          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                         SEPTEMBE R SESSION, 1998       February 16, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,             )       C.C.A. NO. 01C01-9710-CC-00499
                                )
          Appellee,             )
                                )       COFFEE COUNTY
V.                              )
                                )       HON . GER ALD L. E WEL L, SR.,
                                )       JUDGE
LEO NARD HUS TON PRAT ER, JR ., )
                                )
          Appe llant.           )       (DUI, THIR D OFF ENSE )



FOR THE APPELLANT:                      FOR THE APPELLEE:

DOYLE E. RICHARDSON                     JOHN KNOX WALKUP
128 W. Lincoln Street, Ste. B           Attorney General & Reporter
Tullahoma, TN 37388
                                        DARYL J. BRAND
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        MICHAEL LAYNE
                                        District Attorney General

                                        STEP HEN E . WEITZ MAN
                                        Assistant District Attorney General
                                        P.O. Box 147
                                        Manchester, TN 37355




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       The Defendant, Leonard Huston Prate r, appe als as o f right his conviction of

third offense DUI following a jury trial in the Coffee County Circuit Court. The trial

court sentenced him to eleven (11) months and twenty-nine (29) days, suspended

after 180 days, suspended his driver’s licen se for te n (10) y ears, a nd fine d him

$5,000. The trial court also ordered the conditional forfeiture of Defendant’s vehicle.

In this appeal, Defendant raises the following four (4) issues:


              1. Whether Defendant’s rights against double jeopardy
              were violated;

              2. Wh ether D efenda nt was properly convicted o f third
              offense DUI;

              3. Wh ether the trial court committed sentencing errors;
              and

              4. Whether the trial court erred in ordering the conditional
              forfeiture of D efenda nt’s vehicle .


After a careful review of the record, the judgment of the trial court is affirmed.



       On September 9, 1996, Investigato r William Marco m of the Coffee C ounty

Sher iff’s Office was driving home on Highway 53 when a pickup truck crossed the

center line into his path, “nearly strikin g the veh icle in front of [h im].” Acco rding to

Marcom , he was then forced to swerve onto the rig ht shou lder to avoid a collision.

Investigator Marcom made a U-turn, followed the pickup , and th en turn ed on his

dashboa rd blue light and his blue stro be ligh ts in the grill to ale rt the dr iver to pu ll

over. Th e driver of the pickup tru ck was Defen dant.




                                             -2-
       In asking Defendant for his driver’s license, Marcom noticed the odor of

alcohol coming from inside the vehicle. Investigator Marcom said that he asked

Defendant how much he had had to drink that evening and Defendant responded

“about six beers.”       When Defendant got out of his truck, Marcom observed

Defendant to be unsteady on his feet. He also noticed that Defendant’s speech was

slurred and that his eyes were bloodshot. Marcom administered one field s obriety

test, the alphabet test. Defendant was not able to correctly complete the test as he

missed about every fourth letter a nd then finally had to s top at the le tter “P.”

Investigator Marco m radio ed for De puty Lee Nettles to a ssist in the a rrest. Dep uty

Nettles also n oticed that D efend ant wa s uns teady on his feet. Nettles testified that

at one p oint he ha d to grab Defen dant’s arm to preven t him from falling over.



       Once they arrived at the Coffee County Jail, Officer Lisa Brazier “booked”

Defen dant. She testified that Defendant fit the description of someone who was

under the influence of alcohol. Sergeant Rodney Banks then spoke with Defendant

about taking a breath a lcohol tes t, and De fendan t subseq uently ag reed to ta ke it.

Sergeant Banks conducted the breath alcohol test using the Intoximeter 3000

mach ine. The report sh owed D efenda nt’s breath alcohol lev el to be .21 percen t.



       Defendant testified that prior to September 9, 1996, he had been in the midst

of a divorce tha t he didn’t w ant. He sa id that it h ad be en a ve ry difficult tim e in his

life, and that at times he was “b ezerk.” D efenda nt testified tha t he had been a t a

friend’s house, Floyd Edsel Jones, on September 9, 1996, to watch Monday Night

Footb all. He testified that he had a few drinks of George Dickel whiskey and that

Edsel had a lso be en drin king fro m the sam e bottle of Ge orge D ickel. He als o said

that he had eaten some chips and dip that night at Edsel’s house, however, Edsel

                                             -3-
testified that no chips or dip had been served that night. Defendant testified that

when he left Edsel’s house that the liquor bottle was a bout ha lf full. Accordin g to

Defen dant, he did not feel under the influence of alcohol when he left Edsel’s house.

