State v. Vasser

• Citation: 870 S.W.2d 543
• Parties: STATE of Tennessee, Appellee, v. Reed VASSER, Jr., Appellant.
• Decision Date: 19 August 1993
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 543

870 S.W.2d 543

STATE of Tennessee, Appellee, v. Reed VASSER, Jr., Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

Aug. 19, 1993.

No Permission to Appeal Applied

for to the Supreme Court.

James C. McSween, III, Fred L. Myers, Jr., Newport, for appellant.

Charles W. Burson, Atty. Gen. of Tennessee, and Jeannie Kaess, Asst. Atty. Gen. of Tennessee, Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevierville, James L. Gass, Asst. Dist. Atty. Gen., Newport, for appellee.

OPINION

TIPTON, Judge.

The defendant, Reed Vasser, Jr., appeals as of right from his conviction for driving under the influence of an intoxicant (DUI) and sentence imposed by the Jefferson County Circuit Court. He received the minimum sentence allowed by law, including forty-eight hours in jail and a two hundred fifty dollar fine. He contends (1) that the evidence was insufficient to show that he was driving a motor vehicle as defined by T.C.A. § 55-1-103(d), (2) that the trial court should not have found him guilty beyond a reasonable doubt solely upon the police officer's testimony, and (3) that the trial court erred in denying him judicial diversion after he served forty-eight hours in jail. We hold that the evidence was sufficient and that the trial court properly refused to grant the defendant judicial diversion.

Wesley Ballew, a Jefferson County Sheriff's Deputy, testified that on June 30, 1991, he saw a van travelling down a road at a high rate of speed and weaving from side to side. He turned on his blue lights and signaled for the van to pull over. The van sped away and ultimately turned into a driveway. Deputy Ballew stated that the defendant got out and staggered back to the patrol car.

Deputy Ballew testified that he smelled a strong odor of an alcoholic beverage on the defendant. He said he asked the defendant to perform a field sobriety test and that after attempting the test, the man admitted that he was too drunk to complete the test, telling Deputy Ballew to take him to jail. He stated that the defendant then laid on the ground and started hollering and complaining about his back. An ambulance was called and the defendant was taken to a hospital. Subsequently the defendant was taken to jail. He refused to take a breath test.

The defendant testified that he was driving a three-quarter ton van toward his house when he realized that he was being followed by a patrol car with lights flashing. He said he pulled into his driveway and walked back toward the patrol car as the deputy walked forward to meet him. The deputy accused him of not stopping, accused him of being intoxicated and arrested him for DUI and failure to yield to the patrol car's flashing lights. The defendant denied having anything to drink. He said that the deputy did not ask him to take a field sobriety test and he denied telling the deputy he was too drunk to take the test.

The defendant testified that the deputy handcuffed him, but the handcuffs hurt his wrists. He said he fell out of the patrol car onto the ground. He said he told the deputy that he was in pain and asked the deputy to call an ambulance. The defendant stated that he got into the ambulance, but he said he did not remember anything else. He said when he woke up, he was in the hospital. The defendant said that he was confused and he did not remember a nurse taking a blood sample from him. The trial court found the defendant guilty of DUI.

The defendant contends that the state failed to prove that the defendant was driving the type of vehicle which would bring into play the DUI statutes. He relies upon T.C.A. § 55-1-103(d) which defines motor vehicle to mean "every vehicle which is self-propelled, excluding motorized bicycles and every vehicle which is not propelled by electric power obtained from overhead trolley wires." Basing his contention upon a grammatical reading of the statute, the defendant contends that every vehicle which is not propelled by electric power obtained from overhead trolley wires is excluded from the definition of motor vehicle. However, we need not seek to determine the legislative intent for this apparently inartfully drawn provision, although we can presume that the legislature did not intend the absurdity resulting from the defendant's interpretation. See, e.g., State v. Harrison, 692 S.W.2d 29, 31 (Tenn.Crim.App.1985).

