I N T H E S U P R E M E C O U R T O F T E N N E S S E E
A T N A S H V I L L E
S T A T E O F T E N N E S S E E ) F O R P U B L I C A T I O N
)
A p p e l l a n t ) F I L E D : S E P T E M B E R 8 , 1 9 9 7
)
v . ) D A V I D S O N C O U N T Y
)
J E F F E R S O N C . P E N N I N G T O N ) H O N . J A M E S R . E V E R E T T , J U D G E
)
A p p e l l e e ) N O . 0 1 - S - 0 1 - 9 6 0 7 - P B - 0 0 1 3 3
F o r A p p e l l e e : F o r A p p e l l a n t :
J . B R Y A N L E W I S J O H N K N O X W A L K U P
P H I L L I P A . P U R C E L L A t t o r n e y G e n e r a l a n d R e p o r t e r
N a s h v i l l e , T N
M I C H A E L E . M O O R E
S o l i c i t o r G e n e r a l
FILED D A R Y L J . B R A N D
A s s i s t a n t A t t o r n e y
N a s h v i l l e , T N
G e n e r a l
September 8, 1997
V I C T O R S . J O H N S O N , I I I
Cecil W. Crowson D i s t r i c t A t t o r n e y G e n e r a l
Appellate Court Clerk
J A M E S W . M I L A M
A s s i s t a n t D i s t r i c t A t t o r n e y
G e n e r a l
N a s h v i l l e , T N
O P I N I O N
J U D G M E N T R E V E R S E D ,
I N D I C T M E N T S R E I N S T A T E D ,
A N D C A U S E R E M A N D E D . B I R C H , J .
2
We review this cause to determine whether detention
immediately after arrest, purposely continued because of the
accused’s refusal to submit to a breathalyzer test, constitutes
punishment that prevents, under double jeopardy principles,
punishment upon conviction. Because we find that jeopardy did not
attach to the proceedings before the judicial commissioner and
because the detention, even if punitive, did not constitute
punishment for the charged offenses, we find no double jeopardy
violation. Accordingly, the judgment of the Court of Criminal
Appeals is reversed, the indictments are reinstated, and the cause
is remanded to the trial court for further proceedings.
I
Jefferson C. Pennington, the appellee, was arrested in
Metropolitan-Nashville Davidson County and charged with driving
while under the influence of an intoxicant1 and driving on a
suspended or revoked license.2 Because he refused to submit to a
breathalyzer test,3 Pennington was not permitted to arrange his
release immediately. Consequently, he remained in custody for
approximately eleven hours. Pennington was subsequently indicted
on both offenses.
1
Tenn. Code Ann. § 55-10-401.
2
Tenn. Code Ann. § 55-50-504.
3
According to Pennington, he refused to submit to a breath-
alcohol test but was willing to have a blood sample taken.
3
Pennington filed a motion to dismiss the indictments in
which he contested the policy established by the Metropolitan
Nashville-Davidson County general sessions judges and judicial
commissioners4 whereby persons charged with driving while
intoxicated were detained in custody for twelve hours (more or
less) upon their refusal to submit to a breath-alcohol test. The
existence of this policy was stipulated; stipulated also was that
the policy served to promote public safety.5
In granting the motion to dismiss, the trial judge
stated:
The problem you have, General, is
that a punishment has been imposed
on a defendant without there being
an adjudication of guilt. They just
said everybody that comes in here
and meets this classification is
going to get 12 hours, period. That
is a bad policy; therefore the Court
will grant Mr. Ray’s motion.
The intermediate court, in affirming the judgment of the
trial court, concluded that detention based on the stipulated
policy constituted punishment for the offenses charged. Further
4
Judicial commissioners are appointed by the general sessions
judges of the county and are authorized to issue arrest warrants,
search warrants, and set or deny bond. See Tenn. Code Ann. § 40-5-
201 et seq. An § 40-5-101 et seq.
5
In his brief to this Court, the defendant attempts to argue
that this proffered rationale for the detention was a pretext and
that he was actually detained as punishment for the charged
offenses. However, the stipulation was offered by the State’s
attorney in open court, and defendant’s counsel consented.
Therefore, the defendant’s subsequent contention that the policy
was a pretext is simply of no consequence.
4
punishment, the court held, would violate double jeopardy
principles. We granted the State’s application for Rule 11 review.
II
The double jeopardy clause of the Fifth Amendment to the
United States Constitution, applicable to the states through the
Fourteenth Amendment, provides that no person shall “be subject for
the same offense to be twice put in jeopardy of life or limb
. . . .” Article 1, § 10 of the Tennessee Constitution provides
that “no person shall, for the same offence, be twice put in
jeopardy of life or limb.”
