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State v. Munson12/31/2001
This is an interlocutory appeal by the state from an order by the trial court excluding a .20 breathalyzer result from consideration in the imposition of an enhanced sentence for a DUI offense. The order is vacated and the cause is remanded for trial.
Tenn. R. App. P. 9; Judgment of the Trial Court Reversed; Cause Remanded
Gary R. Wade, P.J., delivered the opinion of the court, in which Thomas T. Woodall, J., joined. Joe G. Riley, J., filed a concurring opinion.
OPINION
On January 10, 1999, the defendant was arrested and charged with reckless driving, disregarding a red light, and operating a motor vehicle while under the influence of an intoxicant. A breathalyzer examination indicated that the defendant had a .20% blood alcohol content. After being indicted for the offenses, the defendant filed a motion in limine requesting an order disallowing evidence of the breath alcohol test for the purpose of seeking an enhanced sentence under Tennessee Code Annotated section 55-10-403(a)(1), which provides as follows:
Any person or persons violating the provisions of §§ 55- 10-401 - 55-10-404 shall, upon conviction thereof, for the first offense be fined not less than $350.00 nor more than $1,500.00, and such person or persons shall be confined in the county jail or workhouse for not less than 48 hours nor more than 11 months and 29 days; and the court shall prohibit such convicted person from driving a vehicle in the State of Tennessee for a period of one year. In addition to the other penalties set out for a first offense violation, if at the time of such offense the alcohol concentration in such person's blood or breath is 20/100 of 1% (.20%) or more, the minimum period of confinement for such person shall be seven consecutive calendar days rather than 48 hours. The provisions of this section constitute an enhanced sentence, not a new offense. . . .
The defendant argued that a 5% margin of error for the breathalyzer indicates a range of between .195% and .205% blood alcohol content as established by Lanny Wilder, Supervisor for the Tennessee Bureau of Investigation's Crime Laboratory in Nashville. The defendant contended that because there is a possibility that his blood alcohol content was actually less than .20%, the results should not be considered for enhanced sentencing purposes.
The trial court granted the motion in limine, holding "that in any trial or proceeding in this cause, the efendant's presumptive breath test of 0.20 percent will not implicate or trigger the seven (7) consecutive days penalty of Tenn. Code Ann. § 55-10-403(a)(1) in that the instrument deviation or tolerance level as a matter of law precludes the court from considering or from concluding beyond a reasonable doubt that the efendant has violated the statute." Thereafter, the trial court granted a motion by the state for an interlocutory appeal. See Tenn. R. App. P. 9. A panel of this court approved of the grant.
The defendant relies primarily on the opinion of the court in State v. Mark T. Scisney, No. 01C01-9605-CC-00209 (Tenn. Crim. App., at Nashville, Oct. 16, 1997). In Scisney, where a panel of this court considered a similar question, the defendant, a commercial trucker who had registered a .04% blood alcohol content in a breathalyzer examination, was found guilty of driving under the influence while operating a commercial motor vehicle in violation of Tennessee Code Annotated section 55-50-408. The applicable statute provided as follows:
For purposes of this chapter and § 55-10-401, any person who drives, operates or exercises physical control of a commercial motor vehicle with a blood alcohol concentration of poi
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