                                                 FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE
                                                  October 24, 1997
                         AUGUST 1997 SESSION
                                                 Cecil W. Crowson
                                                Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )
           Appellee,              )    C.C.A. No. 01C01-9611-CR-00483
                                  )
vs.                               )    Wilson County
                                  )
CHARLES BOURGEOIS,                )    Honorable J.O. Bond, Judge
                                  )
           Appellant.             )    (DUI)
                                  )



FOR THE APPELLANT:                     FOR THE APPELLEE:

FRANK LANNOM                           JOHN KNOX WALKUP
Attorney at Law                        Attorney General & Reporter
P.O. Box 649
Lebanon, TN 37088-0649                 ELLEN H. POLLACK
                                       Assistant Attorney General
                                       Criminal Justice Division
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       TOM P. THOMPSON, JR.
                                       District Attorney General

                                       DOUG HALL
                                       Assistant District Attorney General
                                       111 Cherry Street
                                       Lebanon, TN 37087


OPINION FILED: ____________________


REVERSED AND REMANDED

CURWOOD WITT
JUDGE
                                      OPINION

               The defendant, Charles Bourgeois, appeals his conviction of driving

under the influence. Bourgeois was convicted following a jury trial in the Wilson

County Criminal Court. The court sentenced him to serve 11 months, 29 days, with

all but 10 days suspended in favor of probation, revoked his driver's license for one

year, and fined him $350.00 plus costs. In this direct appeal, Bourgeois alleges the

trial court improperly admitted evidence of the level of alcohol in his blood. Although

we find no merit in this argument, we nevertheless reverse the defendant's

conviction and remand for a new trial, based upon plain error in the trial court's

instruction to the jury.



               On November 18, 1995, Bourgeois was arrested for driving under the

influence following a traffic accident in Wilson County. He submitted to a blood test

to determine his blood alcohol concentration on the request of the arresting officer.

According to a TBI forensic scientist who tested the Bourgeois blood sample, the

blood alcohol concentration was .18%.



                                           I

               Bourgeois contends in this appeal that the trial court erred in admitting

the evidence of the level of alcohol in his blood. While he concedes the relevance

of the test result that his blood alcohol concentration was .10% or more, he argues

the evidence of the exact amount by which the concentration exceeded .10% should

not have been admitted by the trial court because it was (1) irrelevant, or if relevant,

its probative value was outweighed by its danger of misleading the jury, (2) not

evidence that would substantially assist the trier of fact, and/or (3) so speculative

as to deprive him of his right to due process and a fair trial.

               At the time of the offense of which the defendant was convicted, the

DUI statute provided a conclusive presumption of intoxication and impairment upon

                                           2
a showing the blood alcohol content was .10% or greater. See Amendments, Tenn.

Code Ann. § 55-10-408 (Supp. 1996).           The trial court found this conclusive

presumption unconstitutional, found no severability clause in the statute which

would allow it to elide only the unconstitutional portion of the statute, and applied

the prior version of section 55-10-408 to the defendant.1 Under prior law, a blood

alcohol weight of .10% or greater created a presumption of intoxication and

impairment. See Amendments, Tenn. Code Ann. § 55-10-408 (Supp. 1996).

Accordingly, the court allowed the TBI scientist to testify that the weight of alcohol

in the defendant's blood sample was .18%.



              The defendant would have us hold the court should have allowed the

TBI scientist to testify that his blood alcohol content was .10% or greater, without

specifying the exact percentage. He opines that allowing the jury to have the

information of the exact percentage, without expert testimony to assist in

interpreting the meaning of the percentage, permitted the jury to engage in "wild

speculation" as to its meaning. We are unpersuaded. At trial, the state had the

burden of proving the defendant was intoxicated and thereby impaired. The state

had no burden of showing the extent of that impairment. By introducing evidence

that the weight of alcohol in the defendant's blood was .18%, the state presented

evidence from which the trier of fact, guided by the statute, could infer the

defendant's guilt. In a case of this nature, the jury is not left to speculate on the

meaning and effect of any alcohol above .10% in the defendant's blood because

that is not at issue unless the defendant puts it at issue by attempting to show he



       1
         Although neither party challenges the propriety of the trial court's action in
this regard, we note parenthetically this action is in accord with a recent decision
of this court in another DUI case. State v. Mark Spencer King, No. 01-C-01-
9608-CR-00343 (Tenn. Crim. App., Nashville, Sept. 18, 1997); see also State v.
Dixon, 530 S.W.2d 73, 75 (Tenn. 1975) ("[A] criminal statute superseded or
repealed by an unconstitutional act is left unaffected by the passage of the void
repealing act.").

                                          3
was not impaired despite the level of alcohol in his blood. In the event the

defendant wishes to challenge the inference that may be drawn from the evidence

of his blood alcohol level of .10% or greater, he may present expert evidence of his

own which will assist the jury in interpreting the particular result and its effect on him

individually. In sum, evidence of the exact level of alcohol in Bourgeois' blood was

relevant, material, and would not lead to "wild speculation" by the jury. See Tenn.

R. Evid. 401, 402, 403. The testimony of an expert with special skill in determining

the concentration of alcohol in a defendant's blood sample is of substantial

assistance to the trier of fact in determining whether the defendant is guilty of DUI.

See Tenn. R. Evid. 702.



               While we credit defense counsel with zealous advocacy on behalf of

his client, we find this issue without merit.



