                        IN THE SUPREME COURT OF TENNESSEE
                                    AT JACKSON
                             April 10, 2003 Session Heard at Dyersburg1

                          STATE OF TENNESSEE v. ROBERT TAIT

                      Appeal by Permission from the Criminal Court of Appeals
                                 Criminal Court for Shelby County
                              No. 00-12820 Joseph B. Dailey, Judge



                        No. W2001-02157-SC-R11-CD - Filed September 8, 2003



We granted this interlocutory appeal pursuant to Rule 11 of the Tennessee Rules of Appellate
Procedure to determine whether, in a prosecution commenced by an arrest warrant for driving under
the influence of an intoxicant, the resulting indictment may charge the defendant for offenses that
can be inferred from the arrest warrant. The arrest warrant charged the appellant, Robert Tait, with
driving under the influence of an intoxicant, and the grand jury indicted him for that offense (count
one)2 and for driving with a blood-alcohol concentration of .10 percent or more (count two).3 The
trial court dismissed the second count, finding that it described a new and additional charge and was,
therefore, barred by the applicable one-year statute of limitations because its prosecution had been
commenced more than one year after the conduct occurred. The Court of Criminal Appeals reversed,
concluding that the second count merely constituted an alternative theory for conviction and did not
charge an offense distinct from that for which the appellant was initially charged. After reviewing
the record and controlling legal authority, we hold that the language of the warrant sufficiently tolled
the limitations period for count two. Therefore, we affirm the holding of the Court of Criminal
Appeals and remand this case to the trial court for further proceedings.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
            Affirmed; Case Remanded to the Criminal Court for Shelby County



         1
          Oral argument was heard in this case on April 10, 2003, in Dyersburg, Dyer County, Tennessee, as part of this
Court’s S.C.A.L.E .S. (Supreme Court Advancing Legal Education for Students) project.

         2
           Tennessee Code Annotated section 55-10-401 (1998) provides that “(a) It is unlawful for any person to drive
or to be in physical control of an y autom obile . . . while: (1) U nder the influence of any intoxicant, marijuana, na rcotic
drug, or drug producing stimulating effects on the central nervous system . . . .”

         3
           Tennessee Code Annotated section 55-10-401 (1998) provides that “(a) It is unlawful for any person to drive
or to be in physical control of any automobile . . . while: . . . (2) The alcohol concentration in such person’s blood or
breath is ten-hundred ths of one percent (.1 0% ) or more.”
ADOLPHO A. BIRCH, JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA, III,
C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

N. Craig Brigtsen, III, and Terry D. Smart, Memphis, Tennessee, for the appellant, Robert Tait.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; and Stephen P. Jones, Assistant District Attorney General, for
the appellee, the State of Tennessee.

                                                    OPINION

                                        I. Facts and Procedural History

        The underlying facts of this case are undisputed. On July 11, 1999, the appellant, Robert
Tait, was arrested for driving under the influence of an intoxicant. The warrant stated: “To any
lawful officer of the State: information on oath having been made that the offense of D.U.I. has been
committed, and accusing Robert Tait thereof, you are hereby commanded in the name of the State,
forthwith, to arrest the above named person . . . .” On November 2, 2000, the grand jury returned
a two-count indictment against Tait; both counts alleged violations of section 55-10-401 (1998)4 of
the Tennessee Code Annotated (“D.U.I. statute”). Specifically, count one alleged the offense of
driving “while under the influence of an intoxicant . . . in violation of Tenn. Code Ann. § 55-10-
401.” Count two alleged the offense of driving “while the alcohol concentration in the said Robert
Tait’s breath was .10 percent or more, in violation of Tenn. Code Ann. § 55-10-401.”

        Tait moved to dismiss count two of the indictment. In his motion, he asserted that he had
never been arrested or charged with the offense of driving with a blood-alcohol concentration of .10
percent or more. He asserted that the offense charged in count two was a misdemeanor and, as such,
prosecution for this offense must begin within one year of the warrant or it is barred by the applicable
statute of limitations. Further, he asserted that because the grand jury indictment was the initial
charge of such offense, and occurred more than a year after the original arrest warrant, count two of
the indictment was barred by the statute of limitations. The trial court agreed, finding that the second
count of the indictment alleged the independent offense of “D.U.I. per se,” which was not
specifically mentioned in the arrest warrant. The court concluded that the prosecution of this offense
was not initiated until the issuance of the grand jury indictment on November 2, 2000, well over one
year after the commission of the offense. Accordingly, the trial court dismissed count two as barred
by the statute of limitations.