T.C.A. § 55-10-401(a) prohibits driving "any automobile or other motor driven vehicle" while under the influence of any intoxicant. The evidence submitted by the defendant reflects that he was driving a four-wheel, Ford utility van. The defendant does not contend that he was not driving a motor driven vehicle as expressly provided by the above statute. Also, the definition of motor vehicle upon which the defendant relies applies to chapters one through six of Title 55 and not chapter ten, in which the DUI statutes appear. See T.C.A. § 55-1-102 (the meanings provided in chapter one are for the purpose of chapters one through six of Title 55). The DUI statutes cover the defendant's driving of the van.

As to the trial court's reliance upon Deputy Ballew's testimony, the defendant simply argues that the state should be required to prove its case by more than the deputy's testimony. Clearly no such requirement exists in the law. There is no merit to this issue.

Finally, the defendant contends that he was entitled to judicial diversion after serving forty-eight hours in jail as required by law. The trial court stated that the defendant was an excellent candidate for a "deferral of prosecution" pursuant to T.C.A. § 40-35-313, but ruled that it had no authority to grant the relief requested. T.C.A. § 40-35-313, commonly called the judicial diversion statute, provides in part as follows:

(a)(1) If any person who has not previously been convicted of a felony or a Class A misdemeanor is found guilty or pleads guilty to a misdemeanor which is punishable by imprisonment or a Class C, D or E felony, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require and for a period of time not less than the period of the maximum sentence for the misdemeanor with which he is charged, or not more than the period of the maximum sentence of the felony with which he is charged....

In pertinent part, the remaining provisions of T.C.A. § 40-35-313 entitle a defendant who successfully complies with the conditions of probation to a dismissal of the charge and proceedings against him and to expungement of all public, official records relating to the case.

It is readily apparent that T.C.A. § 40-35-313 contains no exception to its application to all misdemeanors, including DUI. The state defends the trial court's ruling by referring to the Sentencing Commission Comments to T.C.A. § 40-35-313, which at the time of the offense, stated that the statute applied to "all misdemeanors except for convictions for driving under the influence," citing T.C.A. § 55-10-403(b)(1). Initially, we note that the Sentencing Commission Comments were not enacted by the legislature and they do not have the force of law. Obviously, a commission charged with the responsibility of drafting legislation may, through its comments, greatly assist in understanding the purpose and the meaning of proposed legislation and if the legislature was provided such comments in its consideration of the proposed legislation, the comments could lend weight in determining legislative intent. See, e.g., Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521, 277 N.Y.S.2d 268, 223 N.E.2d 793 (N.Y.1966), cert. denied, 389 U.S. 820, 88 S.Ct. 41, 19 L.Ed.2d 72 (1967). However, aside from the fact that it is not clear that the comments to T.C.A. § 40-35-313 were provided to the legislature, the comments should not be used to circumvent the plain meaning of the statutory language. Therefore, given the all inclusive language of T.C.A. § 40-35-313, the resolution of the issue of its application to DUI cases involves reviewing it in conjunction with the DUI law.

The DUI penalty provision enacted as T.C.A. § 55-10-403(b)(1) (Supp.1992) provides:

No person charged with violating the provisions of §§ 55-10-401--55-10-404 [DUI] shall be eligible for suspension of prosecution and dismissal of charges pursuant to the provisions of §§ 40-15-102--40-15-105 [pretrial diversion] and 40-32-101(a)(3)--(c)(3) [destruction of criminal records] 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 probation provision] 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.

(bracketed explanation added). This means that the defendant was not eligible for pretrial diversion and upon conviction for his first DUI offense was not eligible to have the minimum sentence of forty-eight hours in jail suspended. Also, he was not eligible for probation for that minimum sentence.

The issue in this case is ultimately resolved by a determination of whether or not T.C.A. § 55-10-403(b)(1) prohibits the application of T.C.A. § 40-35-313 in DUI cases. We conclude that it does based upon our interpretation of the DUI penalty provision's requirement that a "convicted" person must serve the minimum "sentence," and our determination that the trial court's withholding of a judgment of guilt under judicial diversion would prohibit imposition of any DUI sentence and prevent the application of both statutes in the fashion suggested by the defendant.

In a general sense, a "conviction" has been defined as "the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged." Black's Law Dictionary 333 (6th...