Edsel also te stified th at De fenda nt did not app ear to be dru nk wh en he left Eds el’s

house. Defendant testified that the road surface was uneven which cause d him to

stum ble following th e depu ty’s stop. Defendant also testified that the straw used for

the breath alcohol test fell on the floor and that it could have affected the accuracy

of the test results. However, Sergeant Banks denied that the straw fell on the floor

and said that even as suming tha t it had, that he would h ave obtained a new straw

before administering the test to Defendant.           Defendant had previously been

convicted of two DUI’s, the first on November 29, 1988, in Warren County and the

second o n March 6 , 1989, in Coffee County.



       As a result of the incident on September 9, 1996, Defendant was indicted by

the Coffee County Grand jury in March 1997 on two counts of DUI. The first count

alleged a violation of Tenn. Code Ann. § 55-10-401(a)(2), driving with a blood or

breath alcohol level at or above 0.10 percent. The second count alleged a violation

of Tenn. Code Ann. § 55-10-401(a)(1), driving while under the influen ce of intoxic ant.

Following a jury trial, Defendant was found guilty of both counts. During the second

phase of the trial, the jury found that it was Defendant’s third DUI offense and set the

fine at $5,000. At the sentencing hearing, the trial court sentenced Defendant on

only one count to wit: driving with a blood or breath alcohol level at or above 0.10

percen t. The cou rt sentenced him to eleven (1 1) months and twenty-nine (29) days

in prison, suspended after 180 days. The court also suspended his license for ten

(10) years, ordered Defendant to pay the $5,000 fine as set by the jury, and ordered

the condition al forfeiture of Defendant’s vehicle. Following the court’s denial of

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Defe ndan t’s motion for new tria l, the trial court clarified the record by merging count

two of th e indic tmen t into co unt on e. Def enda nt time ly filed this appe al.



                                              I.



       Defendant argues that he was subjected to double jeopardy because the State

charged in its indictment and the jury considered two counts of driving while under

the influence of an intoxicant. In count one, Defendant was charged with driving

while the concentration of his blood or breath alcohol level was 0.10 percent or

higher. Tenn. Code Ann. § 55-10-401(a)(2). In count two, Defendant was charged

with driving while under the influence of an intoxicant. Tenn. Code Ann. § 55-10-

401(a)(1). Both counts were charged as third offenses. The verdict form shows that

the jury con victed De fendan t on both c ounts a s charg ed in the in dictme nt.



       The trial judge subsequently sentenced Defendant to only one count of driving

while under the influence of an intoxicant as evidenced in his sentencing order and

in the judgme nt. Following the he aring on the mo tion for new trial, the trial court

entered an order merging the second count into the first count to resolve any

confusion. Howe ver, the trial court stated that its previous sentencing order had

actually accomplished the same purpose.



       After a careful review of the record, we find the double jeopardy argument to

be without m erit. The d ouble jeo pardy cla uses o f both the United States and the

Tennessee constitutions have been interpreted to “protect[] against a second

prosecution for the same offense after acquittal.           It protects against a second

prosecution for the s ame offens e after c onvictio n. And it protec ts aga inst m ultiple

                                             -5-
punish ments for the sam e offense .” North Carolina v. Pearce, 395 U.S. 711, 717,

89 S. Ct. 2072, 2076, 23 L. Ed. 2 d 656 (1 969); State v. Phillips, 924 S.W.2d 662,

664 (Tenn. 1996). It is true that both counts in the case sub judice arose from a

singular incident. However, double jeopardy does not apply here because count one

required a showing by the State that Defendant was driving and had a blood or

breath alcohol level at or above 0.10 percent. There is no such requirement under

count two. In count two, the State was required to prove that Defendant was “[u]nder

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)(1). Count one does not require that proof, but merely the showin g of a

specified blood or brea th alco hol leve l. “[T]wo offens e are n ot the s ame for dou ble

jeopardy purpos es whe n each requires a proof o f a fact that the other do es not.”

State v. Black, 524 S.W .2d 913, 924 (Tenn. 197 5).



      Furthermore, only one sentencing judgment was entered for a violation of

Tenn. Code Ann. § 55-10-401. This Court has noted, “the trial court’s entry o f only

one judgment of conviction imposing only one sentence . . . protects the defendant

from receiving multiple punishments for the same offense. No doub le jeop ardy p eril

exists.” State v. Michael Addison, C.C.A. No. 02C01-9503-CR-00078, slip op. at 7,

Shelby Coun ty (Tenn. Crim. App, Jackson, Nov. 25 , 1997), perm. to appeal denied

(Tenn ., June 29, 19 98). W e find th at De fenda nt was not su bjecte d to m ultiple

punish ments for the sam e offense , and ther efore, this iss ue is witho ut merit.



