              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE                     FILED
                               MARCH 1997 SESSION
                                                                    October 16, 1997

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



                                CONCURRING OPINION



              I concur in the results reached in the lead opinion. However, I am

reluctant to adopt the conclusion that under Tennessee law, an Intoximeter 3000

reading of .04 percent is sufficient, by itself, to prove beyond a reasonable doubt that

the defendant was driving with a .04 percent blood alcohol concentration.



              As for the sufficiency of the evidence in this case, I do not believe that the

conviction is based solely upon the breath test result of.04 percent. In the light most

favorable to the state, the evidence reflects that the defendant had a couple of tall

beers in Georgia several hours earlier. The officers smelled an odor of alcohol upon

the defendant’s person when he was stopped in Coffee County. The officers waited

thirty to forty minutes before administering the breath test. These facts, coupled with

the breath test reading of .04 percent, lead me to conclude that the evidence was

sufficient to convict the defendant beyond a reasonable doubt for driving a commercial

vehicle in Coffee County, Tennessee, with, at least, a .04 blood alcohol concentration.
              On the other hand, I am not ready to concede that the Intoximeter 3000

reading in this case provides sufficient proof, by itself, to find beyond a reasonable

doubt that the defendant’s blood alcohol concentration was, in fact, .04 percent. The

fact that in any given test, the Intoximeter 3000 reading has a plus or minus .005

percent range of deviation from the actual blood alcohol concentration means that the

actual concentration could be .035 percent when the test registers a .04 percent result.

Also, this deviation, coupled with the instrument’s rounding down to the nearest

hundredth, means that an actual concentration of .054 percent could register as .04

percent, as well. This reflects a total deviation range of 20 thousandths of one percent

for any given breath test result. In other words, any given test that registers .04 percent

has a 25 percent chance of reflecting an actual concentration of less than .04 percent.

In my opinion, the test, alone, cannot justify a finding beyond a reasonable doubt that a

person’s blood alcohol concentration is actually .04 percent. Put another way, I do not

believe that it would allow any rational juror’s mind to rest easily upon the moral

certainty of the actual concentration being .04 percent.



              Moreover, I am not convinced that the lead opinion’s interpretation of

legislative intent based upon the wording of our statutes is wholly accurate. I note that

T.C.A. § 55-10-408 provides that a rebuttable presumption of intoxication and

impairment arises upon “evidence that there was . . . ten-hundredths of one percent

(.10%) or more by weight of alcohol in the defendant’s blood . . . “ relative to driving

under the influence of an intoxicant. Thus, under State v. Sensing, 843 S.W.2d 412

(Tenn. 1992), a reading of .10 percent from an Intoximeter 3000 would constitute such

“evidence” that would be probative of the issue of intoxication, at least as a matter of

legal inference.



              Given the legislature’s wording in the rebuttable presumption statute, I

believe it to be significant that no such wording exists in the per se offense statutes,



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which expressly refer to the “blood alcohol concentration” amount, not “evidence” of

such amount. See T.C.A. §§ 55-10-401(a)(2) and 55-50-408. Obviously, if the

legislature had meant for the prohibited blood alcohol concentration to be that as

evidenced by a chemical test, it could have said so.



              Finally, I see some significance in the fact that the cases upon which the

lead opinion relies relate to .10 percent per se provisions that are alternatives to the

driving under the influence provisions. As indicated in State v. Lentini, 573 A.2d 464,

465 (N.J. Super. Ct. App. Div. 1990), studies reflect that a high percentage of people

are impaired at .08 percent and almost all are impaired at .10 percent. Thus, as a

matter of practice and policy, it makes little difference to the dangerous risk involved

whether a person’s blood alcohol concentration is actually .095 percent rather than .10

percent. However, there is no similarly proven relationship between .035 percent and

.04 percent. I cannot assume that the legislature thought them to be the same for

commercial driving purposes.



              In sum, I concur in affirming the judgment of conviction given the

sufficiency of the convicting evidence. However, I refrain from concluding that the

Intoximeter 3000 test result of .04 percent, alone, would be sufficient to convict under

T.C.A. § 55-50-408.



                                                 _____________________________
                                                 Joseph M. Tipton, Judge




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