
Joe B. Jo nes, Pre siding Jud ge1 The United States Supreme Court and the appellatecourts of this state have held

that the word “presumption” should not be use d in juryinstructi ons. The word “ inference” should be used instead. Sandstrom v. Montana , 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); State v. Co ker , 746 S.W.2d 167, 170 (Tenn. 1987), cert
. denied , 488 U.S. 871, 109 S.Ct. 180, 102 L.E d.2d 149 (1988). 1 

## O P I N I O N

The appellant, Mark Spencer King (defendant), was convic ted of drivi ng whil e under the influence (DUI) following a bench trial. The sole issue which t his Co urt m ust re solve is whether evidence of the chemical breath test should have been admitte d into evidence. The defendant argues t his eviden ce should not have been introduced because the 1995 amendment to Tenn. Code Ann. § 55-10-408(b), which ren dered the statute unconstitutional, was in effect at the time he was arrested. After a thor ough revi ew of the record, the b rie fs submitted by the parties, and the law governi ng the issue presented for revie w, it is theopinion of this C ourt that the j udgment of the trial cour t should be affirmed. The defendant moved the tr ial court to exclude as evidence the results of the chemical breath test. The test re vealed the defendant had a blood alcohol content of .14 %. The trial co urt agreed w ith the defendant that Tenn. Code Ann. § 55-10- 408 , a s amended in 1995, wa s unconstituti onal. However, the court concl uded it could appl y the standard contai ned in the statute before the amendment . Thus, the court dismissed the defendant ’s motion to suppress, and th e test results were in tro duced into ev idence over the defendant’s strenuous objection.

I.

A review of the initial statutory provisi ons, the amendments tothe statute, and t he eff ect o f th e cha nges are re levan t to t he in quiry. Prior to 1995, Tenn. Code Ann. § 55- 10-408(b) stated:
Evidence that there was, at the time al leged, t en-hu ndredths of one percent (. 10%) or more b y wei ght of alcohol i n the defend ant’s blood shall c reate a presumpti on that the defendant was under

the influence of such intoxicant , and that defendant ’s ability

to drivewasimpaired thereby, suff icientlyto constitute a v iolation of § 55- 10-401. 12 In 1995 the Tennessee General Assembly amended Tenn. Code Ann. § 55-10-408. The statute, as amended, stated:

Evi dence th at there wa s, at the time al leged, ten hundr edths of one p erce nt (. 10%) or mo re by w e ight of alcohol in the defendant ’s blood shall be conc lusive pr oof that the defendant was under the influenc e of such intox icati on, t hat the defendant ’s ability to drive was impair ed thereby and shall constitute a v iolation of § 55- 10-401. 1995 Tenn. Pub. Acts, Ch. 517, § 1. This amended statute became effecti ve on July 1, 1995. It was in effect when the defendant was arrested on November 12, 1995. The Atto rney General subsequently rendered an opinion w hich stated the “conclusi ve proof” pr ovision of thestatute rendered the statute unconsti tutional. Tenness ee Attorney General Opini on 95-117 (November 28, 1995). The Tennessee General Assembl y amen ded the 1995 Act in 199 6. This amendment returned the s tatute to its status prior to the 1995 amendment. 1996 Tenn. Pub. Acts, Ch. 915, §§ 2, 3. The 1996Act be came effective upon its passa ge. The Act was passed by the Tennessee Ge neral Assembly on April 24, 1996. Governor Sundquist signed the Ac

t on May 8, 1996.

II.

The trial cour

t was correct in finding the 1995 Act was unconstitut ional. The court was also correct in apply ing the act in exist ence prior t o the 1995 Act. Therefore, th e trial court properlyadmitted the results of the chemical breath test, and tr eated the result s as an inference that the defendant’s abilit y to operate amotor vehic le was i mpaired pursuant to Tenn. Code Ann. §§ 55 -10-401, et

. seq . In this juri sdiction, an u nconstitutional statute or an amend ment to a constituti onal statute is void ab initio -- from the date of its enactment. State v. Dr iver , 598 S.W.2d 774, 776 (Tenn. 1980); Leech v. Amer ican Booksellers Ass’n, Inc. , 582 S.W.2d 738, 740 (Tenn. 1979 ); State v . Dixon , 530 S.W.2d 73, 74 (Tenn. 1975). Therefore, the unconstitut ional3

provisi on does not have the effect of amending or s uperseding t he existi ng constitut ional statute. Id . In other words, the pr ior con stitutional statute is unaffected by the effort to amend or supersede the statute, and i t remains in ful l force and effect.

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_ JOE B. JONES, PRESI DING JUD GE

CONCUR:

______________________________________ WILLIAM M. BAR KER, JUDGE

______________________________________ TH OMAS T. WOODALL, JUDGE