         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                           JULY 1997 SESSION


STATE OF TENNESSEE,               )     C.C.A. No. 02C01-9701-CC-00010
                                  )
           Appellant,             )     LAUDERDALE COUNTY
                                  )
VS.                               )     HON. JOE H. WALKER, III


LUCKY HUMPHREYS,
                                  )
                                  )
                                  )
                                        JUDGE
                                                             FILED
                                  )     (DUI)               September 17, 1997
           Appellee.              )
                                                            Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
FOR THE APPELLEE:                       FOR THE APPELLANT:

WILLIAM K. RANDOLPH                     JOHN KNOX WALKUP
P. O. Box 611                           Attorney General and Reporter
Dyersburg, TN 38025-0611
                                        DEBORAH A. TULLIS
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        ELIZABETH T. RICE
                                        District Attorney General

                                        MARK E. DAVIDSON
                                        Assistant District Attorney General
                                        302 Market Street
                                        Somerville, TN 38068




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                       OPINION


          The state appeals the dismissal of an indictment for driving under the influence

of an intoxicant. The trial court found that the post-arrest detention of the defendant

constituted punishment and dismissed the indictment based upon a finding of double

jeopardy. We reverse and reinstate the indictment.



                                          FACTS



          Defendant, Lucky Humphreys, was arrested for driving under the influence of

an intoxicant. Upon arrival at the jail, defendant refused a breathalyzer test. Under

the sheriff’s policy, DUI arrestees were detained at the jail for approximately eight

hours before being allowed to make bail. If an arrestee was highly intoxicated, he or

she was sometimes allowed to be released to a family member. The rationale for the

detention policy was the safety of the arrestee as well as the safety of the general

public.

          The defendant was held for approximately eight hours before being allowed

to make bail. During this time he was not allowed to make a phone call.

          The trial court found no showing by the state of the need to keep this

defendant for an eight-hour period for public safety purposes. Although the trial court

recognized the remedial, public safety reasons for detention, the trial court found that

defendant’s detention resulted from the failure to allow him to call a family member

to pick him up and make bond. The trial court ruled that the detention, therefore,

constituted punishment. In summary, the trial court found that the defendant’s

detention was “punishment” for the “same offense” for which he was indicted; to-wit:

driving under the influence of an intoxicant. The trial court dismissed the DUI

indictment finding it to constitute double jeopardy.




                                             2
                                    ANALYSIS



      The detention policy was intended, at least in part, to protect not only the

arrestee but also the public from someone who had been recently arrested for driving

under the influence of an intoxicant. This is a remedial purpose, not a punitive one,

and does not trigger double jeopardy protection. State v. Pennington,         S.W.2d

  (Tenn. 1997). If the confinement is remedial and imposed pursuant to a legitimate

governmental purpose, then the confinement is not considered punishment for

double jeopardy purposes. See Doe v. Norris, 751 S.W.2d 834 (Tenn. 1988); State

v. Conley, 639 S.W.2d 435 (Tenn. 1982); State v. Coolidge, 915 S.W.2d 820 (Tenn.

Crim. App. 1995). We further find that the detention was not excessive in the

accomplishment of the remedial purpose. See Coolidge, 915 S.W.2d at 824. The

fact that the defendant was not allowed to post bond nor make a phone call to secure

a relative to pick him up does not convert his detention into “punishment.”

      For the above reasons, we reinstate the indictment for driving under the

influence of an intoxicant and remand for further proceedings.




                                                JOE G. RILEY, JUDGE



CONCUR:


JOE B. JONES, PRESIDING JUDGE



DAVID H. WELLES, JUDGE




                                         3
