             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE            FILED
                           OCTOBER 1997 SESSION
                                                          January 19, 1999

                                                        Cecil W. Crowson
STATE OF TENNESSEE                  )                  Appellate Court Clerk
                                    )           NO. 01C01-9612-CC-00536
      Appellee                      )
                                    )           RUTHERFORD COUNTY
v.                                  )
                                    )           Hon. James K. Clayton, Jr.
MICHAEL ELMORE ROBINSON             )
                                    )           (D.U.I., 3rd Offense)
      Appellant.                    )
                                    )



For the Appellant:                              For the Appellee:

Michael J. Flanagan                             John Knox Walkup
95 White Bridge Road, Ste. 208                  Attorney General & Reporter
Nashville, TN. 37205
                                                Daryl J. Brand
John G. Mitchell, Jr.                           Assistant Attorney General
P.O. Box 1336                                   425 Fifth Avenue North
Murfreesboro, TN. 37130                         2nd Floor Cordell Hull Building
                                                Nashville, TN. 37243-0493

                                                William C. Whitesell, Jr.
                                                District Attorney General

                                                John W. Price, III
                                                Assistant District Attorney
                                                303 Rutherford Co. Jud. Bldg.
                                                Murfreesboro, TN. 37130




OPINION FILED:_____________________

AFFIRMED
WILLIAM M. BARKER, SPECIAL JUDGE
                              OPINION

        The appellant, Michael Elmore Robinson, appeals as of right the conviction he

received in the Rutherford County Circuit Court. After a jury trial, the appellant was

convicted of driving a motor vehicle while under the influence of an intoxicant, his third

offense, and was fined eleven hundred ($1,100) dollars. The trial court sentenced him

to eleven (11) months and twenty nine (29) days, with one hundred and fifty (150)

days to be served in the Rutherford County work house, and the remainder to be

served on supervised probation. Appellant’s driver’s license was revoked for a three-

year period.

         On appeal, the appellant contends that the statutory presumption of intoxication

for multiple D.U.I. offenders, Tenn. Code Ann. § 55-10-408(b) (Supp. 1995), violated

his right to equal protection. We conclude that section 55-10-408(b) does not violate

equal protection; however, certain procedures must be implemented to insure that the

statute comports with the right to a fair trial. For the reasons provided herein, the

judgment of the trial court is affirmed.

                                              BACKGROUND

         During the early morning hours of July 16, 1995, the appellant was involved in a

minor one-car accident in Rutherford County. Deputies from the Rutherford County

Sheriff’s Department found the appellant asleep in his car while parked against a stop

sign on Crescent Road.1 State Trooper John Albertson testified that he arrived at the

scene around 5:00 a.m. and found the appellant sitting in his car with the driver-side

door open. Trooper Albertson observed two beer cans inside the vehicle and noticed

that the appellant smelled strongly of alcohol. He also noticed that appellant’s speech

was slurred and that he had difficulty walking.




        1
         Appar ently, the ap pellant’s ca r had rolled off the road until it came to rest aga inst a stop sign.
The ca r was fo und pa rked w ith its back-e nd exte nding into th e middle of an inters ection.

                                                        2
        The appellant admitted to the trooper that he had consumed alcoholic

beverages around 1:30 a.m. that morning and had fallen asleep on his way home.

Suspecting that the appellant was intoxicated, Trooper Albertson administered four

separate field sobriety tests. The appellant was asked to recite the alphabet, count to

five on his fingers, stand on one leg, and walk a straight line, heel to toe. Trooper

Albertson testified that he gave the appellant several opportunities to perform each

task; however, the appellant was unable to complete any of the four. Thereafter, the

appellant was placed under arrest and taken to a hospital emergency room for a blood

test.

        The appellant signed a consent/waiver form and gave a blood sample around

5:30 a.m. Trooper Albertson preserved the sample and shipped it by mail to the T.B.I.

Crime Lab where it was analyzed by forensic scientist, Edward L. Kuykendall. Mr.

Kuykendall testified that the appellant’s blood/alcohol level was 0.13 grams percent at

the time the sample was taken.

        The State presented the above evidence to establish appellant’s guilt on the

present D.U.I. offense. At the close of the evidence, the State requested a jury

instruction on the statutory presumption of intoxication contained in Tenn. Code Ann.

