             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE              FILED
                                JUNE 1997 SESSION
                                                           September 18, 1997

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
STATE OF TENNESSEE,

                     APPELLEE,       )
                                     )     No. 01-C-01-9608-CR-00343
                                     )
                                     )     Putnam County
v.                                   )
                                     )     John A. Turnbull, Judge
                                     )
                                     )     (Driving While Under the Influence)
MARK SPENCER KING,                   )
                                     )
                   APPELLANT.        )



FOR THE APPELLANT:                         FOR THE APPELLEE:

Jacky O. Bellar                            John Knox Walkup
Attorney at Law                            Attorney General & Reporter
212 Main Street                            500 Charlotte Avenue
Carthage, TN 37030                         Nashville, TN 37243-0497

J. Branden Bellar                          Janis L. Turner
Attorney at Law                            Assistant Attorney General
212 Main Street                            450 James Robertson Parkway
Carthage, TN 37030                         Nashville, TN 37243-0493

                                           William A. Gibson
                                           District Attorney General
                                           145 South Jefferson Avenue
                                           Cookeville, TN 38501

                                           William S. Roberson
                                           Assistant District Attorney General
                                           145 South Jefferson Avenue
                                           Cookeville, TN 38501




OPINION FILED:____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Mark Spencer King (defendant), was convicted of driving while under

the influence (DUI) following a bench trial. The sole issue which this Court must resolve

is whether evidence of the chemical breath test should have been admitted into evidence.

The defendant argues this evidence should not have been introduced because the 1995

amendment to Tenn. Code Ann. § 55-10-408(b), which rendered the statute

unconstitutional, was in effect at the time he was arrested. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issue presented for

review, it is the opinion of this Court that the judgment of the trial court should be affirmed.

       The defendant moved the trial court to exclude as evidence the results of the

chemical breath test. The test revealed the defendant had a blood alcohol content of

.14%. The trial court agreed with the defendant that Tenn. Code Ann. § 55-10-408, as

amended in 1995, was unconstitutional. However, the court concluded it could apply the

standard contained in the statute before the amendment. Thus, the court dismissed the

defendant’s motion to suppress, and the test results were introduced into evidence over

the defendant’s strenuous objection.



                                               I.



       A review of the initial statutory provisions, the amendments to the statute, and the

effect of the changes are relevant to the inquiry.

       Prior to 1995, Tenn. Code Ann. § 55-10-408(b) stated:


              Evidence that there was, at the time alleged, ten-hundredths
              of one percent (.10%) or more by weight of alcohol in the
              defendant’s blood shall create a presumption that the
              defendant was under the influence of such intoxicant, and that
              defendant’s ability to drive was impaired thereby, sufficiently to
              constitute a violation of § 55-10-401.1


       1
        The United States Supreme Court and the appellate courts of this state have held
that the word “presumption” should not be used in jury instructions. The word “inference”
should be used instead. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d
39 (1979); State v. Coker, 746 S.W.2d 167, 170 (Tenn. 1987), cert. denied, 488 U.S. 871,
109 S.Ct. 180, 102 L.Ed.2d 149 (1988).

                                               1
         In 1995 the Tennessee General Assembly amended Tenn. Code Ann. § 55-10-408.

The statute, as amended, stated:


                Evidence that there was, at the time alleged, ten hundredths
                of one percent (.10%) or more by weight of alcohol in the
                defendant’s blood shall be conclusive proof that the defendant
                was under the influence of such intoxication, that the
                defendant’s ability to drive was impaired thereby and shall
                constitute a violation of § 55-10-401.


1995 Tenn. Pub. Acts, Ch. 517, § 1.

         This amended statute became effective on July 1, 1995. It was in effect when the

defendant was arrested on November 12, 1995. The Attorney General subsequently

rendered an opinion which stated the “conclusive proof” provision of the statute rendered

the statute unconstitutional. Tennessee Attorney General Opinion 95-117 (November 28,

1995).

         The Tennessee General Assembly amended the 1995 Act in 1996.                    This

amendment returned the statute to its status prior to the 1995 amendment. 1996 Tenn.

Pub. Acts, Ch. 915, §§ 2, 3. The 1996 Act became effective upon its passage. The Act

was passed by the Tennessee General Assembly on April 24, 1996. Governor Sundquist

signed the Act on May 8, 1996.



                                               II.



         The trial court was correct in finding the 1995 Act was unconstitutional. The court

was also correct in applying the act in existence prior to the 1995 Act. Therefore, the trial

court properly admitted the results of the chemical breath test, and treated the results as

an inference that the defendant’s ability to operate a motor vehicle was impaired pursuant

to Tenn. Code Ann. §§ 55-10-401, et. seq.

         In this jurisdiction, an unconstitutional statute or an amendment to a constitutional

statute is void ab initio -- from the date of its enactment. State v. Driver, 598 S.W.2d 774,

776 (Tenn. 1980); Leech v. American Booksellers Ass’n, Inc., 582 S.W.2d 738, 740 (Tenn.

1979); State v. Dixon, 530 S.W.2d 73, 74 (Tenn. 1975). Therefore, the unconstitutional



                                               2
provision does not have the effect of amending or superseding the existing constitutional

statute. Id. In other words, the prior constitutional statute is unaffected by the effort to

amend or supersede the statute, and it remains in full force and effect.




                                          _______________________________________
                                              JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
       WILLIAM M. BARKER, JUDGE



______________________________________
       THOMAS T. WOODALL, JUDGE




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