T.P.I. CRIM. 38.09(a)

ADULT DRIVING WHILE IMPAIRED – OVER 21

            Any person who is 21 years of age or older who drives or is in physical control of 

a motor vehicle while impaired is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven

beyond a reasonable doubt the existence of the following essential elements:1

(1)               that the defendant was driving or in physical control of a [motor vehicle];

and

(2)               the defendant’s ability to safely operate the vehicle was impaired as the

proximate result of the consumption or ingestion of alcohol, drugs, any

other intoxicant or any combination thereof;

[Evidence that at the time there was eight-hundredths of one percent

 (.08%) or more but less than ten-hundredths of one percent (.10%) by

weight of alcohol in the defendant’s blood  creates an inference2 that

the defendant’s ability to safely operate a motor vehicle was sufficiently

impaired by such alcohol to constitute a violation;]3         

and

        (3)          the defendant was twenty-one (21) years of age or older.

            The term “proximate result” means a result, which in natural and continuous

 sequence, is a product of an act occurring or concurring with another, which had it not

happened, the result would not have occurred.


FOOTNOTES

1.        Tenn. Code Ann. § 55-10-418(a).

2.         Tenn. Code Ann. § 55-10-418 (as amended by Public Acts of 1998, Chapter 1046, effective date July 1, 1998).  The statutory language “shall create a presumption” that the defendant was under the influence creates an unconstitutional mandatory presumption in the Committee’s opinion and should be phrased as a permitted inference.

3.         See TPI Criminal 38.05 (a).

COMMENTS


            1.         A person’s first conviction for adult driving while impaired is a Class B misdemeanor punishable only by a mandatory fine of five hundred dollars ($500.00).  Tenn. Code Ann. § 55-10-418(d)(1).  Pursuant to Tenn. Code Ann § 55-10-418(e), the provisions of subsection (d)(1) shall only apply to a person who violated the provisions of this section for a first time and who does not have a prior conviction for an alcohol-related offense.

            2.         At the time of sentencing a person for a first conviction for adult driving while impaired, the defendant shall be advised both orally and in writing that the penalty for a second or subsequent violation of this section is by law substantially enhanced and will be the same in all respects as the penalty for a second or subsequent conviction for driving under the influence of an intoxicant.  Provided, however, all adverse consequences resulting from a conviction for violating this section shall be applicable and remain in effect regardless of whether the person is advised orally or in writing of the penalties for second or subsequent violations.  Such consequences shall include counting any such conviction as a prior conviction for the purpose of imposing enhanced punishment for subsequent convictions.  Tenn. Code Ann. § 55-10-418(d)(2).

            3.         A person’s second or third conviction for adult driving while impaired is a Class A misdemeanor and shall be punished in all respects the same as is provided in Tenn. Code Ann. § 55-10-403 for a second or third conviction for driving under the influence of an intoxicant.

4.                  A person’s fourth or subsequent conviction for adult driving while impaired

is a Class E felony and shall be punished in all respects the same as is provided in Tenn. Code Ann. § 55-10-403 for a fourth or subsequent conviction for driving under the influence of an intoxicant.  (Tenn. Code Ann. § 55-10-418§ (d)(3)(A) and (B).

5.                  There is no pretrial diversion  (Tenn. Code Ann. § 55-10-418(g)(1))

or expungement under this section (Tenn. Code Ann. § 55-10-418(g)(2)).