§ 55-10-408(b) (Supp. 1995). That instruction is required in cases where the

defendant has one or more prior D.U.I. convictions. The trial court conducted a

hearing outside the presence of the jury, but did not make a formal finding on the

record of appellant’s prior D.U.I. convictions. The trial court granted the State’s

request and instructed the jury in pertinent part as follows:

        If you find from the proof that the Defendant was found by means of a
        blood test to have eight-hundredths of one percent or more by weight of
        alcohol in his blood, you, the jury, are permitted to infer that the
        Defendant was under the influence of such intoxicant and that the
        Defendant’s ability to drive was therefore impaired sufficiently to
        constitute a violation of the law against driving under the influence of
        alcohol.




                                            3
             The jury convicted the appellant of driving under the influence as charged.

Thereafter, both the State and the appellant stipulated to appellant’s prior D.U.I.

convictions: (1) September 5, 1991 in the Rutherford County General Sessions Court;

and (2) November 26, 1991 in the Bedford County Sessions Court. The State read

the two prior convictions into the record, and the trial court sentenced the appellant for

third offense D.U.I.2

         On appeal, the appellant challenges the statutory presumption of intoxication

contained in Tenn. Code Ann. § 55-10-408(b) (Supp. 1995). Under that provision, a

defendant may be presumed to have been under the influence of an intoxicant, for the

purposes of D.U.I., if there is evidence that at the time alleged, the defendant’s blood/

alcohol level was eight-hundredths of one percent (.08%) or greater. The

presumption, however, is applicable only to defendants who have been previously

convicted of D.U.I. one (1) or more times. Otherwise, for first-time offenders, the

presumption of intoxication begins at ten-hundredths of one percent (.10%) blood/

alcohol level. Tenn. Code Ann. § 55-10-408(a) (Supp. 1995). 3

         The appellant argues that Tenn. Code Ann. § 55-10-408(b) violates his right to

equal protection because the 0.08 presumption of intoxication applies only to

defendants who have prior D.U.I. convictions, while first-time offenders receive the

0.10 presumption.

                                                     DISCUSSION

         Equal protection of the laws is guaranteed by the Fourteenth Amendment to the

United States Constitution and Article I, section 8 of the Tennessee Constitution. The


         2
             Tran scrip ts from the s ente ncin g hea ring w ere n ot ma de a p art of t he re cord on ap pea l.

         3
           In 1995, the General Assembly amended Tenn. Code Ann. § 55-10-408(a) to read: “Evidence
that th ere w as, a t the tim e alleg ed, te n-hu ndre dths of on e per cen t (.10% ) or m ore b y we ight o f alco hol in
the defendant’s blood shall be conclusive proof that the defendant was under the influence of such
intoxicant ...” Id. (emphasis added). The State Attorney General declared that provision unconstitutional
because it relieved the State of its burden of proving intoxication beyond a reasonable doubt. Tenn. Op.
Atty. Gen. No. 95-117 (Nov. 28, 1995). Under the current statutes, both the 0.10 percent standard and
the 0.08 p ercent s tandard are rebu ttable pres umption s of intoxica tion. See Tenn. Code Ann. § 55-10-
408 (19 98).

                                                             4
concept of equal protection under both the federal and state constitutions is that “all

persons similarly circumstanced shall be treated alike.” Doe v. Norris, 751 S.W.2d

834, 841 (Tenn. 1988) (quoting F.S. Royster Guono Co. v. Virginia, 253 U.S. 412,

415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920)). “Conversely, things which are different

in fact or opinion are not required by either constitution to be treated the same.”

Norris, 751 S.W.2d at 841; see also Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382,

2394, 72 L.Ed.2d 786 (1982).

       The determination of what is “different” and what is the “same” generally

resides with our state legislature. Norris, 751 S.W.2d at 841. When those legislative

determinations are challenged, this Court’s inquiry is generally limited to whether the

classifications have a reasonable relationship to a legitimate state interest. See State

v. Southern Fitness and Health, Inc., 743 S.W.2d 160, 164 (Tenn. 1987); State v.

Black, 745 S.W.2d 302, 305 (Tenn. Crim. App. 1987), per. app. denied (Tenn. 1987).

However, if a classification discriminates against a suspect class or infringes a

fundamental right, we must review it with strict scrutiny: the State must demonstrate

that the classification has been narrowly tailored to fulfill a compelling governmental

interest. Plyler, 457 U.S. at 217, 102 S.Ct. at 2395; State v. Tester, 879 S.W.2d 823,

828 (Tenn. 1994).

       The appellant contends that Tenn. Code Ann. § 55-10-408(b) impinges the

fundamental right to a fair trial because it lowers the burden of proof with respect to

repeat D.U.I. offenders. As such, he argues that this Court should review the statute

with strict scrutiny. We disagree.

