         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 6, 2001 Session

                   STATE OF TENNESSEE v. DANNY MUNSON

              Interlocutory Appeal from the Criminal Court for Shelby County
                          No. 00-01541    Joseph B. Dailey, Judge



                  No. W2001-00151-CCA-R9-CD - Filed December 31, 2001



JOE G. RILEY, J., concurring.


       I concur with the result reached by the majority and consider this case distinguishable from
Scisney. In Scisney, Judge Tipton and I, in separate opinions, concluded an intoximeter reading of
.04%, by itself, was insufficient to establish “beyond a reasonable doubt” that the blood alcohol
concentration was, in fact, .04%. See State v. Mark T. Scisney, C.C.A. No. 01C01-9605-CC-00209,
1997 WL 634515, at *9-11 (Tenn. Crim. App. Oct. 16, 1997, at Nashville). This was because there
was a 25% chance that the actual level was below .04% due to the margin of error. Id.

       In the case at bar, the blood alcohol level is not an element of the offense requiring proof
beyond a reasonable doubt as was the case in Scisney. Here, it is only necessary to establish this
sentencing enhancement by a preponderance of the evidence.

       Although I do not necessarily agree that the legislature was aware of the margin of error in
breathalyzer results, I do believe a trial judge could conclude by a preponderance of the evidence that
a .20% test result from a properly administered test satisfies this enhancement provision.



                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE
