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Cooley v. State Department of Public Safety2/1/2002
dths of one percent (.08%) or more but less than ten-hundredths of one percent (.10%) by weight of alcohol in the defendant's blood shall create a presumption that the defendant's ability to safely operate a motor vehicle was sufficiently impaired by such alcohol to constitute a violation of this section.
"[Tenn. Code Ann.] § 55-50-405 Commercial driver licenses, Violations--Penalties--Driving under the influence.
"(1) The commissioner shall suspend for at least one (1) year, a commercial motor vehicle operator who is found to have committed a first violation of:
"(A) Driving a commercial motor vehicle under the influence of alcohol with a blood alcohol concentration (B.A.C.) of point zero four (.04) or greater, or other controlled substance."
The record contains a judgment entered against Cooley by the criminal /circuit court of Robertson County, Tennessee, dated February 8, 2001, for the offense of DUI and conviction offense of driving while impaired. The record also contains an affidavit by Cooley's attorney, Phillip L. Davidson. The affidavit states, in part,
"2. Mr. Cooley registered .05 on a breathalyzer test. T.C.A. § 55-50-408 states that a person who has a CDL and has a .04 blood alcohol content commits the offense of driving under the
influence of alcohol.
"3. The District Attorney and I agreed that the evidence was not sufficient to go forward with a charge of DUI. We agreed to reduce the charge to driving while impaired. The .08 part of the driving impaired statute was waived by the pleading."
The Tennessee and Alabama statutes are comparable regarding the blood-alcohol level (.08 or greater) for convictions based on driving while intoxicated or impaired and/or driving under the influence ("DUI"). Both states also have a statutory provision addressing the consumption of alcohol that impairs a person's ability to safely operate a motor vehicle. Further, both address the blood-level content for a commercial driver, stating that a blood-level content of ".04% or greater" is considered driving under the influence and is punishable by a disqualification of at least one year of the person's CDL. Although Cooley was not convicted based on a blood alcohol content of .08% or higher, he admitted to consuming alcohol, and he received a .05% rating on the breathalyzer test. It appears that Cooley's conduct, if committed in this state, would be grounds for suspension of his driver's license and disqualification of his CDL; therefore, the DPS was within its authority to issue a 90-day suspension of his driver's license and a one-year disqualification of his CDL. See Bruno v. Director, Dep't of Public Safety, 673 So. 2d 445 (Ala. Civ. App. 1995)(conduct used as a basis for an out-of-state conviction for a driving offense must also be conduct that would authorize the suspension or revocation of a license in Alabama). Based on the record and the applicable statutes, we cannot say that the trial court erred in dismissing Cooley's writ of mandamus, thereby affirming the judgment of the DPS. Accordingly, we affirm the judgment of the trial court.
AFFIRMED.
Crawley, Thompson, Pittman, and Murdock, JJ., concur.
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