Monday, March 7, 2011

DUI and DUI Per Se Convictions for Single Incident Must Merge Says TN Supreme Court

The Tennessee Supreme Court finds in Cooper that two judgments of conviction are not permissible for DUI and DUI per se (.08 or higher BAC) in a single indictment alleging a single act. 

Previously, the court notes in State v. Conway, 77 S.W.3d 213 (Tenn. Crim.App. 2001), the Court of Criminal Appeals held that double jeopardy precludes two separate judgments of conviction for DUI and DUI per se if they are based upon a single episode. 

While both counts of DUI can be acted upon by a jury without the requirement of an election, if the jury returns verdicts of guilty for both counts, the trial court should merge the two convictions into one judgment of conviction for DUI.

The court followed State v. Cribbs, 967 S.W.2d 773, 787-88 (Tenn. 1998) holding that, although a defendant cannot have separate judgments of conviction for both premeditated murder and felony murder for a single act of murder, both counts should be submitted to the jury and later merged into one judgment of conviction.

So, the reasoning goes, two judgments of conviction for DUI should be merged into a single conviction of DUI if they are based on a single episode or act.

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