     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                        AT KNOXVILLE                FILED
                     MARCH 1997 SESSION
                                                       May 22, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk



STATE OF TENNESSEE,          )
                             ) C.C.A. No. 03C01-9608-CR-00307
     Appellee,               )
                             ) Hamilton County
V.                           )
                             ) Honorable Douglas A. Meyer, Judge
                             )
DONNA R. WHALEY,             ) (DUI - Second Offense)
                             )
     Appellant.              )




FOR THE APPELLANT:              FOR THE APPELLEE:

Jerry H. Summers                Charles W. Burson
Jimmy F. Rodgers, Jr.           Attorney General & Reporter
Attorneys at Law
500 Lindsay Street              Sandy R. Copous
Chattanooga, TN 37402-1490      Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                William H. Cox III
                                District Attorney General

                                John Bobo, Jr.
                                Assistant District Attorney General
                                City and County Building
                                600 Market Street
                                Chattanooga, TN 37402



OPINION FILED: ___________________


REVERSED AND REMANDED


PAUL G. SUMMERS,
Judge
                                           OPINION


        The appellant, Donna R. Whaley, was convicted of driving under the

influence (DUI), second offense. She was sentenced to 11 months 29 days with

probation consideration after 120 days service.1 The trial court ordered the

suspension of her driver's license for two years and the payment of a $510 fine.

She appeals raising the following issues for review:

        I. Whether the appellant's prior DUI conviction in Georgia can be
        used to enhance her current DUI charge because the statutes are
        not sufficiently similar;

        II. Whether Tenn. Code Ann. § 55-10-403(1) is unconstitutionally
        overbroad and void for vagueness;

        III. Whether the trial court erred in finding the appellant guilty of
        second offense DUI when the record of the conviction was facially
        invalid; and

        IV. Whether the trial court erred in overruling the appellant's
        motion to suppress the results of the intoximeter test.

Upon review, we reverse the judgment of the trial court.



                                               FACTS


        The appellant was stopped by a Chattanooga police officer for weaving

and driving at night without lights. She smelled of alcohol and had slurred

speech. She admitted to the officer that she had drunk five or six beers. The

appellant failed three field sobriety tests and registered a .23 BAC on the

intoximeter test. She was charged with DUI and taken into custody.



                                                    I



        In her first issue the appellant contends that her Georgia DUI conviction

cannot be used to enhance her sentence because Georgia's statute is dissimilar

to Tennessee's DUI statute. She avers that the Tennessee legislature only



        1
           The record reveals that the app ellant was sentenc ed to 11 months and 29 day incarce ration.
The trial judge did, however, state he would consider a petition for suspended sentence after 120
days.

                                                  -2-
intended the use of prior, out-of-state, DUI convictions from states that have DUI

statutes similar to Tennessee. Respectfully, this Court finds the appellant's

contentions misguided. Furthermore, we find that Georgia's DUI statute is

substantially similar to Tennessee's. 2



         Upon review of the plain language of Tenn. Code Ann. § 55-10-403(l), we

find nothing suggesting that the DUI statute of a foreign state must be similar to

that of Tennessee's in order to be used as a sentence enhancer. It appears that

the state legislature simply intended to enhance the punishment for repeat DUI

offenders. This Court has held that a defendant's prior DUI conviction from

another state could be used to enhance the sentence for a defendant's

subsequent DUI conviction in Tennessee. State v. Rea, 865 S.W.2d 923, 924

(Tenn. Crim. App. 1992). This holding remains true regardless of how DUI is

defined in a foreign state.



         A state adopts DUI laws for the protection of its citizens. If a person

commits the offense of DUI, that person has disregarded the laws of the state

and endangered the lives of its citizens. If a person is convicted of DUI in a

foreign state the conviction should be used to enhance a subsequent DUI in

Tennessee. A valid conviction from a foreign state should not be ignored or

negated simply because the foreign state's DUI statute contains dissimilar

elements from Tennessee's statute. Recidivist offenders endanger society. DUI

sentencing statutes are designed not only to punish but to deter and rehabilitate.

The severity of the deterrence and rehabilitation efforts increase with each

subsequent DUI. If this Court held that dissimilar foreign DUI statutes could not

be used to enhance Tennessee convictions, this policy of deterrence would be

undermined. We, therefore, find the appellant's first issue without merit.


         2
          Although this Court does not think similarity between a foreign state's DUI statute and
Tenne ssee's sta tute is requ ired to use the foreig n convic tion for en hancem ent, we fee l that Geor gia's
DUI statute is very similar to Tennessee's. Both Georgia and Tennessee prohibit a person from
driving or being in physical control of a vehicle while und er the influence of a lcohol or drugs.
Furthermore, in both states proof of .10 percent or more concentration of alcohol gives rise to a
conclusive presumption that the accused was impaired. Tenn. Code Ann. § 55-10-408; Ga. Code
Ann. § 40-6-392 (b)(4).

