               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT NASHVILLE                 FILED
                                   MARCH 1997 SESSION
                                                                      October 16, 1997

STATE OF TENNESSEE,                             )                  Cecil W. Crowson
                                                )                Appellate Court Clerk
                 Appellee,                      ) C.C.A. No. 01C01-9605-CC-00209
                                                )
VS.                                             ) Coffee County
                                                )
MARK T. SCISNEY,                                ) Hon. Gerald L. Ewell, Sr., Judge
                                                )
                 Appellant.                     ) (DUI While Driving Commercial Vehicle)


                                   DISSENTING OPINION


       My learned colleague, Judge W oodall, presents an excellent, comprehensive

analysis of the law relating to blood alcohol concentrations; however, I respectfully

disagree with the conclusion that an Intoximeter 3000 reading of .04, which can result

from actual concentrations ranging from .035 to .054, is sufficient to establish beyond

a reasonable doubt a violation of the .04 statute. I agree with Judge Tipton’s

conclusion that the Intoximeter 3000 reading of .04 is insufficient, by itself, to prove

beyond a reasonable doubt that the defendant was driving with a .04 blood alcohol

concentration; however, I respectfully disagree with the conclusion that this reading,

combined with other evidence in this case, is sufficient to establish guilt.

       The analysis of Tenn. Code Ann. 55-50-408 is simple from my perspective.

A violation of this statute requires “a blood alcohol concentration of point zero four

(.04) or more...” We should look to the statute itself and rely, when possible, upon

the ordinary meaning of its language and terms used, refraining from any forced or

subtle construction to limit or extend the statute’s meaning. State v. Smith, 893

S.W.2d 908, 917 (Tenn. 1994), cert. denied 116 S.Ct. 99, 133 L.Ed. 2d 53 (1995).

       The state’s expert witness testified that the acceptable tolerance of the

Intoximeter 3000 is plus or minus .005. Therefore, as Judge Woodall correctly

concedes, a .04 reading could result from an actual blood alcohol concentration

ranging from .035 to .054.1 In other words, there is a twenty-five percent (25%)



       1
           In fact, the October 25th .025 standard test on this machine read high.
statistical chance this defendant had an actual blood alcohol concentration below .04.

To me, .04 means .04 and not .039 or below. Considering the tolerance, it is simply

impossible to conclude beyond a reasonable doubt that the defendant had an actual

blood alcohol concentration of .04 or more.

       This scenario is no different than placing twenty (20) people in a room, fifteen

(15) of whom are named “John” and five (5) of whom are named “Joe.” A random

selection of one of those persons could not establish beyond a reasonable doubt that

such person’s name is “John” simply because there is a seventy-five percent (75%)

statistical probability that his name is “John.” “Reasonable doubt” is simply not

subject to such a mathematical analysis.

       The concurring opinion concludes that evidence that defendant had a couple

of tall beers in Georgia several hours earlier, smelled of alcohol upon his arrest in

Coffee County, and was properly administered the intoximeter test, coupled with the

reading of .04, is sufficient to establish beyond a reasonable doubt that the defendant

had an actual blood alcohol concentration of .04 or more. I am unable to make such

a leap. The record does not suggest that such facts make the defendant any more

or less likely to have a reading of .04 or more as opposed to .039 or less.

       Defendant has lost in a game of chance. At best, we can say the “odds are”

that he was .04 or more. “Odds are” is insufficient to establish proof beyond a

reasonable doubt. I respectfully dissent.




                                          JOE G. RILEY, JUDGE




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