        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                             JUNE SESSION, 1997         September 30, 1997

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,               )   C.C.A. NO. 01C01-9607-CC-00323
                                  )
     Appellee,                    )
                                  )   DICKSON COUNTY
                                  )
V.                                )
                                  )   HON. LEONARD MARTIN, JUDGE
MARTHA L. PENNINGTON,             )
                                  )
     Appellant.                   )   (DUI CERTIFIED QUESTION OF LAW)



FOR THE APPELLANT:                    FOR THE APPELLEE:

MICHAEL J. FLANAGAN                   JOHN KNOX WALKUP
Attorney at Law                       Attorney General & Reporter
95 W hite Bridge Road #208
Nashville, TN 37205                   DARYL J. BRAND
                                      Assistant Attorney General
                                      425 Fifth Avenue North
                                      2nd Floor, Cordell Hull Building
                                      Nashville, TN 37243

                                      DAN M. ALSOBROOKS
                                      District Attorney General

                                      ROBERT S. WILSON
                                      Assistant District Attorney General
                                      P.O. Box 580
                                      Charlotte, TN 37036



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                OPINION

             The Defendant, Martha L. Pennington, entered a guilty plea to the

offense of driving under the influence of an intoxicant (DUI) in the Circuit Court

of Dickson County. The Defendant received a sentence of eleven (11) months

and twenty-nine (29) days, with all but forty-eight (48) hours of the sentence

suspended. She was fined $350.00 and ordered to pay court costs. With the

consent of the State and the trial court, Defendant explicitly reserved a certified

question of law dispositive of the case pursuant to Tennessee Rules of Criminal

Procedure 37(b)(2)(i). The certified question of law in this appeal is: “Whether

or not the detention of the defendant, in this case, under the policy of the Dickson

County Sheriff’s Department, constitutes punishment so as to preclude further

prosecution on double jeopardy grounds or violates the defendant’s due process

rights.” After a thorough review of the record, we affirm the judgment of the trial

court.



             Counsel for Defendant also represented another client in an

unrelated case, with the identical issue presented as a certified question of law

in this court. See State v. James E. Irwin, No. 01C01-9603-CC-00096, Dickson

County, (Tenn. Crim. App., Nashville, March 27, 1997) (Rule 11 application filed

May 19, 1997). Both cases arose as a result of a policy decision of the Dickson

County Sheriff’s Department regarding post-arrest detention in all DUI cases for

a minimum period of time before allowing release on bail. Testimony of Dickson

County Sheriff Tom W all in the Irwin case was made an exhibit by stipulation of

the parties in the case sub judice. Also, a transcript of the entire suppression



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hearing in the Irwin case, including the findings of fact and conclusions of law in

the trial court in that case was made an exhibit in Defendant Pennington’s case.

Furthermore, the parties stipulated in the present case that the same policy of

post-arrest detention was in effect in Defendant Pennington’s case as was in

effect at the time of the defendant’s arrest in Irwin. The same trial court judge

heard both cases. Only the Defendant testified during the suppression hearing.

The affidavit of complaint which led to the issuance of the arrest warrant for

Defendant and the written results of the Intoximeter 3000 test given to Defendant

following her arrest were admitted into evidence by stipulation.



                                     FACTS



             In the early evening hours of September 30, 1995, Officer Andre Orr

of the Dickson Police Department saw a pickup truck driven by Defendant swerve

on Highway 47 in Dickson. Orr turned his patrol car around and began following

the truck, observing it weaving from the left to the right side of the road. He

stopped the vehicle and observed “a strong odor of alcohol” upon the Defendant.

She admitted to drinking one beer. W hile the affidavit of complaint states that

Defendant was given three (3) field sobriety tests, it does not provide the results

of those tests. However, the next sentence in the affidavit states that the officer

placed the Defendant under arrest for DUI. At 6:40 p.m. Defendant registered a

0.13 on the Intoximeter 3000 test.



             Following her arrest, Defendant was first taken by Officer Orr to the

Dickson Police Department. There Defendant made a phone call to Joe Fizer,

a bail bondsman. She made arrangements for Mr. Fizer to make her bond and

                                        -3-
pick her up at the Dickson County Jail in Charlotte.         Defendant was then

transported from the Dickson Police Department to the jail, arriving at 8:00 p.m.

Mr. Fizer was waiting at the jail when she arrived. However, Defendant was not

permitted to be released until 2:00 a.m. the following morning when Mr. Fizer

took Defendant to meet her boyfriend, who in turn took Defendant to her home.



             At the time of Defendant’s arrest, the Dickson County Sheriff’s

Department had a policy of holding a defendant who had been arrested for DUI

a minimum of six (6) hours before allowing the defendant to be released on bail.

Depending upon the defendant’s level of intoxication, he or she might be held

longer than the minimum six (6) hour period. In the words of Sheriff W all, “[t]hose

were minimum times. In other words, after six hours, on a DUI, if the jailor felt

like they were not misbehaving, they could get them booked in and they could

make bond and leave.” Sheriff W all further elaborated that public safety was the

“number one” issue which led to the policy. Also, the difficulty of having an

intoxicated defendant fingerprinted and “booked” was a concern leading to the

policy. Sheriff W all later testified during cross-examination by the State that the

primary reason for the policy was to keep the defendants from being released in

an intoxicated condition where defendants in DUI cases might harm themselves

or third persons.



             Defendant testified that in her opinion she was not under the

influence of alcohol while she was being incarcerated on the night of her arrest.

