FILED

December 15, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00248

)

Appellee, )

)

) BRADLEY COUNTY

VS. )

) HON. R. STEVEN BEBB

STEVEN OVERSTREET, ) JUDGE

)

Appellant. ) (Direct Appeal-D.U.I.)

FOR THE APPELLANT: FOR THE APPELLEE:

D. MITCHELL BRYANT JOHN KNOX WALKUP

P. O. Box 161 Attorney General and Reporter

Cleveland, TN 37364-0161

SANDY C. PATRICK

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

JERRY N. ESTES

District Attorney General

JOSEPH A. REHYANSKY

Assistant District Attorney

P. O. Box 1351

Cleveland, TN 37311

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
1Appellan t was also indicted for driving on a revoke d license . Appellant e ntered a guilty plea to

that charge and he does not challenge his conviction or sentence for that offense.

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OPINION

On February 4, 1997, a Bradley County jury convicted Appellant Steven

Overstreet of driving under the influence, second offense. After a sentencing

hearing on February 6, 1997, Appellant was sentenced to eleven months and

twenty-nine days in jail, with the sentence to be suspended and Appellant put on

probation after 45 days in jail. Appellant challenges his conviction, raising the

following issue: is there an inherent conflict between Tennessee Code Annotated

sections 55-10-401 and 55-10-408.

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

FACTS

On November 13, 1996, Appellant was indicted for driving under the

influence, second offense.1

 Count One of the indictment charged Appellant with

driving under the influence of an intoxicant or drug; or in the alternative, with

driving with a blood-alcohol content of .10% or more. Appellant pleaded not

guilty to this charge, and trial was held on February 7, 1997. 

Officer Chris Bates of the Cleveland, Tennessee Police Department

testified that around 6:30 a.m . on July 6, 1996, he and Officer Buddy Mitchell

were at a Cleveland convenience store when he saw a white Ford Tempo speed

into the parking lot and come to a sudden stop. Officer Bates testified that when
2Officer Bates did not testify about the results of the third test during either direct or crossexamination.

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Appellant got out of his car, he had to steady himself against the vehicle and he

had a look of confusion about him. Officer Mitchell recognized Appellant and said

that he knew that Appellant’s drivers’ license had been revoked. When the two

officers approached Appellant, they smelled a strong odor of alcohol on his

breath and person. When the officers asked Appellant whether he had been

drinking, he said that he had four beers and a glass of champagne the night

before. The officers then verified that Appellant’s drivers’ license had been

revoked. 

Officer Bates then administered three field sobriety tests to Appellant.

After Appellant failed at least two of these tests,2

 Officer Bates asked Appellant

to take a either a breath or blood test. Appellant agreed to take a blood test, and

the officers transported him to an emergency room for testing. The blood test

indicated that Appellant had a blood-alcohol content of .12%. 

Officer Bates also testified that during a search of Appellant’s car, he found

two empty beer cans that felt cold and had dew on them. 

Appellant testified that he had consumed the alcohol the night before he

was arrested. Appellant claimed that he did not feel impaired when he drove his

car on the morning of on July 6, 1996, and he stated that he felt he had passed

the field sobriety tests. Appellant did not challenge the accuracy of the blood test

results.
3

The reco rd ind icate s that the trial cou rt instr ucte d the jury tha t they c ould f ind Appellant guilty if

they found beyond a reasonable doubt that 1) he had been driving with a blood-alcohol content of .10% or

more, or 2) he had been driving under the influence of an intoxicant or drug. The court also instructed the

jury that evidence of a blood-alcohol content of .10% or more created a presumption that Appellant was

under th e influenc e of an into xicant or d rug, but the y were free to disrega rd that pre sum ption. 

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ANALYSIS

Appellant contends that his conviction for driving under the influence

should be reversed because Tennessee Code Annotated sections 55-10-401 and

55-10-408 are impermissibly contradictory and therefore, cannot constitutionally

coexist. Section 55-10-401 states, in relevant part,

It is unlawful for any person to drive or to be in physical control of any

automobile or other motor driven vehicle on any of the public roads and

highways of the state, or on any streets or alleys, or while on the premises

of any shopping center, trailer park or any apartment house complex, or

any other premises which is generally frequented by the public at large,

while:

(1) Under the influence of any intoxicant, marijuana, narcotic drug,

or drug producing stimulating effects on the central nervous system;

or

(2) The alcohol concentration in such person’s blood or breath is

ten-hundredths of one percent (.10%) or more.

Tenn. Code Ann. § 55-10-401(a) (1998). Section 55-10-408 states, in relevant

part,

For the purpose of proving a violation of § 55-10-401(a)(1), evidence that

there was, at the time alleged, ten-hundredths of one percent (.10%) or

more by weight of alcohol in the defendant’s blood shall create a

presumption that the defendant’s ability to drive was sufficiently impaired

thereby to constitute a violation of § 55-10-401(a)(1).