                                           II.




                                           -6-
       Defendant argues ne xt that he shou ld not have been convicted of third offense

DUI because his prior two DUI convictions did not expressly state whether or not he

actually ha d a blood or breath alcohol lev el in exces s of .10 pe rcent.



       Tenn. Code Ann. § 55-10-403(a)(3) requires enhanced penalties for persons

previo usly convicted of driving while under the influence of intoxicants, unless the

convictions occurred more than ten years apart. Specifically, the statute provides

that “every con viction for a vio lation of § 55-1 0-401 . . . shall be cons idered in

determ ining the n umbe r of prior offen ses.” Te nn. Co de Ann . § 55-10 -403(a)( 3).



       Tenn. Code Ann. § 55-10-403(a)(3) does not require that the prior convictions

involve a blood or breath alcohol level. In fact, this Court has stated, “it is the

quantity, not the qu ality of the prior offenses that govern.” State v. Mahoney, 874

S.W.2d 627, 630 (T enn. Crim. A pp. 1993), perm. to appeal denied (Tenn. 1994). As

evidenced by the record, Defendant’s two prior convictions were for violations of

Tenn. Code Ann. § 55-10-401, and the two prior DUI convictions occurred within ten

years of the present offense. Therefore, he was properly convicted and sentenced

as a m ultiple offend er to third offe nse DU I. This issu e is withou t merit.




                                            III.



       Defendant argues that the penalties imposed against him are too severe and

should be reduced. As discussed in the previous issue, Defendant’s conviction of

                                            -7-
third offense DUI was warranted in this case.          Tenn. Code Ann. § 55-10-403

mandates penalties for a conviction of third offense DUI by requiring the following:

             a fine of not less than one thousand one hund red dollars
             ($1,100) nor more than ten thousa nd dollars ($10 ,000),
             and the pe rson o r perso ns shall be confined in the cou nty
             jail or workh ouse fo r not less th an one hundre d twenty
             (120) days nor more than eleven (11) m onths and tw enty-
             nine (29) days, and the court shall prohibit such convicted
             person or persons from driving a vehicle in the state of
             Tennessee for a period of time of not less than three (3)
             years nor more than ten (10) years.

             ...

             All persons sentenced under subse ction (a ) shall, in
             addition to service of at least the minimum sentence, be
             required to serve th e differe nce b etwee n the tim e actu ally
             served and the maximum sentence on probation.


Tenn. C ode Ann . § 55-10-403 (a)(1) and (c).



      “A senten ce for DU I [ ] does not involve a range. A defendant convicted of

DUI automatically receives a sentence of eleven months and twenty-nine days.

Accordingly, enhancement and mitigating factors are not used in determining the

length of a DUI sentences. T enne ssee Code Anno tated s ection 40-35 -210( f) is

clearly inapplicable to D UI sentenc ing.”       State v. Kenneth Eugene Troutman,

__S.W.2d __No. 03S01-9705-CC-00049, slip op. at 5, Washington County (Tenn.

Crim. App., Knoxville, Nov. 9, 1998). “While trial courts cannot deviate from the

length of the DUI sentence, trial courts do reta in som e discr etion in determining what

portion of the eleven m onth and twe nty-nine day sen tence a defe ndant will serve in

confineme nt.” Id.



      In determ ining w hat po rtion of th e ma ndate d sen tence shall be served in

confinem ent, a trial court need only consider the principles of sentencing and

                                           -8-
enhancement and mitigating fac tors in order to com ply with the misdemeanor

senten cing statu te. See id. at 7; Tenn. Code Ann. § 40-35-302.



       In the case sub judice, sentencing was held before Troutman was filed, and

the trial court did set forth findings of fact. In its sentencing order, the trial court

found that Defendant had a previous criminal history and had no hesitation about

committing a crime when the risk to human life was high. See Tenn . Code Ann. §

40-35-114(1) and (10). The da ta report reveals that Defendant had convictions for

leaving the scene of an accident, public intoxication, and reckless driving. T his is

certain ly enough to determine that Defendant has a criminal history. Furthermore,

the circumstances of the offense for which Defe ndan t stand s con victed a re certa inly

the type that involve a high risk to human life.        Investigator Marcom testified that

Defendant crossed the yellow line on a public highway and nearly caused a collision

with the vehicle in front of Ma rcom. Th e trial court was ju stified in considering these

enhancement factors. As to mitigating factors, the court found no specific statutory

ones to apply, bu t it did consid er Defe ndant’s c omm endab le emp loymen t history.

