        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                FILED
                           APRIL SESSION, 1997           December 23, 1997

                                                      Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
STATE OF TENNESSEE,               )   C.C.A. NO. 03C01-9610-CR-00378
                                  )
      Appellee,                   )
                                  )
                                  )   HAMILTON COUNTY
VS.                               )
                                  )   HON. GARY D. GERBITZ
DONNIE LAMAR CARDEN,              )   JUDGE
                                  )
      Appe llant.                 )   (Certified Question of Law)



FOR THE APPELLANT:                    FOR THE APPELLEE:

JOHN G. MCDOUGAL                      JOHN KNOX WALKUP
701 Broad Street, Tivoli Center       Attorney General and Reporter
Suite One LL
Chattanooga, TN 37402                 MICH AEL J . FAHE Y, II
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243

                                      BILL COX
                                      District Attorney General

                                      JOHN BOBO
                                      Assistant District Attorney
                                      Courts Building
                                      Chattanooga, TN 37402


OPINION FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE
                                      OPINION


       A Hamilton County grand jury indicted Appellant, Donnie Carden, with charges

of Driving Under the Influence and Possession of Marijuana. Appellant filed a motion

to dismiss based upon his contention that prosecution of these charges was barred by

double jeopardy. After a hearing, Appellant’s motion was denied. Appellant pled guilty

to D.U.I. - 3rd offense and Possession of Marijuana, but reserved the right to appeal

based on a certified question of law. Appellant raises the issue whether the policy of

the Hamilton County jail of holding someone in custody for a period of six hours to

“sober” them up is punitive in nature and whether the Fifth Amendment protection

against double jeopardy barred subsequent prosecution of Appellant on the charges

for which he was arrested after confinement under this policy .



       After a review of the record, we affirm the judgment of the trial court pursuant to

Court of Criminal Appeals Rule 20.



       Hamilton County law enforcement arrested Appellant on November 4, 1995, for

driving under the influence, possession of marijuana, and for possession of drug

paraphernalia. Appellant refused to submit to a breath alcohol test and was

incarcerated in the Hamilton County jail. Appellant was held in custody for nine and one

half hours before being released on bail into his father’s custody.



       The Hamilton County jail has a policy requiring that anyone arrested for Driving

Under the Influence must be detained in that facility for at least six hours. The county

sheriff testified that this policy is based upon public safety considerations. In Appellant’s

case, Appellant’s father posted bond for Appellant approximately five hours before




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Appellant was released. After the denial of Appellant’s motion to dismiss, Appellant

pled guilty while reserving this question of law.



       With respect to Appellant’s double jeopardy issue, Appellant relies upon this

Court’s decision in State v. Pennington, C.C.A. No. 0101-937-PB-00219, Davidson

County (Tenn. Crim. App. , Nashville, Feb.1, 1996) to support his contention that

detention pursuant to a policy of detaining arrestees after arrest for D.U.I. makes

subsequent prosecution for D.U.I. violative of double jeopardy. However, the Supreme

Court recently released State v. Pennington, S.Ct. No. 01-S-01-9607-PB-00133,

Davidson County (Tenn., Sept. 8, 1997) overturning this Court’s decision in that matter.

In that opinion, the Supreme Court specifically held that detention policies such as the

one at issue in this case do not invoke the protections of double jeopardy.



              In this case, the parties stipulated that one of the purposes of
              the detention policy was to keep suspected drunk drivers off
              the road for a period of time after their arrest. In other words,
              the policy was intended, at least in part, to protect the public
              from individuals who had been arrested on suspicion of driving
              under the influence. This is a remedial purpose, not a punitive
              one, and therefore, the defendant’s initial appearance before
              the judicial commissioner does not constitute an essentially
              criminal proceeding brought to “vindicate public justice.”


Pennington, Id..



       Accordingly, we affirm the trial court’s judgment pursuant to Court of Criminal

Appeals Rule 20.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




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CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
CHRIS CRAFT, SPECIAL JUDGE




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