        Upon permissive interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure, the Court of Criminal Appeals held that the offense of D.U.I. can be established with
alternative theories. The intermediate court held that the first theory supported count one of the


         4
           Tennessee Code Annotated section 55-10-401 was amended after the d ate of this o ffense; the applicable
statutes for purp oses o f this opinion are found in the 19 98 replac ement volum e of the T ennessee C ode Anno tated.

                                                         -2-
grand jury indictment and that the second theory supported count two. It concluded, therefore, that
count two did not allege a separate or later-charged offense than alleged in the arrest warrant.
Accordingly, the court reversed the judgment of the trial court and remanded the cause on both
counts to the trial court.

        We granted review to determine whether, in this prosecution commenced by an arrest warrant
for driving under the influence of an intoxicant, the charge of driving with an alcohol concentration
of .10 percent or more is barred by the statute of limitations under the facts of this case.

                                       II. Standard of Review

        Because the material facts of this case are not in dispute, the outcome rests solely upon
statutory interpretation. Issues of statutory construction are questions of law that are reviewed de
novo with no presumption of correctness accompanying the trial court’s conclusions. Beare Co. v.
Tenn. Dep’t of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993); Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993).

                                            III. Analysis

        In order to determine whether count two of the indictment is barred by the statute of
limitations, we first look to the D.U.I. statute, which provides in pertinent part:

       (a) It is unlawful for any person 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, 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: (1) Under the influence of any
       intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the
       central nervous system; or (2) The alcohol concentration in such person’s blood or
       breath is ten-hundredths of one percent (.10%) or more.

Tenn. Code Ann. § 55-10-401. The penalties for a violation of the D.U.I. statute are codified and
provide for a maximum punishment of eleven months and twenty-nine days. Tenn. Code Ann. § 55-
10-403(a)(1) (1998). As an offense “punishable by fine or confinement for less than one (1) year,”
the offense of D.U.I. is classified as a “misdemeanor.” Tenn. Code Ann. § 39-11-110 (1997). Aside
from a few statutory exceptions, all prosecutions for misdemeanors must be commenced within
twelve months of the commission of the offense. Tenn. Code Ann. § 40-2-102 (Supp. 2002).
Therefore, the limitations period for commencing the prosecution for count one or count two in this
case ended one year from July 11, 1999, the date of the appellant’s offense and arrest. Consequently,
to withstand a statute of limitations challenge, the prosecution for count two, driving with an alcohol
concentration of .10 percent or more, must have commenced before July 11, 2000.




                                                 -3-
        A criminal statute of limitations functions to place a defendant on timely notice of the
charges the defendant will have to defend. Further, the primary purpose of the statute of limitations
is to protect the defendant’s ability to preserve relevant evidence necessary to the defendant’s
defense. State v. Pearson, 858 S.W.2d 879, 886 (Tenn. 1993). The limitations period insures that
governmental action against an accused will be commenced promptly or such action will be
forfeited. See id. (citing United States v. Ewell, 383 U.S. 116, 122 (1966)); see also State v. Nielsen,
44 S.W.3d 496, 499 (Tenn. 2001). Thereby, the limitations statutes protect that defendant “whose
defense [may] have been lost over time.” State v. Ricci, 914 S.W.2d 475, 479 (Tenn. 1996).

        Commencement of the prosecution tolls the running of the limitations period because such
commencement initially notifies the defendant of the charge or charges to be defended. By statute,
the prosecution for an offense may be commenced in one of several ways, all deemed to provide the
defendant with sufficient notice of the crime:

       A prosecution is commenced, within the meaning of this chapter, by finding an
       indictment or presentment, the issuing of a warrant, binding over the offender, by the
       filing of an information as provided for in chapter 3 of this title, or by making an
       appearance in person or through counsel in general sessions or any municipal court
       for the purpose of continuing the matter or any other appearance in either court for
       any purpose involving the offense.