The purpose of the constitutional protection against
double jeopardy was aptly expressed by the United States Supreme
Court:
The underlying idea, one that is
deeply ingrained in at least the
Anglo-American system of
jurisprudence, is that the State
with all its resources and power
should not be allowed to make
repeated attempts to convict an
individual for an alleged offense,
thereby subjecting him to
embarrassment, expense and ordeal
and compelling him to live in a
continuing state of anxiety and
insecurity, as well as enhancing the
possibility that even though
innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-188, 78 S. Ct. 221, 223,
2 L. Ed.2d 199 (1957). Jeopardy in this sense refers to the risk
“traditionally associated with ‘actions intended to authorize
5
criminal punishment to vindicate public justice.’” Breed v. Jones,
421 U.S. 519, 529, 95 S. Ct. 1779, 1786, 44 L. Ed.2d 346 (1975)
(quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-
549, 63 S. Ct. 379, 388, 87 L. Ed.2d 443 (1943).
In context, double jeopardy violations arise only when an
individual is twice placed in jeopardy for the same offense.
Customarily, in jury proceedings, jeopardy attaches when the jury
is sworn, and in nonjury proceedings, jeopardy attaches when the
first witness testifies. Crist v. Bretz, 437 U.S. 28, 35, 98 S.
Ct. 2156, 2160, 57 L. Ed.2d 24 (1978); Serfass v. United States,
420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed.2d 265 (1975). A defendant
must be put in jeopardy at least once, “for only if that point has
once been reached does any subsequent prosecution of the defendant
bring the guarantee against double jeopardy even potentially into
play.” Crist, 437 U.S. at 32-33, 98 S. Ct. at 2159.
It is well established that jeopardy does not attach in
preliminary pretrial proceedings. See United States ex rel. Rutz
v. Levy, 268 U.S. 390, 45 S. Ct. 516, 69 L. Ed. 1010 (1925);
Collins v. Loisel, 262 U.S. 426, 43 S. Ct. 618, 67 L. Ed. 1062
(1923). Rather, to be put in jeopardy, the defendant must be
“subject to ‘criminal prosecution’ and put to trial.” United
States v. Grisanti, 4 F.3d 173, 175 (2nd Cir. 1993). The
proceeding must be “essentially criminal” and constitute an action
“intended to authorize criminal punishment to vindicate public
justice.” Id. (citing Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct.
1779, 1785, 44 L. Ed.2d 346 (1975), and United States ex rel Marcus
6
v. Hess, 317 U.S. 537, 548-49, 63 S. Ct. 379, 386, 87 L. Ed.2d 443
(1943)).
In Grisanti, after a hearing, the defendant’s bail was
revoked. Subsequently, he was indicted for the same conduct that
was the basis for the bail revocation. The defendant contended
that double jeopardy barred the indictment because he had already
been put in jeopardy for the indicted offense. Rejecting his
contention, the Court of Appeals held that the bail revocation
hearing was not essentially criminal and his subsequent detention
served a “regulatory function rather than a criminal one.” Id.
In the instant case, the parties stipulated that one of
the purposes of the detention policy was to keep suspected drunk
drivers off the road for a period of time after their arrest. In
other words, the policy was intended, at least in part, to protect
the public from individuals who had been arrested on suspicion of
driving under the influence. This is a remedial purpose, not a
punitive one, and therefore, the defendant’s initial appearance
before the judicial commissioner does not constitute an essentially
criminal proceeding brought to “vindicate public justice.”
Finally, assuming solely for the sake of argument that
jeopardy did attach at Pennington’s initial appearance and that the
detention could be construed as punishment, the punishment was for
refusing to submit to the breathalyzer test--not for the offenses
for which Pennington was later indicted. Under our analysis in
State v. Denton 938 S.W.2d 373, 381 (Tenn. 1996), refusal to submit
7
to a test to determine blood-alcohol content, Tenn. Code Ann. § 55-
10-406(a)(3), is not the same offense as driving under the
influence, Tenn. Code Ann. § 55-10-401, or driving on a suspended
or revoked license, Tenn. Code Ann. § 55-50-504. The elements of
the offenses are distinct from one another; the same evidence would
not be used to prove the offenses; and the statutes serve different
purposes.
A policy of detaining suspected drunk drivers for
refusing to submit to a test to determine blood-alcohol content
may, if punitive, implicate certain constitutional protections, but
the double jeopardy clause is not one of them. To punish an
individual without a prior adjudication of guilt is a violation of
due process. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 186,
83 S. Ct. 554, 576, 9 L. Ed.2d 644 (1963)(“[P]unishment cannot be
imposed ‘without due process of law.’ Any lesser holding would
ignore the constitutional mandate upon which our essential
liberties depend.”). Pre-trial detention that is remedial as
distinguished from punitive is permissible provided that the
individual is afforded sufficient procedural due process. United
States v. Salerno, 481 U.S. 739, 751, 107 S. Ct. 2095, 2103, 95 L.
Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253, 264, 104 S. Ct.
2403, 2409, 81 L. Ed.2d 207 (1984); Bell v. Wolfish, 441 U.S. 520,
536, 99 S. Ct. 1861, 1872-73 60 L. Ed.2d 447 (1979).
In sum, the post-arrest detention of the defendant does
not bar the State’s subsequent prosecution of him for the offenses
charged in the indictment. The judgment of the Court of Criminal
Appeals is reversed; the indictments against the defendant are
reinstated; and this cause is remanded to the trial court for
8
further proceedings. Costs of this cause are taxed to the appellee
for which execution may issue if necessary.
____________________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.
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