        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                        APRIL SESSION, 1998         December 15, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
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. MITCHELL BRYANT              JOHN KNOX WALKUP
P. O. Box 161                   Attorney General and Reporter
Cleveland, TN 37364-0161
                                SANDY C. PATRICK
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                JERRY N. ESTES
                                District Attorney General

                                JOSEPH A. REHYANSKY
                                Assistant District Attorney
                                P. O. Box 1351
                                Cleveland, TN 37311



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                             OPINION


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

Overstreet of driving under the influence, second offense. After a sentencing

hearing on Fe bruar y 6, 199 7, App ellant was sentenced to eleven months and

twenty-nine days in jail, with the sentence to be suspended and Appellant put on

probation after 45 days in jail. Appellant challenges his conviction, raising the

following issue: is there an inherent conflict 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




        On November 13, 1996, Appellant was indicted for driving under the

influence, second offense.1 Count One of the indictment charged Appellant with

driving under th e influenc e of an into xicant or dr ug; or in the alternative, w ith

driving with a blood-alcohol content of .10% or more. Appellant pleaded not

guilty to this ch arge, an d trial was h eld on F ebruary 7, 1997 .



        Officer Chris Bates of the Cleveland, Tennessee Police Department

testified that aro und 6 :30 a.m . on Ju ly 6, 199 6, he a nd O fficer 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 parking lot and come to a sudden stop. Officer Bates testified that when


        1
         Appellan t was also indicted for driving on a revoke d license . Appellant e ntered a guilty plea to
that charge and he does not challenge his conviction or sentence for that offense.

                                                    -2-
Appellant got out of his car, he had to steady himself against the vehicle and he

had a look of con fusion abou t him. O fficer M itchell re cogn ized A ppella nt and said

that he knew that Appellant’s drivers’ license had be en revok ed. When the two

officers approached Appellant, the y sme lled a st rong o dor of a lcoho l on his

breath and person.           When the officers asked Appellant whether he had been

drinking, he said that he had four beers and a glass of champagne the night

before. The officers then verified that Appellant’s drivers’ license had been

revoked .



        Officer Bates then a dmin istered three fie ld sobriety tests to Appe llant.

After Appellant failed at least two of these tests,2 Officer Bates asked Appellant

to take a either a breath or blood test. Appellant agreed to take a blood test, and

the officers transported 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 testified that during a search of Appellant’s car, he found

two em pty beer c ans tha t felt cold and had de w on the m.



        Appellant testified that he had consumed the alc ohol the night before he

was arrested . Appellant claimed 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 sobriety tests. Appellant did not challenge the accuracy of the blood test

results.




        2
        Officer Bates did not testify about the results of the third test during either direct or cross-
examination.

                                                    -3-
                                                    ANALY SIS




         Appellant contends that his conviction for driving under the influence

shou ld be reversed because Tennessee Code Annotated sections 55-10-401 and

55-10-408 are im perm issibly contradictory and therefo re, can not co nstitutio nally

coexist. Se ction 55-1 0-401 s tates, in relev ant part,

         It is unlawful for any pe rson to d rive or to be in physica l control of any
         automobile or other motor driven vehicle on any of the public roads and
         highways of the state, or on any streets or alleys, or while on the premises
         of any shopping center, trailer park or any apartment house complex, or
         any other premises which is genera lly frequented by the public at large,
         while:

                   (1) Under the influence of any intoxic ant, marijuana, narcotic drug,
                   or drug pro ducing stimulatin g effects on the central nervous system;
                   or
                   (2) The alcoh ol conce ntration in s uch pe rson’s blo od or bre ath is
                   ten-hundredths of one percent (.10%) or more.

Tenn. Code Ann. § 55-10-401(a) (1998). Section 55-10-408 states, in relevant

part,

         For the purpose of proving a violation o f § 55-10-401(a)(1), evidence that
         there was, at the time alleged, ten-hundredths of one percent (.10%) or
         more by weig ht of alc ohol in the de fenda nt’s blo od shall create a
         presumption that the de fendan t’s ability to drive was sufficiently impaired
         thereby to cons titute a violation of § 55-10-4 01(a)(1).