Based on the forego ing, we find tha t the trial c ourt’s s enten ce of 1 80 da ys in

confinem ent is am ply supp orted by th e record .



       The jury imposed a fine against Defendant of $5,000, near the mid-point of

allowa ble fines und er the statu te.       See Tenn . Code Ann. § 55-10-403(a)(1).

Defendant argues that the jury was confused about the possible fines because the

jury returned a verdict of guilty on two coun ts of DU I during the first p hase of the tria l.

However, the record does not support Defendant’s assertion.




                                              -9-
       The trial court s uspe nded Defe ndan t’s driver’s license for ten (10) years which

is the maximum duration under the statute. See Tenn . Code Ann. § 55-10-403 (a)(1).

In doing so, the trial c ourt no ted D efend ant’s p rior DU I offens e, as w ell as his entire

criminal record, and the seriousness of DUI offenses in the county. We believe the

trial court was justified in imposing the maximum suspension.



       In summary, we find the length of Defendant’s se ntenc e, the a mou nt of his

fine, and the length of his driver’s license suspension to all be appropriate.



                                             IV.



       Lastly, Defendant argues that the trial court erred in ordering the confiscation

of his pickup truck under the applicable 1995 provisions of Tenn. Code Ann. § 55-10-

403(k).



       The statutory provision at issue in the present case reads in pertinent part as

follows:

              The jud ge hea ring a third o r subse quent vio lation of
              § 55-10 -401, o r the third or sub sequ ent viola tion of any
              combination of violations of § 55-10-401 and driving w hile
              intoxicated violations com mitted in othe r states , shall
              declare the vehicle used in the commission of such
              offense to be contraband and subject to forfeiture as
              provided in this subsection.

Tenn. Code Ann. § 55-10-403(k)(1) (Supp. 1995). The statute was ame nded in

1996, effective January 1 , 1997, and d esignated the Departm ent of Safety as the

applic able agency for forfeitures instead o f the trial court. Tenn. Code Ann. § 55-10-

403(k)(1) (Supp. 1996). However, since the offense at issue here occurred on

September 5, 1996, the trial court was authorized to order the forfeiture because the

                                             -10-
evidence showed that the vehicle was being driven by De fenda nt at the time o f his

third DUI offense.



      Under the applicable statute, Tenn. Code Ann. § 55-10-403(k)(3), any person

claiming a right to the vehicle forfeited under this section:

             may, not later than thirty (30) days from the date of receipt
             of the conditional order of forfeiture, file w ith the cou rt a
             claim in writing, requesting a hearing and stating such
             perso n’s or corporation’s interest in the vehicle. Fa ilure to
             file such a claim within the time specified shall, without
             exception, constitute a waiver of such claim.

Tenn. Code Ann. § 5 5-10-40 3(k)(3) (S upp. 19 95). The record shows that a copy of

the court’s conditional order of forfeiture was entered on August 29, 1997 and was

faxed to Defendant’s attorney on that date. There is nothing in the record which

shows that Defendant filed any claim in writing or requested a hearin g. Therefore,

it appears he waived any right to his vehicle.



       Defendant also argues that the desire of the Tennessee State L egisla ture in

the 1996 amendment was to use forfeiture as a reme dial rather than a pu nitive

measure. See Tenn. Code Ann. § 55-10-403(k)(3)(Supp. 1996). However, as noted

above, Defendant’s offense occurred prior to the effective date of the amendment

and is thereby governed by the 1995 statute. Under that statute, the trial court, upon

a finding that this is a third or sub sequ ent D UI offe nse, s hall declare th e vehic le

subject to forfeiture. Tenn. Code Ann. § 5 5-10-40 3(k)(1) (S upp. 19 95). We find that

the trial court properly ordered the forfeiture in this case as outlined by Tenn. Code

Ann. § 5 5-10-40 3(k)(1) (S upp. 19 95). Th is issue is w ithout me rit.



      Based on all the for egoing , we affirm th e judgm ent of the tria l court.



                                           -11-
                           ____________________________________
                           THOMAS T. W OODALL, Judge



CONCUR:



(SEE C ONC URR ING OP INION)
GARY R. WA DE, Presiding Judge


___________________________________
JAMES CURW OOD W ITT, JR., Judge




                                 -12-
