# FILED
December 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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 ) Appe llant. ) (Direct Ap peal-D .U.I.)

FOR THE APPELLANT : FOR THE APPELLEE : D. MI TCHELL BRYANT JOHN KNOX WALKUP P. O. Box 161 Attorney Generaland Reporter Cleveland, TN 37364-0161 SANDY C. P ATRICK Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 JERRY N. ESTES Distri ct Attor ney General JOSEPH A. REHYANSKY Assistant Distri ct Attor ney P. O. Box 1351 Cleveland, TN 37311
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 Appellan t was also indicted for driving on a revoke d license . Appellant e ntered a guilty plea to that charge an d he does not chal lenge his convicti on or sentence for that off ense. -2- 

## OPINION

On Febru ary 4, 1 997, a Brad ley Co unty jur y conv icted A ppella nt Ste ven Overstreet

of driv ing under the inf lue nce, second offense. After a sentencing hearing on Fe bruar y 6, 199 7, App ell ant was sentenced to el even months and twenty-ni ne days in j ail, with the sentence to be suspended and Appel lantput on probation after 45 day s in jai l. Appell ant chall enge s his convi ction, r aising t he followi ng issue: is there an inherent conflic t between Tennessee Code Annotated sections 55- 10-401 and 55-10-408.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

O n November 13, 1996, Appel lant was i ndicted for drivi ng un der th e influence, second offense. 1 Count One of the i ndictment char ged Appellant

with drivi ng under th e influenc e of an into xicant or dr ug; or in the alternative, w ith drivi ng with a bl oo d- alcohol content of .10% or more. Appellant p leaded not guilty to this ch arge, an d trial was h eld on F ebruary 7, 1997
.
Officer Chris Bates of the Cl eveland, Tennessee Pol ice Department testif ied that aro und 6 :30 a.m . on Ju ly 6, 199 6, he a nd O ffic er Budd y Mitch ell
were at a Cleve land con venienc e store w hen he saw a w hite Ford Tempo speed into the parkin g lot and come to a sudden stop. Officer Bates testified that

when2 Officer Bates did not t estify about the r

esults of the third test duri ng either direct orcrossexamination. -3- Appellant

got out of his car, he had to steady himself against the vehicl e and he had a look of con fusion abou t him. O fficer M itchell re cogn ized A ppella nt and said thathe knew that Appellant’s drivers’ li cense had be en revok ed. When the two officers approached Appel lant, the y sme lled a st rong o dor of a lcoho l on his breath and perso n. When the officers asked Appell ant whether he had been drin king, he said that he had four beers

and a glass of c hampagne the nigh t before. The officers t hen v erifi ed that Appell ant’s drivers’ l icense had been revoked
.
Officer Bates then a dmin istered three fie ld s obriety tests to Appe llant. After Appell ant failed at l east two of these tests, 2 Officer Bates asked Appell ant to take a eit her a breath or blood test . Appellant agreed to tak

e a blood test , and the off ice rs t ran spor

ted him to an emergency room for testing. The blood test indicated that App ellant had a blood- alcoho l content o f .12%.

Officer Bates also testifi ed that duri ng a search of Appel lant’s car, he found two em pty beer c ans tha t felt cold and had de w on the m.
Appellant

testif ied that h e had consumed the alc ohol the ni ght before he
was arrested
. Appellant c laimed that he did not feel impaired when he dro ve his
car on the morning of on July 6, 1996, and he stated that he felt he had passed the field sobri ety tests. Appellant d id not chal lenge the accuracy of the blood test results.3 The reco rd ind icate s tha t the tr ial cou rt instr ucte d the jury tha t they c ould f ind A ppe llant g uilty if they found beyond a reasonabl e doubt that 1) he had been driving with a blood-al cohol content of .10% or more, or 2) he had been driving un der the i nfluence of an intoxi cant or drug.The court also i nstructed the jury that evidence of a blood-alcohol content of .10% or more created a p resumption 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. -4- ANALY SIS
Appellant

contends that

his convi ction fo r dr iving under the influence shou ld be reversed because Te nnessee Code Annotated sect ions 55-10- 401 an d 55-10-408 are im perm issibly contradic tory and therefo re, can not co nstitutio nally coexist. Se ction 55-1 0-401 s tates, in relev ant part, It is unl awf ul for any pe rson to d rive or to be in physica l control of an y aut omo bile or other motor driven vehicle on any of the publ ic roads and highways of the state, or on any street s or all eys, or whi le on the pre mises of any shopping center, tr ailer park or any apart ment house complex, or any other premises which is g enera lly frequented by the publi c at large, while: (1) Under theinfluence of any intoxic ant, marijuana, narcotic drug, or drug pro ducing stimulatin g effects on the cen tral n ervous system; or (2) T he alcoh ol conce ntration in s uch pe rson’s blo od or bre ath i s ten-hundredt hs of one percent (.10%) or more. Tenn. Code Ann. § 55-10-401( a) (1998). Section 55-10-408 states, in relev ant part, For the purpose of proving a violation o f § 55-10-401(a)( 1), evi dence that there was, at thetime all eged, ten-hundr edths of on e perc ent (.10%) or more by weig ht of alc ohol in the de fenda nt’s blo od sha ll create a presumption that the de fendan t’s ability to drive was suffi cientl y impaired thereby to cons titute a violation of § 55-10-4 01(a)(1). Tenn. Code Ann. § 55-10-408(a) (1998). Essentially, Appellant cl aims that these two statutes give rise to different legal conclusi ons and, thus, the tri al co ur t shou ld have charged the j ury only on section 55- 10-408, thereby gi ving him the opportunit

