         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 14, 2000 Session

                 STATE OF TENNESSEE v. WILLIAM J. CLOUSE

                                         Filed July 11, 2001

DAVID G. HAYES, J., concurring.


        I join with Judge Ogle in concluding that the Appellant's double jeopardy rights were not
violated. I would also make the observation that, similar in purpose to the DUI statute, the stated
public policy purpose in enacting the Motor Vehicle Habitual Offender Act was to remove from the
highways those offenders who have "demonstrated their indifference to the safety and welfare of
others." Tenn. Code Ann. § 55-10-602(2).

Additionally, when the "no bail" policy position was instituted, the sentence of the habitual offender,
similar to the minimum mandatory sentence of the DUI offender, could not be suspended. Tenn.
Code Ann. § 55-10-616(c). For these and other reasons, the habitual motor offender and the DUI
offender were both viewed by the legislature and our courts as an immediate and common threat to
those traveling the public highways of this state. In State v. Pennington, 952 S.W.2d 420 (Tenn.
1997), our supreme court found, in part, that protection of the public by a brief period of pretrial
detention of a suspected DUI offender was reasonably related to a legitimate government purpose,
i.e., protection of the public. While concededly, the no bail policy position was ill-founded, this does
not compel, however, the conclusion that it was imposed solely to punish. In the absence of proof
of an intent to punish, a court should look to an alternative reason which may serve a legitimate
governmental purpose. Doe v. Norris, 751 S.W.2d 834, 839 (Tenn.1988). I find from the facts in
this case that it may reasonably be inferred that the basis of the policy was both the immediate
protection of the public and attendance of the habitual offender for trial.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE
