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State v. Collins12/12/2005
s blood, you, the jury, are permitted to infer that the defendant was under the influence of such intoxicant, and that the defendant's ability to drive was therefore impaired sufficiently to constitute a violation of the law against driving under the influence of alcohol.
However, you are never required to make this inference.
The jury instruction was entirely in accord with this Court's ruling in Hatfield, stating that if the jury found the Defendant's blood alcohol level to be .10, the jury was at liberty to find that the Defendant was under the influence of an intoxicant, but that they were not required to do so. Therefore, we conclude that the jury instructions were not erroneous.
With regard to the Defendant's contention that, pursuant to the instructions given, if the jury convicted on one count they had no choice but to convict on the other, we note that DUI and DUI per se contain different elements. See Tenn. Code Ann. § 55-10-401(a)(1) & 401(a)(2). This Court has held that an acquittal of either would not necessarily mean that the state could not establish the elements of the other. State v. Conway, 77 S.W.3d 213, 218 (Tenn. Crim. App. 2001).
In Conway, the defendant was charged with DUI and DUI per se. Id. Ultimately, the jury acquitted the defendant of DUI, while finding him guilty of DUI per se. Id. In the case under submission, while it is true that the jury could have inferred that the Defendant was in fact intoxicated, based on his .12 blood alcohol level, thus, satisfying the third element of DUI per se, the jury could also have discredited the State's evidence that the Defendant had a blood alcohol level of .12 and still found the Defendant guilty of DUI based upon the testimony of Officer Wilson and Phillip Martin. Alternatively, the jury could have found the State's evidence that the Defendant had a blood alcohol level of .12 credible and found him guilty of DUI per se, without finding that the defendant was under the influence of the intoxicant and thus, could have found the Defendant not guilty of DUI. As such, we conclude that the jury instructions did not create an unconstitutional mandatory inference of guilt, and we affirm the Defendant's convictions.
III. Conclusion
In accordance with the foregoing, we conclude that there exists no reversible error in the judgments of the trial court. Therefore, the judgments of the trial court are affirmed.
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