       In all D.U.I. cases, regardless of the presumptive intoxication level, the State

has the burden of proving beyond a reasonable doubt that the defendant operated a

motor vehicle while under the influence of an intoxicant. If the defendant is a multiple

D.U.I. offender, the jury may presume that the defendant was intoxicated if it finds

beyond a reasonable doubt that the defendant’s blood/alcohol level was 0.08 percent


                                            5
or greater. Tenn. Code Ann. § 55-10-408(b) (Supp. 1995). The jury, however, is free

to disregard that presumption and rely strictly upon the evidence presented at trial. In

addition, the defendant may rebut the presumption by introducing evidence to the

contrary.

       We conclude that Tenn. Code Ann. § 55-10-408(b) does not violate the right to

a fair trial by lowering the presumptive level of intoxication for repeat D.U.I. offenders.

Our analysis under equal protection is whether the statute is rationally related to a

legitimate governmental interest.

       The legislature, in the instant case, has determined that D.U.I. crimes are a

growing problem on the highways and roadways in Tennessee. The legislature may

have reasonably concluded that repeat D.U.I. offenders represent a greater risk to the

public than first-time offenders because of their propensity towards driving while

intoxicated. To deter that criminal activity, the legislature has seen fit to lower the

statutory presumption of intoxication to 0.08 percent for repeat D.U.I. offenders. The

appellant concedes that the State of Tennessee has a legitimate interest in protecting

its citizens from those offenders. The 0.08 presumption of intoxication is rationally

related to deterring D.U.I. crimes and is, therefore, valid under equal protection.

       Nevertheless, we find that the application of Tenn. Code Ann. § 55-10-408(b)

presents procedural concerns in the guilt phase of D.U.I. trials. The statutory

presumption of intoxication under section 408(b) is applicable only where the

defendant has one or more prior D.U.I. convictions. Therefore, before the trial court

can instruct the jury under that statute, there must first be a finding that the defendant

is a prior D.U.I. offender.

       Our Supreme Court has held that it is prejudicial error to allow the jury to hear

evidence of a defendant’s prior convictions before the jury determines guilt or

innocence of the present crime. Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713,

717 (1965). In Harrison, the Supreme Court addressed the use of a defendant’s prior


                                             6
convictions for the purpose of enhancing punishment under the habitual criminal

statutes. 394 S.W.2d at 714-17. The Court noted that in some jurisdictions, evidence

of prior convictions may be presented to the jury during the prosecutions’ case in

chief. Id. at 714-15.4 That method allows the jury to consider the defendant’s prior

convictions before it has rendered a verdict on the defendant’s guilt or innocence of

the present crime. Id.

        The Court recognized the obvious risk of prejudice when a jury learns of a

defendant’s prior convictions while determining guilt or innocence of the present

offense. See id. at 717. The Court, therefore, concluded that even with a special jury

instruction, there is no way to guarantee a fair process unless evidence of prior

convictions is shielded from the jury until after it renders a verdict on the present

charge. Id.

        Following Harrison, trial courts have incorporated bifurcated trial procedures in

cases where a defendant is charged with a repeat D.U.I. offense. See Crawford v.

State, 469 S.W.2d 524, 525 (Tenn. Crim. App. 1971), per. app. denied (Tenn. 1971).5

Indictments in those cases generally include two counts, the first count charging the

defendant with the present D.U.I. offense, and the second count alleging the prior

D.U.I. convictions. In the first stage of trial, the jury is permitted only to determine guilt

or innocence of the present offense alleged in count one. If the jury finds the

defendant guilty of that offense, then, and only then, may the jury hear and consider

evidence of the prior convictions for the purpose of determining punishment. See id.

        In this case, we are not concerned with the enhanced punishment of D.U.I.

offenders. Instead, we must address the manner in which evidence of a defendant’s




        4
          The Harrison Court characterized that method as the “common law method.” See id. at 714-15
(citations omitted).

        5
         Similar to the habitual criminal statutes at issue in Harrison, sup ra at 7 14, th e D.U .I. law s in
Tennessee allow enhanced punishment for repeat D.U.I. offenders. Tenn. Code Ann. § 55-10-403(a)(1)
(Supp . 1995).

                                                      7
prior D.U.I. convictions can be introduced during the guilt phase of trial for the

purposes of instructing the jury.

