# FILED
October 16, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 19 97 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9605-CC-00209

) ) Coffee County v. ) ) Honorable Gerald L. Ew ell, Sr., Judge ) MARK T. SCISNEY, ) (DUI While Driving Commerc ial Vehicle) ) Appellant. )

CONCURRING OPINION

I concur in the results r eached in the lead opinion. How ever, I am reluctant to adopt the conclusi on that under Tennessee law, an I ntoximeter 3000 reading of .04 percent is suffici ent, by itself, to prov e beyond a reasonable doubt that the defendant was driving with a .04 percent blood a lcohol concentration.
As for the sufficiency of the evi dence in this case, I do not bel ieve that the conviction is based solely upon the breath test result of.04 percent. In the light most favorable to the state, the evidence reflects that the de fendant had a couple of tall beers in Georgia sev

eral hours earlier. The officer s smelled an odor of alcohol upon the defendant’s person when he w as stopped in Coffee County. The officers waited thirty to forty minutes

before administering the brea th test. These facts, coupled w ith the breath test reading of .04 per cent, lead me to conclude that the ev idence was sufficient to convict the defendant bey ond a reasonable doubt for driv ing a commercial vehicle in Coffee County, Tennessee, with, at least, a .04 blood alcohol concentrati on.2 On the other hand, I am not ready to concede that the Intoximeter 3000 reading in this case provides sufficient proof, by itself, to find be yond a reasonable doubt that the defendant’s blood alcohol concentration was, in fact, .04 percent. The fact that in any given test, the Intoximeter 3000 r eading has a plus or minus . 005 percent range of deviation from the actual blood alcohol conc entration means that the actual concentration could be .035 percent when the test r egisters a .04 percent r esult. Also, this deviation, coupled with the instrument’s rounding down to the nearest hundredth, means that an actual concen tration of .054 percent could reg ister as .04 percent, as well. This

reflects a total deviati on range of 20 thousandths of one percent for any given breath t

est result. In other w

ords, any given tes

t that registers .04 per

cent has a 25 percent chance of reflecting an actual concentration of less than .04 percent. In my opinion, the test, alon e, cannot justify a finding beyond a reasonable doubt that a person’s blood alcohol conc entration is actually

.04 percent. Put another w ay, I do not believe that it woul d allow any rational juror’s mind to rest eas ily upon the moral certainty of the actual conc entration being .04 percent.

Moreover, I am not conv inced that the lead opinion’s interpretation of legislative intent

based upon the wording of our statutes is wholly

accurate. I note that T.C.A. § 55-10-408 provides that a rebuttable presumption of int oxication and impairment arises upon “ evidence that there was . . . ten- hundredths of one percent (.10%) or more by w

eight of alcohol in the defendant’s blood . . . “ relativ e to driving under the influence of an intoxicant. Thus, un der State v. Sensing , 843 S.W.2d 412 (Tenn. 1992), a reading of .10 percent from an Intoximeter 3000 would constitute such “evidence” that woul d be probative of the issue of int oxication, at least as a

matter of legal inference.

Given the legislatur

e’s wording in the rebuttable presumption statute, I believe it to be sig nificant that no such wordi ng exists in the per se offense statutes,3

which expressly

refer to the “blood alcohol c oncentration” amount, not “ev idence” of such amount. See T.C.A. §§ 55-10-401(a)(2) and 55-50-408. Obviously , if the legislature had meant for the pr ohibited blood alcohol concentr ation to be that as evidenced by a chemical test , it could have said so.

Finally, I see some si gnificance in the fact that the ca ses upon which the lead opinion relies rela

te to .10 percent per se provisions that are al ternatives to the driving under the influence provisions. As i ndicated in State v. Lentini , 573 A.2d 464, 465 (N.J. Super. Ct. App. Div. 1990), studies reflect that a high percentage of pe ople are impaired at .08 percent and almost all are impaired at .10 p ercent. Thus, as a matter of practice and policy , it makes little difference to the dangerous risk inv olved whether a person’s blood alcohol concentration is ac tually .095 percent rather than .10 percent. However, there is no similarly proven relationship bet ween .035 percent and .04 percent. I cannot assume that t he legislature thought them to be the same for commercial driving purposes.

In sum, I concur in affirming th e judgment of conviction g iven the sufficiency of the convicti ng evidence. Howev er, I refrain from concluding that the Intoximeter 3000 test resul t of .04 percent, alone, would be sufficient to convict under T.C.A. § 55-50-408.

_____________________________ Joseph M. Tipto n, Judge