         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE

                            APRIL 1997 SESSION
                                                     FILED
                                                        July 8, 1997

STATE OF TENNESSEE,                 )               Cecil Crowson, Jr.
                                         C.C.A. No. 03C01-9610-CR-00370
                                                     Appellate C ourt Clerk
                                    )
            Appellee,               )    HAMBLEN COUNTY
                                    )
VS.                                 )    HON. BEN K. WEXLER, JUDGE
                                    )
CHRISTIAN KING FISHER,              )    (DUI, Speeding)
                                    )
            Appellant.              )



FOR THE APPELLANT:                       FOR THE APPELLEE:

JIM W. STAMBAUGH                         JOHN KNOX WALKUP
P. O. Box 1003                           Attorney General and Reporter
Morristown, TN 37816-1003
                                         MARVIN E. CLEMENTS, JR.
                                         Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         C. BERKELEY BELL
                                         District Attorney General

                                         VICTOR VAUGHN
                                         Assistant District Attorney General
                                         510 Allison Street
                                         Morristown, TN 37814




OPINION FILED:


AFFIRMED



JOE G. RILEY,
JUDGE




                                OPINION
         Defendant, Christian King Fisher, was convicted by a Hamblen County jury of

driving under the influence of an intoxicant and speeding. The sole issue in this appeal

is whether the trial court denied the defendant his right to an impartial jury by failing to

excuse certain jurors for cause. We AFFIRM the judgment of the trial court.



                                            I.

         During voir dire defense counsel asked the following hypothetical to the jury

panel:

               “In other words, let’s say the Tennessee law says
               there’s supposed to be one zero [.10%], and somebody
               has a point zero three [.03%], ... would you feel like that
               person is guilty of DUI?”

Two (2) jurors indicated in the affirmative and were challenged for cause. The trial

judge then explained to the jury in detail that to be convicted it must be shown that a

defendant was driving under the influence, not the fact that he had a certain amount

of alcohol. All jurors indicated they could follow the law. The trial judge did not grant

the challenge for cause.

         Defense counsel subsequently asked the panel the following:

               “Still, assume for the purpose of this question, and this
               is an assumption, that someone had a point zero three
               [.03%] reading, and the state of Tennessee law says it
               takes a point one zero [.10%] to be under the influence,
               how many of you would convict a defendant that had
               a point zero three [.03%] reading?”

Five (5) jurors indicated in the affirmative. The trial court then noted the jurors might

not understand what .10% and .03% means. After a further explanation from the

court, the jurors indicated they could follow the law.

         Defense counsel challenged for cause the jurors who had indicated in response

to counsel’s questions that they would convict based upon a .03% reading. After these

challenges for cause were denied, defense counsel exercised all three (3) peremptory

challenges allowed in a misdemeanor case. Defendant contends that because of the

trial court’s refusal to excuse two (2) named jurors for cause, he was forced to exercise

his peremptory challenges as to those jurors. He, therefore, argues he was forced to



                                             2
accept two (2) other jurors that he would have otherwise peremptorily challenged.



                                               II.



       We first note that the questions were confusing to a jury who, at that time in voir

dire, had been given no explanation about the inferences that could be drawn from

blood alcohol readings.1 Furthermore, defense counsel misstated the law by telling the

jury “it takes a point one zero [.10%] to be under the influence...” A defendant can be

guilty of driving under the influence even without a blood alcohol test indicating a .10%

or greater. Tenn. Code Ann. § 55-10-401; State v. Gilbert, 751 S.W.2d 454 (Tenn.

Crim. App. 1988). The trial court has wide discretion in ruling on the qualifications of

a juror. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). The trial court

did not abuse its discretion in refusing to excuse the jurors for cause.

       Irrespective of whether the trial judge should have excluded the challenged

jurors for cause, any possible error is harmless unless the jury who actually heard the

case was not fair and impartial. State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993);

State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989). The failure to correctly

excuse a juror for cause is grounds for reversal only if the defendant exhausts all of

his peremptory challenges and an incompetent juror is forced upon him. Ross v.

Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988); State v.

Jones, 789 S.W.2d 545, 549 (Tenn. 1990). Although defendant exercised all of his

peremptory challenges, he has not shown that an incompetent juror was forced upon

him.




       The judgment of the trial court is AFFIRMED.




       1
           In fact, the defendant did not have a .03% reading but rather had a .13% reading.

                                                3
                             JOE G. RILEY, JUDGE




CONCUR:


JERRY L. SMITH, JUDGE




CHRIS CRAFT, SPECIAL JUDGE




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