There is no proof that Defendant was unruly, abusive, or uncooperative from the

time of her arrest until she was released on bail. The only proof of her condition

regarding intoxication was the 0.13 intoximeter reading at 6:40 p.m.

                                        -4-
                             DOUBLE JEOPARDY



             On appeal, Defendant argues that both the Tennessee and United

States Constitutions protect a person from multiple punishments for the same

offense.   Specifically, in W hitwell v. State, our supreme court stated, “the

Tennessee and United States constitutional provisions against double jeopardy

protect an accused from the peril of both a second punishment and a second trial

for the same offense.” 520 S.W .2d 338, 341 (Tenn. 1975) (emphasis supplied).




             However, the recent case of State v. Jefferson C. Pennington, ____

S.W.2d ____, No. 01-S-01-9607-PB-00133, Davidson County (Tenn., at

Nashville, Sept. 8, 1997), addressed a factual situation similar to the case sub

judice. In Jefferson Pennington, the defendant was arrested for DUI in Davidson

County. Pursuant to a policy of the Davidson County general sessions judges

and judicial commissioners, Defendant was held in custody for approximately

eleven (11) hours prior to being allowed to make bail because he had refused to

submit to a breath-alcohol test.    Upon motion of defendant, the trial court

dismissed the indictment. Our court affirmed the judgment of the trial court in an

opinion where one judge concurred in results only and another judge dissented.

The lead opinion in our court concluded that further prosecution would violate

double jeopardy principles. The supreme court reversed, and in addressing the

double jeopardy issue stated as follows:


             In context, double jeopardy violations arise only when an
      individual is twice placed in jeopardy for the same offense.
      Customarily, in jury proceedings, jeopardy attaches when the jury is


                                       -5-
      sworn, and in nonjury proceedings, jeopardy attaches when the first
      witness testifies [citations omitted] . . . .

             It is well established that jeopardy does not attach in
      preliminary pretrial proceedings. See United States ex rel. Rutz v.
      Levy, 268 U.S. 390, 45 S. Ct. 516, 69 L. Ed. 1010 (1925); Collins v.
      Loisel, 262 U.S. 426, 43 S. Ct. 618, 67 L. Ed. 1062 (1923). Rather,
      to be put in jeopardy, the defendant must be “subject to ‘criminal
      prosecution’ and put to trial.” United States v. Grisanti, 4 F.3d. 173,
      175 (2nd Cir. 1993). The proceeding must be “essentially criminal”
      and constitute an action “intended to authorize criminal punishment
      to vindicate public justice.” Id. [citations omitted].


Jefferson Pennington, No. 01-S-01-9607-PB-00133, slip op. At 5.



             A stipulated fact in Jefferson Pennington was that one of the

purposes of the detention policy was to keep those who are suspected of being

intoxicated drivers off the road for a period of time following arrest. The supreme

court concluded this was a remedial purpose, not punitive, and thus the

defendant’s initial appearance before the judicial commissioner was not an

“essentially criminal proceeding” brought to “vindicate public justice.” Id. at 6.



             Based upon Sheriff W all’s testimony regarding the purposes of the

detention, and in light of the decision in State v. Jefferson Pennington, we

conclude that the purpose of the detention under the facts of this case was

remedial, not punitive, and did not constitute an essentially criminal proceeding.

As a result, the detention did not violate any double jeopardy protections afforded

Defendant.



                                 DUE PROCESS




                                        -6-
             W hile concluding in State v. Jefferson Pennington that there was no

violation of double jeopardy protections, our supreme court still recognized that

a policy of detaining suspected drunk drivers for refusing to subm it to a test to

determine blood-alcohol content may, if punitive, implicate certain other

constitutional protections. Specifically, the court stated, “To punish an individual

without a prior adjudication of guilt is a violation of due process.” Jefferson

Pennington, No. 01-S-01-9607-PB-00133, slip op. At 7 (citing Kennedy v.

Mendoza Martinez, 372 U.S. 144, 186, 89 S. Ct. 554, 576, 9 L. Ed.2d 644

(1963)).



             The court also held that pretrial detention that is remedial rather than

punitive is permissible as long as the arrestee is afforded sufficient procedural

due process.



             In State v. Coolidge, 915 S.W .2d 820 (Tenn. Crim. App. 1995), our

court quoted from Doe v. Norris, 751 S.W.2d 834, 839 (Tenn. 1988), a case

involving a due process issue, as follows:


      In determining whether the confinement involved . . . is punishment
      . . . [c]ourts must decide whether the confinement is imposed for the
      purpose of punishment or whether it is an incident of a legitimate
      governmental purpose. Where . . . no showing of an express intent
      to punish is made . . . “that determination . . . turn[s] on whether an
      alternative purpose to which [the restriction] may rationally be
      connected is assignable for it, and whether it appears excessive in
      relation to the alternative purpose assigned.”


Coolidge, 915 S.W .2d at 823.




                                        -7-
             A two-part test was set forth in Coolidge to determine whether pre-

trial detention qualified as punishment: (1) whether the detention served an

alternative purpose, and (2) whether detention is excessive in relation to the

purpose. 915 S.W .2d at 824. Detention for the purpose of detoxification may

qualify as a legitimate government goal. Id. at 823. The period of six (6) hours

confinement in jail following a blood alcohol level of 0.13 (even though the result

was obtained approximately seven (7) hours prior to her release) is not shown by

this record to be excessive in relation to the stated purpose. Under all of the

circumstances of this case, we agree with the trial court that Defendant’s case

does not justify the granting of her motion to dismiss.



             W e affirm the judgment of the trial court.




                                        -8-
                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
W ILLIAM M. BARKER, Judge




                              -9-
