         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, THIRD OFFE NSE)




                                CONCURRING OPINION

               As to the first issue, I agree with the author that the merger of the

offenses, imposing only one sentence, eliminated the double jeopardy problem.

Otherwise, State v. Denton, 938 S.W.2d 373 (Tenn. 1996), would have precluded

dual convictions.



               In Denton, our supreme court observed that "[t]he key issue in multiple

punishment cases is legislative intent." 938 S.W.2d at 379. The court suggested a

Blockburger analysis as the first step:

               [W]here the same act or transaction constitutes a
               violation of two distinct statutory provisions, the test to be
               applied to determine whether there are two offenses or
               only one is whether each provision requires proof of an
               additional fact which the other does not.

Denton, 938 S.W.2d at 379 (quoting Blockburger v. United States, 284 U.S. 299,

304 (1932)).
              Because each section of the DUI statute contains different elements,

the Blockburger test would not preclude dual convictions. Blockburger, however, "is

not conclusive." Denton, 938 S.W.2d at 379. Courts must also consider whether

the same evidence is used to prove both offenses. Id. at 380. In Duchac v. State,

505 S.W.2d 237 (Tenn. 1973), our supreme court stated the rule as follows:

              One test of identity of offenses is whether the same
              evidence is required to prove them. If the same evidence
              is not required, then the fact that both charges relate to,
              and grow out of, one transaction, does not make a single
              offense where two are defined by the statutes.

Denton, 938 S.W.2d at 380 (quoting Duchac, 505 S.W.2d at 239). Finally, courts

should examine other factors relative to legislative intent:

              (1) whether there were multiple victims involved;
              (2) whether several discrete acts were involved; and (3)
              whether the evil at which each offense is directed is the
              same or different.

Denton, 938 S.W.2d at 381 (footnote omitted).



              Here, there was a single episode of driving under the influence of

alcohol. The same evidence was used to prove both offenses. Moreover, each

conviction arose under the same code section of the DUI statute, Tenn. Code Ann.

§ 55-10-401. In my view, the legislative intent would permit only one conviction.



                                          _________________________________
                                          Gary R. Wade, Presiding Judge




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