IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL SESSION, 1997 December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CR-00378
)
Appellee, )
)
) HAMILTON COUNTY
VS. )
) HON. GARY D. GERBITZ
DONNIE LAMAR CARDEN, ) JUDGE
)
Appe llant. ) (Certified Question of Law)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN G. MCDOUGAL JOHN KNOX WALKUP
701 Broad Street, Tivoli Center Attorney General and Reporter
Suite One LL
Chattanooga, TN 37402 MICH AEL J . FAHE Y, II
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
BILL COX
District Attorney General
JOHN BOBO
Assistant District Attorney
Courts Building
Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED PURSU ANT TO RU LE 20
JERRY L. SMITH, JUDGE
OPINION
A Hamilton County grand jury indicted Appellant, Donnie Carden, with charges
of Driving Under the Influence and Possession of Marijuana. Appellant filed a motion
to dismiss based upon his contention that prosecution of these charges was barred by
double jeopardy. After a hearing, Appellant’s motion was denied. Appellant pled guilty
to D.U.I. - 3rd offense and Possession of Marijuana, but reserved the right to appeal
based on a certified question of law. Appellant raises the issue whether the policy of
the Hamilton County jail of holding someone in custody for a period of six hours to
“sober” them up is punitive in nature and whether the Fifth Amendment protection
against double jeopardy barred subsequent prosecution of Appellant on the charges
for which he was arrested after confinement under this policy .
After a review of the record, we affirm the judgment of the trial court pursuant to
Court of Criminal Appeals Rule 20.
Hamilton County law enforcement arrested Appellant on November 4, 1995, for
driving under the influence, possession of marijuana, and for possession of drug
paraphernalia. Appellant refused to submit to a breath alcohol test and was
incarcerated in the Hamilton County jail. Appellant was held in custody for nine and one
half hours before being released on bail into his father’s custody.
The Hamilton County jail has a policy requiring that anyone arrested for Driving
Under the Influence must be detained in that facility for at least six hours. The county
sheriff testified that this policy is based upon public safety considerations. In Appellant’s
case, Appellant’s father posted bond for Appellant approximately five hours before
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Appellant was released. After the denial of Appellant’s motion to dismiss, Appellant
pled guilty while reserving this question of law.
With respect to Appellant’s double jeopardy issue, Appellant relies upon this
Court’s decision in State v. Pennington, C.C.A. No. 0101-937-PB-00219, Davidson
County (Tenn. Crim. App. , Nashville, Feb.1, 1996) to support his contention that
detention pursuant to a policy of detaining arrestees after arrest for D.U.I. makes
subsequent prosecution for D.U.I. violative of double jeopardy. However, the Supreme
Court recently released State v. Pennington, S.Ct. No. 01-S-01-9607-PB-00133,
Davidson County (Tenn., Sept. 8, 1997) overturning this Court’s decision in that matter.
In that opinion, the Supreme Court specifically held that detention policies such as the
one at issue in this case do not invoke the protections of double jeopardy.
In this 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.”
Pennington, Id..
Accordingly, we affirm the trial court’s judgment pursuant to Court of Criminal
Appeals Rule 20.
____________________________________
JERRY L. SMITH, JUDGE
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CONCUR:
___________________________________
JOE G. RILEY, JUDGE
___________________________________
CHRIS CRAFT, SPECIAL JUDGE
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