Tenn. Code Ann. § 40-2-104 (1997); see also Nielsen, 44 S.W.3d at 499. In this case, the issuance
of the arrest warrant charging D.U.I. on July 11, 1999, commenced a prosecution and tolled the
statute of limitations as to the charge of D.U.I. See State v. Utley, 956 S.W.2d 489, 493 (Tenn.
1997); State v. Miller, 30 Tenn. (11 Hum.) 505, 506 (1851).

        The appellant agrees that the arrest warrant tolled the statute of limitations as to the D.U.I.
charge. He, however, contends that the grand jury’s subsequent indictment for driving with a blood-
alcohol concentration of .10 percent or more is barred by the statute of limitations because that
charge was not included in the arrest warrant. He further contends that charges commenced by an
arrest warrant must be limited to the precise substance of the charge stated in the warrant. The law
is contrary to the appellant’s contention.

       Section 40-6-208 of the Tennessee Code Annotated governs the required contents of an arrest
warrant, and it states:

        (a) The warrant should specify the name of the defendant, but if it is unknown to the
        magistrate, the defendant may be designated therein by any name. (b) It should also
        state the offense either by name, or so that it can be clearly inferred. (c) It should also
        show, in some part, the county in which issued, the name and initials of office of the
        magistrate.




                                                   -4-
The statute mandates that the warrant state the offense either by name, or so that it can be clearly
inferred, and like indictments, the contents of a warrant for arrest must inform the accused of the
nature of the charge. However, warrants differ from indictments in that the statute does not require
that a warrant “state the facts constituting the offense . . . .” See Tenn. Code Ann. § 40-13-202
(1997). Further, the assertion of facts required for a sufficient indictment do not have any effect
upon the timeliness of a prosecution commenced by an arrest warrant. In State v. Miller, the Court
explained the distinction for limitations purposes:

       The warrant, apprehension, and requiring bail for the appearance of the party at the
       circuit court, certainly constituted a “prosecution” of the offender; and of this
       prosecution, the warrant is the commencement. The indictment is the method by
       which the issue is made up, on which the party is to be tried. It is a prosecution,
       therefore, “by indictment,” although the prosecution is commenced by warrant. The
       meaning is, that prosecutions for misdemeanors, the trial of which must be by
       presentment or indictment, shall be commenced in twelve months. The limitation,
       refers to the commencement of the prosecution, and not to the finding of the
       indictment.

30 Tenn. (11 Hum.) at 506.

         Clearly, an indictment filed more than one year after the arrest that changed the nature of the
offense or added a new offense to the one articulated in the arrest warrant would be barred by the
statute of limitations because the defendant would have been denied timely notice of what evidence
his defense would require. Cf. Murff v. State, 425 S.W.2d 286, 288 (Tenn. 1967) (finding that “there
is no reason for not freely allowing amendments and substitutions of trial warrants where a defendant
elects to go to trial upon such warrant” as long as a new offense is not added and the nature of the
offense is not changed). However, an indictment that alleges various theories of guilt for offenses
that can be inferred from an arrest warrant in no way compromises the defendant’s notice of the
charge. In the case under submission, both counts one and two charged in the indictment can be
inferred from the charge of D.U.I. found in the arrest warrant; therefore, the appellant’s challenge
to the timeliness of count two must fail.

                                           IV. Conclusion

         For the foregoing reasons, we hold that subsequent indictments on charges timely
commenced by an arrest warrant are limited to those charges that can be based on the offense named
in the warrant or offenses that can be clearly inferred from the warrant. A charge of driving with an
alcohol concentration of .10 percent or more can be clearly inferred from an arrest warrant alleging
“that the offense of D.U.I. has been committed.” Therefore, the prosecution for driving with a blood-
alcohol concentration of .10 percent or more was commenced by the arrest warrant. It follows that
the trial court erred in dismissing count two of the indictment as barred by the statute of limitations.
Accordingly, we affirm the judgment of the Court of Criminal Appeals and remand this cause to the



                                                  -5-
trial court for further proceedings. Costs of the appeal are taxed to the appellant, Robert Tait, for
which execution shall issue if necessary.


                                                      ___________________________________
                                                      ADOLPHO A. BIRCH, JR., JUSTICE




                                                -6-
