State v. Tester

Citation879 S.W.2d 823
PartiesSTATE of Tennessee, Appellant, v. Paul Douglas TESTER, Appellee.
Decision Date20 June 1994
CourtSupreme Court of Tennessee

Page 823

879 S.W.2d 823
STATE of Tennessee, Appellant,
v.
Paul Douglas TESTER, Appellee.
Supreme Court of Tennessee,
at Knoxville.
June 20, 1994.

Charles W. Burson, Atty. Gen. and Reporter, and Kimbra R. Spann, Asst. Atty. Gen., Nashville, for appellant.

James S. Roach, Johnson City, for appellee.

OPINION

ANDERSON, Justice.

In this direct appeal, we are asked to determine the constitutionality of a general law 1 with limited application which allows persons convicted of second offense driving under the influence of a drug or intoxicant to serve the mandatory 45-day jail sentence in a work release program. It applies only to three counties--Davidson and Moore, because they have metropolitan governments, and Shelby, because of its population classification. In all other counties in the State, the law requires that second-time DUI offenders serve a minimum mandatory jail sentence of 45 days.

The Washington County trial court found that part of the statute limiting its applicability to three counties unconstitutional under the equal protection guarantees of the United States and Tennessee Constitutions. The trial court, however, elided the unconstitutional portion, held the remainder of the statute constitutional and applied it in this Washington County case, sentencing the defendant to serve his 50-day sentence in a work release program rather than jail. The effect of the trial court's action is to apply the remainder of the statute to all 95 counties.

Page 826

Because no rational basis exists for limiting the application of the statute to three counties--Shelby, Davidson, and Moore--we hold the entire statute is unconstitutional. The result of this holding is to affirm the trial court judgment finding the classification unconstitutional under the equal protection guarantees of the state and federal constitution, but to reverse the trial court's judgment which applied the doctrine of elision and upheld the remaining provisions of the statute as constitutional. We hold the doctrine of elision does not apply because we cannot conclude, clear of doubt, from the face of the statute that the Legislature would have enacted the statute without the provision limiting its applicability. Accordingly, we conclude the entire work release statute, Tenn.Code Ann. § 41-2-128(c), is unconstitutional.

BACKGROUND

The defendant, Paul Tester, was indicted by the Washington County Grand Jury for second offense DUI. Tester responded by challenging the constitutionality of Tenn.Code Ann. § 41-2-128(c)(9), which limits application of the DUI second offense work release statute to counties with a population of more than 700,000 and counties with a metropolitan form of government, which includes only Shelby, Davidson, and Moore Counties.

The penalty statute applicable generally to persons convicted of second offense DUI provides, in pertinent part:

(a)(1) ... For conviction on the second offense, there shall be imposed a fine ... and the person or persons shall be confined in the county jail or workhouse for not less than forty-five (45) days nor more than eleven (11) months and twenty-nine (29) days....

....

(b)(1) No person charged with violating the provisions of §§ 55-10-401--55-10-404 shall be eligible for suspension of prosecution and dismissal of charges pursuant to the provisions of §§ 40-15-102--40-15-105 and 40-32-101(a)(3)-(c)(3) or for any other pretrial diversion program, nor shall any person convicted under such sections be eligible for suspension of sentence or probation pursuant to § 40-21-101 [repealed] or any other provision of law authorizing suspension of sentence or probation until such time as such person has fully served day for day at least the minimum sentence provided by law.

Tenn.Code Ann. § 55-10-403(a)(1) and (b)(1) (1993) (emphasis added). Accordingly, a second offense DUI offender must serve a minimum jail sentence of 45 days, day for day, before probation or suspension may be considered.

In direct conflict with the penalty statute set out above is the challenged statute, which allows work release for qualified DUI second offenders, and provides in part as follows:

(c)(1) Notwithstanding the provisions of this section, § 55-10-403(a)(1) or § 55-50-504(a)(2) to the contrary, the judge may sentence persons convicted of a second violation of § 55-10-401 or § 55-50-504(a)(2), to the work release program established pursuant to this section if, prior to doing so, the following conditions have been met:

....

(9) The provisions of this subsection only apply to counties having a population of more than seven hundred thousand (700,000) according to the 1980 federal census or any subsequent federal census or to counties having a metropolitan form of government.

Tenn.Code Ann. § 41-2-128(c)(1) & (9) (1990 & Supp.1993) (emphasis added).

Tester pled guilty to second offense DUI. Under the plea agreement, Tester was to be sentenced to jail for 50 days, subject to the trial judge considering work release at sentencing should the work release statute be held constitutionally applicable in Washington County.

Page 827

At the sentencing hearing where the constitutionality of the work release statute was an issue, the evidence established that Tester met all the conditions for eligibility to serve his sentence on work release, except he had not been convicted in either Shelby, Davidson, or Moore County. Tapes of the legislative discussion before a state Senate committee reflected that the work release program was intended to be a pilot project in Shelby County aimed at alleviating jail overcrowding caused by imposing minimum mandatory jail sentences upon second time DUI offenders. The record also contained two Orders from the U.S. District Court for the Eastern District of Tennessee, dated September 17, 1991 and January 14, 1993, which concluded that imposing mandatory jail terms on second time DUI offenders had resulted in unconstitutional overcrowding of the Washington County jail. County officials were ordered to take steps to alleviate the overcrowding, first to reduce the number of prisoners and finally, to construct a new jail.

After considering the evidence, the trial court found that the provision limiting applicability of the work release statute to only three counties in the State was unconstitutional in that it violated the equal protection clauses of the United States and Tennessee Constitutions. The trial court accepted the plea agreement, but ruled that the defendant could serve his 50-day sentence in a work release program in Washington County. The ruling elided the unconstitutional limiting provision and thus afforded statewide application to the remainder of the work release statute.

EQUAL PROTECTION

The State, in this appeal, contends that the trial court erred in finding the limiting provision of the statute unconstitutional. Assuming, however, that the limiting provision is unconstitutional, the State's fall-back position is that the trial court erred in applying elision and upholding the remainder of the statute. We begin our analysis by examining the grounds upon which the trial court held the limiting provision of the statute unconstitutional.

Equal protection of the laws is guaranteed by both the United States and Tennessee Constitutions. Section 1 of the Fourteenth Amendment to the United States Constitution provides:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis added.)

Two provisions of the Tennessee Constitution, though applicable to different circumstances, encompass the equal protection guarantee....

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