              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                     FILED
                             OCTOBER 1993 SESSION
                                                                     February 1, 1996

                                                                   Cecil W. Crowson
STATE OF TENNESSEE,                 )                             Appellate Court Clerk
                                    )
              Appellant,            )      No. 01C01-9307-PB-00219
                                    )
                                    )      Davidson County
v.                                  )
                                    )       Hon. James R. Everettt, Jr., Judge
                                    )
JEFFERSON PENNINGTON,               )       (Dismissal of DUI - State appeal)
                                    )
              Appellee.             )



                                 DISSENTING OPINION



              I dissent. I agree with the majority opinion that the twelve-hour detention

without allowing bond under the policy stipulated by the parties to exist constituted

punishment. In this respect, I believe that the policy would result in serious violations

of an arrestee's statutory and constitutional rights, from illegal detention through illegal

denial of bail into fundamental violation of due process. However, I do not believe that

the Double Jeopardy Clause of either the Fifth Amendment to the United States

Constitution or Article I, Section 10 of the Tennessee Constitution is implicated in this

case.



              The double jeopardy clauses of the United States and Tennessee

constitutions protect against both multiple prosecutions for and multiple punishments

for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct.

2072, 2076 (1969); United States v. Johnson, 584 F.2d 148, 153 (6th Cir. 1978), cert.

denied, 400 U.S. 918 (1979); State v. Lowery, 667 S.W.2d 52 (Tenn. 1984). In this

respect, the defendant seeks to defend the trial court's conclusion that he was

punished by the detention without a prior adjudication of guilt and that, therefore, the
state was violating his right against multiple punishments by pursuing the DUI

prosecution. He relies upon United States v. Halper, 490 U.S. 435, 448-49, 109 S. Ct.

1892, 1902 (1989) in which the Supreme Court held "that under the Double Jeopardy

Clause a defendant who already has been punished in a criminal prosecution may not

be subjected to an additional civil sanction to the extent that the second sanction may

not fairly be characterized as remedial, but only as a deterrent or retribution."



              However, for double jeopardy purposes the defendant's position, and that

of the majority opinion by implication, depends upon certain assumptions that I am

unwilling to make on the record before us. The defendant assumes that the twelve-

hour detention was punishment for the same conduct that, if proven, will result in his

punishment in the DUI prosecution. I view the detention as stemming from the

defendant refusing to take the breath test, not from him being found to be driving under

the influence. Therefore, I cannot say that the detention constitutes punishment for the

"same offense," i.e., DUI. See Blockburger v. United States, 284 U.S. 299, 304 52 S.

Ct. 180, 182 (1932); State v. Black, 524 S.W.2d 913, 919 (Tenn. 1975).



              Also, I note that under T.C.A. § 55-10-406(a)(3), refusing to submit to a

blood alcohol test after being arrested results in suspension of a driver's license for six

months. The determination of whether this statute has been violated is to be made by

the trial judge during the prosecution of the offense for which the driver was arrested.

T.C.A. § 55-10-406(a)(3). It is significant that the sanction available for refusing to take

a blood alcohol test is not contingent upon a defendant being convicted of the offense

for which the person is charged. This reflects that the legislature intended that the two

issues, based upon separate conduct, be treated separately, albeit in the same

proceeding.




                                             2
              Obviously, the sanction of detention is not authorized for refusing a test.

However, this does not bring into play the Double Jeopardy Clause. In fact, it is also

significant that the defendant will be entitled, if convicted, to credit upon any sentence

imposed for the time he spent in confinement relative to this case. See T.C.A. § 40-

23-101(b). In this respect, I cannot say that either multiple prosecutions or multiple

punishments will be incurred in this case, regardless of whether the conduct in issue is

viewed to involve the "same offense."



                                          _______________________________
                                          Joseph M. Tipton, Judge




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