Tenn. Code Ann. § 55-10-408(a) (1998). Essentially, Appellant claims that these

two statutes give rise to different legal conclusions and, thus, the trial court

shou ld have charged the jury only on section 55-10-408, thereby giving him the

opportunity to rebut the presumption of his intoxication.3




         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 reasonable doubt that 1) he had been driving with a blood-alcohol content of .10% or
more, or 2) he had been driving under the influence of an intoxicant or drug. The court also instructed the
jury that evidence of a blood-alcohol content of .10% or more created a presumption 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-
       An analysis of the recent history of these two statutes indicates that they

are not contradictory. Prior to 1995, section 55-10-401(a) stated,

       It is unlawful for any person or persons to drive or to be in physical control
       of any automobile or other motor driven vehicle on any of the public roads
       and highways of the state of Tenn essee, or on any streets or alleys, or
       while on the premises of any shopping center, trailer park or any apartment
       house complex, or any other premises which is generally frequented by the
       public at large, while under the influence of any intoxicant, marijuana,
       narco tic drug, or drug producing stimulating effects on the central nervous
       system.

Tenn. Code Ann. § 55-10-401(a) (1994). In addition, section 55-10-408(b) stated

that

       Evidence that there was, at the time alleged, ten-hundredths 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 influence of such
       intoxicant, and that the de fendan t’s ability to drive was imp aired thereby,
       sufficiently to constitute a violation of § 55-10-401. The provisions of this
       subsection shall only a pply if the de fendan t has no prior convictions for
       violating the provisions of § 55-10-401.

Tenn. Code Ann. § 5 5-10-40 8(b) (199 4). In 1995 , the Tennessee General

Assembly amended section 55-10-408(a) to provide that

       Evidence that the re was , at the tim e alleged, ten-hundredths of one
       percent (.10% ) or more by weight of alcohol in the defen dant’s blood shall
       be conclusive proof that the defendant was under the influence of such
       intoxicant, that the de fendan t’s ability to drive was impaired thereby and
       shall con stitute a violatio n of § 55- 10-401 .

Tenn. Code Ann. § 55-10-408(a) (1995). The Tennessee Attorney General

subs eque ntly issued an opinion which stated that this 1995 amendment was

unconstitutional because it created a conclusive presumption of intoxication and

impairment that relieved the State of its burden of proving an element of the

offense. Tenn. Op. Att’y Gen. 95-117 (Nov. 28 , 1995). The opinion suggested,

however, that the legislature could achieve the same result by m aking it illega l to

drive with a b lood-alco hol conte nt above a certain p ercenta ge. Id.




                                          -5-
       In response to the Attorney General’s opinion, the legislature drafted a

proposed amen dmen t, which would have essentially given section 55-10-401 its

current form and would have deleted section 55-10-408(a).                 The Attorney

General subsequently issued an opinion which stated that the proposed section

55-10-401 would be co nstitutional in that it would m ake it illegal to either drive

while under the influence of an intoxicant or with a blood-alcohol content of .10%

or greater. Tenn. Op. Att’y Gen. 96-008 (Jan. 24, 1996). The opinion suggested,

however, that it would be unwise to delete se ction 55-10-40 8(a) in its entirety.

Id. The opinion suggested that it would be better to have a subsection creating

a permissive presumption of intoxication when a driver had a blood-alcohol

content of .10% or greater because such a presumption would aid in defining

“under the influence” as set forth in section 5 5-10-40 1(a)(1). Id. The legislature

subs eque ntly amended sections 55-10-401 and 55-10-408 to their present forms.



       This statutory history indicates that in enacting sections 55-10-401 and 55-

10-408 in their c urren t forms , the leg islature did no t create two co ntradic tory

statutes. Rather, the legislature merely created alternative ways to charge a

defendant with impaired driving. A defendant could be charged under 55-10-

401(a)(2), in which case a test indicating 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 to specifically charge the elements of 55-10-401 (a)(2),

the permissive presump tion of sec tion 55-1 0-408(a ) would c ome in to play to

assist in establishing intoxication and im pairm ent. T his conclusion is supported

by the exp ress la ngua ge of 5 5-10- 408(a ), which indica tes tha t it is admissible for

“the purpose of proving a violation of § 55-10-401(a)(1)” and makes no mention

of subse ction (a)(2 ).

                                           -6-
         In short, we hold tha t sections 55-10 -401 and 5 5-10-408 a re not

unconstitutionally contradictory. 4                Further, because Appellant was charged

alternativ ely under both subsection 55-10-401(a)(1) and subsection 55-10-

401(a)(2), the trial court was correct when it instructed the jury on bo th

subsections. The S tate presented evidence that Ap pellan t had b een d riving his

vehicle with a blood-alcohol content of .12% and Appellant never challe nged this

evidence. Thus, the jury clearly had a basis for convicting Appellant under

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.



         Accordingly, the judgment of the trial court is AFFIRMED.



                                             ____________________________________
                                             JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JAMES CURWOOD WITT, JR.




         4
           Although Appellant does not directly challenge the constitutionality 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. State, 707 S.W .2d 89 (T ex. Crim . App. 198 6).

                                                       -7-