y to rebut

the presumpti on of his i ntoxicat ion. 3-5- An analysis of the recent history of these t wo statutes

indicates that th ey are not contr

adictory . Prior

to 1995, sect ion 55-10-401( a) stated, It is unlawf ul for any

person or persons to drive or to be in physical control of any automobile or

other motor driven vehi cle on any of the public r

oads and highways of the state of Tenn essee, or on any st reets or al leys, or while on the premises of any shopping center, trailer park or any apart ment house complex, or any other premises which is general ly frequented by the public at large, whi le under the influence of any int oxicant, marijuana, narco tic drug, or drug producing stimulat ing effec ts on the cent ral nervous system. Tenn. Code Ann. § 55-10-401(a)(1994). I n additi on, secti on 55-10-408(b) stated that Evidence that ther e w as , at the t ime alleged, ten-hundredt hs of one percent(.10% ) or more by weig ht of alc ohol in the de fenda nt’s blo od sh all create a presumption that the defendant was under the i nfluence of such intoxi cant, and that the de fendan t’s ability to drive was imp aired thereby, sufficiently to constit ute a viol ation of §55-10-401. The prov isionsof this subsection shall only a pply if the de fendan t h as no pri or convict ions for violat ing the prov isions of § 55-10-401. Tenn. Code Ann. § 5 5-10-40 8(b) (199 4). In 1995 , th e Tennesse e General Assembly amended section 55- 10-408(a) to provide t hat Evidence that the re was , at the tim e alleged, ten-hundredt hs of one percent(.10% ) or more by weight of alcohol i n the defen dant’s blood shall be conclusive proof that the defendant

was un der the influence of such intoxicant, that the de fendan t’ s abi lity to drive was impaired t hereby and shall con stitute a violatio n of § 55- 10-401
. Tenn. Code Ann. § 55-10-408(a)(1995). The Tennessee Att orney General subs eque ntly issued a n opini on which stated that thi s 1995 amendment was unconstit utional because it cr eated a conclusiv

e presumption of

intoxi cation and impairmentthat rel ieved the State of it s burde n o f provi ng an element of t he offense. Tenn. Op. Att’ y Gen. 95-117 (Nov. 28 , 1995). The opinion suggested, however, that theleg isl atu re coul d ac hieve t he s ame result by m aking it illega l to drive with a b lood-alco hol conte nt above a certain p ercenta ge. Id.-6- In response to t he Attorney Gener al’s opi nion, t he legisl ature draf ted a proposed amen dmen t, which would have essential ly given section 55- 10-401 its
curre nt form and would have d eleted sect ion 55-10-408(a). The Attorne y General subsequently issued an opini on which stated that the proposed secti on 55-10-40 1 would be co nstitutional in that it would m ake it illegal to either driv e while under the in fluence of an intoxi cant or wit h a blood-alcohol content of .10%
or greater. Tenn. Op. Att’ y Gen. 96-008 (Jan. 24, 1996). The opi nion suggested, however, that it would be un wise to delete se ction 55-10-40 8(a) in its entirety. Id. The opinion suggested that it would be better to have a subs ection creating
a permissive presumption of intoxi cation when a dr iver had a bl ood- alco hol contentof .10% or greater beca u se such a presumptio n would aid i n defini ng “underthe infl uence” as set forth in section 5 5-10-40 1(a)(1). Id. The legislature subs eque ntly amend ed sections 55-10-4 01 and 55-10-408 to their present forms.

This statutor

y histor y indicates that in enacting sect ions 55-10-401 a nd 55- 10-408 in their c urren t forms , the leg islature did no t create two co ntradic to ry statute s. Rather, t he legisl ature merely created al ternati ve ways to char ge a defendantwith impai red driv ing. A defend ant could be charged under 55-10- 401(a)(2), in which case a test i ndicati ng a blood -alcohol content of .10% or greater would b e per se evidenc e of intoxica tion and im pairme nt. If however , the charging instrument failed t o specifi cally ch arge the elements of 55-10-401 (a)(2), the per mi ssive pre sump tion of sec tion 55-1 0-408(a ) would c ome in to play to assist in establ ishing i ntoxicat ion and im pairm ent. T his conclusion i s supported by the exp ress la ngua ge of 5 5-10- 408(a ), which indica tes tha t it is admissibl e for “the purpose of prov ing a viol ation of § 55-10-401(a)(1)” andmakes no mention of subse ction (a)(2 ).4 Although Appel lant does not directl y chall enge the constitution alit y 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. S tate , 253 G a 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. St

ate, 707 S.W .2d 89 (T ex. Crim . App. 198 6). -7- In short, we hold tha t sections 55-10 -401 and 5 5-10-408 a re no t unconst itu tionally contradictory. 4 Further, because Appellant was charged
a lternativ ely under both subsect ion 55-10-401( a)(1) and subsect ion 55 -10 - 401(a)(2), the tri al court was correct when it instructed t he jury on bo th subsections. The S tate presented evidence that Ap pellan t had b een d riving his vehicle with a bl ood-alcohol content of .12% and Appellant

neverchalle nged this evidence. Thus, the jur y clearl y had a b asis for convicti ng Appellant un der subsection 55-10 -401( a)(2). A ppella nt’s claim that he was n ot imp aired is simp ly not releva nt unde r this subs ection. T his issue is without m erit.

According ly, the j udgment of t he tr ial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ JAMES CURWOOD WITT, JR.