                                                      -3-
                                          II



       In her second issue the appellant contends that Tenn. Code Ann.

§ 55-10-403(l), the DUI enhancing statute, is unconstitutionally overbroad and

vague. She contends the absence of a similarity requirement between the

foreign state's DUI statute and Tennessee's DUI statute effectively allows

creative and discriminatory use of the statute. We disagree.



       A statute is void for vagueness if it is so vague, indefinite, and uncertain

that persons must speculate as to its meaning, and if it fails to give a person of

ordinary intelligence fair notice that his or her conduct is forbidden by the statute.

Underwood v. State, 529 S.W.2d 45 (Tenn. 1975). The pertinent statute states:

"[f]or the purposes of enhancing the punishment of a person convicted of

violating 55-10-401, the state shall use a conviction for the offense of driving

under the influence of an intoxicant that occurred in another state.” Tenn. Code

Ann. § 55-10-403(l) (1990). This Court finds that this statute is not overbroad or

vague. A person of ordinary intelligence should find this statute unmistakably

clear. This issue is without merit.



                                           III



       The appellant next contends that her prior Georgia DUI conviction was

invalid on its face and therefore, could not be used to establish her status as a

second offense DUI offender. The state argues that the appellant's contention

is moot because she explicitly stipulated to the fact that she had been convicted

in Georgia of DUI. It argues that the appellant should not now be allowed to

assert that the Georgia conviction was facially invalid. From a fairness viewpoint,

we agree with the state. However, in light of State v. McClintock, 732 S.W.2d

268 (Tenn. 1987), we must agree with the appellant. In the McClintock case, the

Tennessee Supreme Court announced that a facially invalid judgment could not


                                         -4-
be used to enhance punishment in a subsequent prosecution. Id. at 272. In this

case the evidence offered by the state to prove the appellant's prior Georgia

conviction was facially invalid.3 Had the previous conviction been from a

Tennessee court, the facially deficient document could not form a basis for

enhancement pursuant to Tenn. Code Ann. § 55-10-403(g)(1) (Tenn. 1993).

Tenn. Code Ann. § 55-10-403(g)(2) should be read in conjunction with -(g)(1).

This Court believes the General Assembly did not intend to give credence to

facially invalid foreign convictions when a court would not do so with a similar

Tennessee conviction. Although, as the state points out, the appellant stipulated

that she was convicted of DUI in Georgia, she did not stipulate that the

conviction was facially valid or that it met the constitutional requirements of

Boykin v. Alabama, 395 U.S. 238 (1969) or the rules of State v. Mackey, 553

S.W.2d 337 (Tenn. 1977).4 Accordingly, the appellant's Georgia conviction

cannot be used to enhance her current conviction to DUI, second offense. The

appellant is, however, convicted of DUI, first offense. The trial court shall

sentence the appellant accordingly. 5



                                                   IV



        In her final issue the appellant alleges the trial court erred in failing to

suppress the blood alcohol evidence obtained through an intoximeter test

because the implied consent form was vague and misleading. The appellant

contends that the form she signed failed to inform her of the consequences of

submitting to such a test. As a result, the appellant asks this Court to find the

implied consent form unconstitutional. We decline to do so.




        3
          The copy of the Georgia conviction lacked a judge's signature. Furthermore, it did not
indicate the appellan t was represente d by counsel or wa ived her right to cou nsel.
        4
        In Mackey, the Court expanded upon the Boykin directives. In addition to the Boykin litany,
defendants must be apprised of the future enhancement possibilities resulting from their pleas of
guilty.
        5
         We note that although the appellant's Georgia conviction cannot be used to classify her as a
second offender, it can be considered in determining the appropriate sentence within the range for first
offense DU I.

                                                  -5-
      The implied consent form unambiguously states:

      [y]ou are under arrest and there are reasonable grounds to believe
      you were driving or in physical control of a motor vehicle while
      under the influence of alcohol and/or drugs. As required under
      T.C.A. 55-10-406, I am hereby requesting you to submit to a
      chemical test to determine the alcohol and/or drug content of your
      blood.

The form clearly indicates that the purpose of the test is to determine the drug

and alcohol content of the accused's blood. If the results of this test were not

going to be used to prosecute the charged crime, there would be no purpose for

administering the test. This Court has held that admonitions prior to submitting

to a blood alcohol test are not required to sustain a valid consent. King v. State,

598 S.W.2d 834 (Tenn. Crim. App. 1980). The average person understands that

the results of a intoximeter test will be used against them. The form is neither

vague nor misleading. This issue is without merit.



                                  CONCLUSION



       After reviewing the record and the issues presented for review, we reverse

the appellant's conviction for DUI, second offense. However, she is convicted of

DUI, first offense. We remand the case for resentencing.




                                                 __________________________

                                        -6-
                                         PAUL G. SUMMERS, Judge


CONCUR:




______________________________
JOHN H. PEAY, Judge




______________________________
CORNELIA A. CLARK, Special Judge




                                   -7-