                                            II

               Bourgeois alleged in his motion for new trial that the trial court

improperly instructed the jury on the statutory presumption of intoxication and

impairment upon a showing of a weight of alcohol in the blood of .10% or greater,

thereby violating his constitutional guarantee of due process. This argument was

not raised in the defendant's brief; nevertheless, we elect to address it under Rule

of Criminal Procedure 52(b) and Rule of Appellate Procedure 36(a).



               Due process requires the state to prove every element of a crime

beyond a reasonable doubt. See U.S. Const. amend. XIV, § 1. In proving its case,

the prosecution may not use evidentiary presumptions which are conclusive in

nature or shift the burden of proof to the defendant. Francis v. Franklin, 471 U.S.

307, 105 S. Ct. 1965 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450

(1979). In the context of another DUI case, the Tennessee Supreme Court recently

                                            4
articulated:

       We caution both court and counsel that the United States Supreme
       Court, as well as this Court, has held that the due process clause of
       the Fourteenth Amendment protects an accused against conviction
       except upon proof beyond a reasonable doubt of every fact necessary
       to constitute the crime with which he is charged. This principle
       prohibits the State from using evidentiary presumptions in a jury
       charge that have the effect of relieving the [s]tate of its burden of
       persuasion beyond a reasonable doubt of every essential element of
       the crime. Francis v. Franklin, 471 U.S. 307, [313], 105 S. Ct. 1965,
       1970[] (1970); State v. Baker, 729 S.W.2d 286, 287 (Tenn. Crim. App.
       1987). In State v. Martin, 702 S.W.2d 560 (Tenn. 1985) [overruled
       on other grounds, State v. Brown, 836 S.W.2d 530 (Tenn. 1992)], this
       Court, citing from its previous ruling in State v. Bolin, 678 S.W.2d 40,
       44-45 (Tenn. 1984), reiterated, "that trial judges should avoid the use
       of the term 'presumption' in instructing juries in criminal cases except
       for the presumption of innocence. In its place juries may be instructed
       that a permissible inference may or may not be drawn of an elemental
       fact from proof by the State of a basic fact, but that such an inference
       placed no burden of proof of any kind upon a defendant."

State v. Sensing, 843 S.W.2d 412, 417 (Tenn. 1992) (emphasis added). If the jury

is erroneously instructed, reversal is required unless the error was harmless beyond

a reasonable doubt. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).



               In the case at bar, the trial court instructed the jury in pertinent part:

       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 [d]efendant was under the
       influence of such intoxicant, and that the [d]efendant's ability to drive
       was impaired thereby, sufficiently to constitute a violation of 55-10-
       401.
       ...
       I have used the terms presumption and inference during this trial. It
       is the exclusive province of the jury to determine whether the facts
       and circumstances shown by all the evidence in the case warrant the
       inference which the law permits the jury to draw. The presumption or
       inference may be rebutted by direct or circumstantial evidence or
       both, whether it exists in the evidence of the [s]tate or is offered by the
       [d]efendant. Although the [d]efendant is not required by law to do so,
       when the [d]efendant offers an explanation along with all the evidence
       to determine not only the correctness of the presumption or inference,
       but also the reasonableness of the [d]efendant's explanation[, y]ou
       are not bound to accept either the inference or the [d]efendant's
       explanation. The [s]tate must prove beyond a reasonable doubt every
       element of the offense before the [d]efendant can be found guilty.

These instructions, which employ the "presumption that the [d]efendant was under


                                           5
the influence of such intoxicant, and that the [d]efendant's ability to drive was

impaired thereby," unfairly relieved the state of its burden of proof as to an essential

element of the offense of DUI. Also, the instruction that the presumption "shall,"

rather than "may," arise from evidence of alcohol in the blood of .10% or greater

could be interpreted by a reasonable juror as mandatory. See State v. Bryant, 585

S.W.2d 586 (Tenn. 1979). The language that follows does not cure the error. See

Francis, 471 U.S. at 316, 105 S. Ct. at 1972, 1794 (language that presumption

"may be rebutted" does not cure error of instruction which commands jury to

presume an element of the offense from the evidence, nor does general instruction

as to prosecution's burden of proof).      We likewise note the charge, read in its

entirety, does not explain or cure the error illustrated above. See Francis, 471 U.S.

at 325, 105 S. Ct. at 1977. We cannot say this error is harmless beyond a

reasonable doubt because the proof of impairment, other than the blood-alcohol

test result, was not compelling. As such, Bourgeois' conviction is constitutionally

infirm and cannot stand.



              On remand, if the state presents the test result as evidence, the court

should instruct the jury that the law allows it to infer the defendant was under the

influence of an intoxicant and his ability to drive was impaired by such intoxication

from proof that there was .10% or more by weight of alcohol in the defendant's

blood. However, the jury is not required to make the inference, and in its province

as trier of fact may determine whether the facts and circumstances as shown by the

evidence warrant any inference which the law permits to be drawn from the blood

test result. Moreover, the inference, if drawn, may be rebutted by other evidence

and circumstances. Ultimately, the jury is to determine whether to make the

inference, the correctness of the inference, and the weight to be given to any such

evidence. See State v. Baker, 729 S.W.2d 286 (Tenn. Crim. App. 1987) (trial court

properly instructed jury in DUI case); Bryant, 585 S.W.2d at 589-90 (outlining proper

                                           6
procedure for instructing jury on a permissive inference based upon a statutory

presumption).



              Accordingly, we reverse the defendant's conviction and remand to the

trial court for a new trial, consistent with the holdings of this opinion.



                                            _________________________________
                                            CURWOOD WITT, JUDGE



CONCUR:



________________________________
JOE G. RILEY JR., JUDGE



________________________________
JOSEPH H. WALKER, III, SPECIAL JUDGE




                                           7
