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State v. Keathly5/21/2003
210(e).
In determining the Appellant's sentence, the trial court applied the following enhancement factors: (1) The Appellant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (3) The offense involved more than one victim; and (10) The Appellant had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(1), (3), (10) (1997).
The Appellant first contends that enhancement factor (1) was misapplied because a prior DUI conviction is an essential element of vehicular assault as charged in this case. Enhancement factors may not be applied if the factors are "themselves essential elements of the offense as charged in the indictment." Tenn. Code Ann. § 40-35-114 (Supp. 2002). Specifically,
he Appellant submits that the legislature considered a driver's prior conviction for DUI as a sentence enhancer when it decreased the presumptive level of intoxication and impairment from ten-hundredths of one percent (.10%) or more by weight of alcohol to eight-hundredths of one percent (.08%) of more by weight of alcohol. See T.C.A. § 55-10-408. But for the Appellant's prior DUI conviction, there would have been no presumption of intoxication under the current statutory scheme. It was in fact his prior DUI conviction that lowered the threshold or presumption from that of .10% to .08% causing this criminal action to be commenced.
Pursuant to Tennessee Code Annotated § 39-13-106(a) (Supp. 2002):
A person commits vehicular assault, who, as the proximate result of the person's intoxication as set forth in § 55-10-401, recklessly causes serious bodily injury to another person by the operation of a motor vehicle. For purposes of this section, "intoxication" includes alcohol intoxication as defined by § 55-10-408, drug intoxication, or both.
Accordingly, the elements of vehicular assault are: (1) operation of a motor vehicle; (2) while under the influence of an intoxicant; (3) recklessly inflicting serious bodily injury to another person; and (4) the victim was injured as a proximate result. State v. Williamson, 919 S.W.2d 69, 75 (Tenn. Crim. App. 1995) (citing Tenn. Code Ann. § 39-13-106(a)). Evidence of alcohol intoxication can be proven by reference to Section 55-10-401 or Section 55-10-408. Tennessee Code Annotated Section 55-10-408 (Supp. 2002), titled, Tests for alcoholic or drug content - Presumptions of intoxication and impairment, provides:
(a) For the purpose of proving a violation of § 55-10-401(a)(1), 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 defendant's ability to drive was sufficiently impaired thereby to constitute a violation of § 55-10-401(a)(1).
(b) Evidence that there was, at the time alleged, eight-hundredths of one percent (.08%) or more by weight of alcohol in the defendant's blood shall create a presumption that the defendant was under the influence of such intoxicant, and that the defendant's ability to drive was impaired thereby, sufficiently to constitute a violation of § 55-10-401(a)(1). The provisions of this subsection only apply if the defendant has been convicted one (1) or more times of violating the provisions of § 55-10-401.
If a defendant was previously convicted of driving under the influence, then the presumption of intoxication may be lowered for .10% to .08%. Thus, the issue in a prosecution for DUI under the per se provisions of section (b) is not whether the person is "under the influence," typically a subjective determin
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