Tenn. Code Ann. § 55-10-408(a) (1998). Essentially, Appellant claims that these

two statutes give rise to different legal conclusions and, thus, the trial court

should have charged the jury only on section 55-10-408, thereby giving him the

opportunity to rebut the presumption of his intoxication.3
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An analysis of the recent history of these two statutes indicates that they

are not contradictory. Prior to 1995, section 55-10-401(a) stated,

It is unlawful for any person or persons to drive or to be in physical control

of any automobile or other motor driven vehicle on any of the public roads

and highways of the state of Tennessee, or on any streets or alleys, or

while on the premises of any shopping center, trailer park or any apartment

house complex, or any other premises which is generally frequented by the

public at large, while under the influence of any intoxicant, marijuana,

narcotic drug, or drug producing stimulating effects on the central nervous

system.

Tenn. Code Ann. § 55-10-401(a) (1994). In addition, section 55-10-408(b) stated

that

Evidence that there was, at the time alleged, ten-hundredths of one

percent (.10% ) or more by weight of alcohol in the defendant’s blood shall

create a presumption that the defendant was under the influence of such

intoxicant, and that the defendant’s ability to drive was impaired thereby,

sufficiently to constitute a violation of § 55-10-401. The provisions of this

subsection shall only apply if the defendant has no prior convictions for

violating the provisions of § 55-10-401.

Tenn. Code Ann. § 55-10-408(b) (1994). In 1995, the Tennessee General

Assembly amended section 55-10-408(a) to provide that

Evidence that there was, at the time alleged, ten-hundredths of one

percent (.10% ) or more by weight of alcohol in the defendant’s blood shall

be conclusive proof that the defendant was under the influence of such

intoxicant, that the defendant’s ability to drive was impaired thereby and

shall constitute a violation of § 55-10-401. 

Tenn. Code Ann. § 55-10-408(a) (1995). The Tennessee Attorney General

subsequently issued an opinion which stated that this 1995 amendment was

unconstitutional because it created a conclusive presumption of intoxication and

impairment that relieved the State of its burden of proving an element of the

offense. Tenn. Op. Att’y Gen. 95-117 (Nov. 28, 1995). The opinion suggested,

however, that the legislature could achieve the same result by making it illegal to

drive with a blood-alcohol content above a certain percentage. Id.
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In response to the Attorney General’s opinion, the legislature drafted a

proposed amendment, which would have essentially given section 55-10-401 its

current form and would have deleted section 55-10-408(a). The Attorney

General subsequently issued an opinion which stated that the proposed section

55-10-401 would be constitutional in that it would make it illegal to either drive

while under the influence of an intoxicant or with a blood-alcohol content of .10%

or greater. Tenn. Op. Att’y Gen. 96-008 (Jan. 24, 1996). The opinion suggested,

however, that it would be unwise to delete section 55-10-408(a) in its entirety.

Id. The opinion suggested that it would be better to have a subsection creating

a permissive presumption of intoxication when a driver had a blood-alcohol

content of .10% or greater because such a presumption would aid in defining

“under the influence” as set forth in section 55-10-401(a)(1). Id. The legislature

subsequently amended sections 55-10-401 and 55-10-408 to their present forms.

This statutory history indicates that in enacting sections 55-10-401 and 55-

10-408 in their current forms, the legislature did not create two contradictory

statutes. Rather, the legislature merely created alternative ways to charge a

defendant with impaired driving. A defendant could be charged under 55-10-

401(a)(2), in which case a test indicating a blood-alcohol content of .10% or

greater would be per se evidence of intoxication and im pairment. If however, the

charging instrument failed to specifically charge the elements of 55-10-401(a)(2),

the permissive presumption of section 55-10-408(a) would come into play to

assist in establishing intoxication and impairment. This conclusion is supported

by the express language of 55-10-408(a), which indicates that it is admissible for

“the purpose of proving a violation of § 55-10-401(a)(1)” and makes no mention

of subsection (a)(2). 
4Although Appellant does not directly challenge the constitutionality of section 55-10-401(a)(2)

itself, we no te that cou rts have c onsisten tly held that “per s e blood-a lcohol offe nse sta tutes” do not crea te

uncon stitutional pre sum ptions ab out eviden ce, but ins tead sp ecifically define prohibited c onduc t. See

Lester v. State, 253 Ga 235, 32 0 S.E.2d 142 (19 84); People v. Ziltz, 98 Ill. 2d 38, 455 N.E.2d 70 (1983);

State v. Vogel, 467 N.W .2d 86 (N .D. 1991 ); State v. O’Connor, 220 N.J. Super. 104, 531 A.2d 741

(1984); Forte v. State, 707 S.W .2d 89 (T ex. Crim . App. 198 6). 

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In short, we hold that sections 55-10-401 and 55-10-408 are not

unconstitutionally contradictory.4

 Further, because Appellant was charged

alternatively under both subsection 55-10-401(a)(1) and subsection 55-10-

401(a)(2), the trial court was correct when it instructed the jury on both

subsections. The State presented evidence that Appellant had been driving his

vehicle with a blood-alcohol content of .12% and Appellant never challenged this

evidence. Thus, the jury clearly had a basis for convicting Appellant under

subsection 55-10-401(a)(2). Appellant’s claim that he was not impaired is simply

not relevant under this subsection. This issue is without merit. 

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

JAMES CURWOOD WITT, JR.