        The bifurcated trial procedures were mandated by our Supreme Court in

Harrison, supra at 717, before the General Assembly created the “repeat offender”

provision in Tenn. Code. Ann. § 55-10-408(b) (Supp. 1995). Accordingly, we must

presume that the General Assembly had knowledge of those procedures and intended

for them to apply in cases where the jury is charged under the 0.08 presumption.

Aside from special exceptions,6 the jury must not hear or consider evidence of a

defendant’s prior D.U.I. convictions until after it has determined guilt or innocence of

the present D.U.I. offense. See Harrison, 394 S.W.2d at 717; Crawford, 469 S.W.2d

at 525. Nevertheless, Tenn. Code Ann. § 55-10-408(b) implicitly requires

consideration of prior convictions before the jury is instructed on the presumptive

standard of intoxication.

        This apparent conflict may be reconciled in a manner that upholds the validity

of the statute. We conclude that in D.U.I. cases, the trial court must make the

determination of the defendant’s prior convictions, if any, outside the presence of the

jury. If the trial court finds by a preponderance of the evidence that the defendant has

a prior D.U.I. record, then the court shall charge the jury under the standard set forth

in Tenn. Code Ann. § 55-10-408(b).

                                          CONCLUSION

        In all D.U.I. cases, it is the trial court’s duty to instruct the jury under the

appropriate statute governing the presumption of intoxication. When the defendant is

a first time offender, the presumption of intoxication is 0.10 percent blood/alcohol level

or greater. Tenn. Code Ann. § 55-10-408(a). Otherwise, the text of section 408(b)

provides that an accused may be presumed to be intoxicated if his or her




        6
        Nothing in this opinion is intended to disturb Rule 404(b) or Rule 609 of the Tennessee Rules of
Evidence.

                                                   8
blood/alcohol level is 0.08 percent or greater, when the accused has one or more prior

D.U.I. convictions. Tenn. Code Ann. § 55-10-408(b).

         In this case, the record is unclear whether the trial court made a specific finding

of appellant’s prior D.U.I. convictions before instructing the jury. However, we

presume that the trial court made such a finding during the hearing outside the

presence of the jury. The trial court heard arguments for and against the section

408(b) provision and decided to charge the jury under the 0.08 standard.

         The record reflects that the appellant’s blood/alcohol level was 0.13 percent

following his arrest in Rutherford County. Based upon that evidence and the trial

court’s instruction, the jury was free to convict the appellant under the 0.08

presumption of intoxication or other evidence that appellant was intoxicated while

operating a motor vehicle. We find no reversible error in that proceeding and affirm

the judgment of the trial court.



                                                       _________________________________
                                                       WILLIAM M. BARKER, Special Judge



CONCUR:


_____________________________
JOE G. RILEY, JUDGE


   (Not Participating) *******
JOE B. JONES, Presiding Judge




         *******
              Judge Jones died on May 1, 1998, following a distinguished career as a trial attorney and as
a res pec ted m emb er of th e Co urt of C rimin al Ap pea ls sinc e his a ppo intme nt in N ove mbe r, 198 6. He will
be greatly missed.

                                                          9
               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE

                               OCTOBER 1997 SESSION


STATE OF TENNESSEE                         )
                                           )             NO. 01C01-9612-CC-00536
       Appellee                            )
                                           )             Rutherford County No. 34917
v.                                         )
                                           )             Hon. James K. Clayton, Jr.
MICHAEL ELMORE ROBINSON                    )
                                           )             (D.U.I., 3rd Offense)
       Appellant.                          )
                                           )             AFFIRMED


                                       JUDGMENT

       Came the appellant, Michael Elmore Robinson, by and through counsel, and

also came the attorney general on behalf of the State, and this matter was heard on

the record on appeal from the Circuit Court of Rutherford County; and in consideration

thereof, this Court is of the opinion that there is no reversible error in the judgment of

the trial court.

       In accordance with the opinion filed herein, it is, therefore, ordered and

adjudged that the judgment of the trial court is affirmed, and this case is remanded to

the Circuit Court of Rutherford County for the execution of the judgment of that court

and for the collection of costs accrued below.

       Costs of appeal will be paid into this Court by the appellant, Michael Elmore

Robinson, for which execution may issues if necessary.
       In the event the appellant indicates the intention to file an application for

permission to appeal to the Supreme Court, his bond shall be set in the total amount

of $5,000, with sufficient sureties to be approved by the Clerk of the trial court;

pending the filing and disposition of said application, and in default of such bond, he

will be remanded to the Sheriff of Rutherford County.


                                   William M. Barker, Special Judge
                                   Joe G. Riley, Judge




                                            11
