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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law DEPARTMENT OF SAFETY, Petitioner, vs. One 1997 Jeep Grand CherokeeLaredo VIN No. 1J4GZ58SOVC652043, Seized from: James Palmer, Date of Seizure: February 10, 2005, Claimant: James Palmer Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: DEPARTMENT OF SAFETY, Petitioner v. DOCKET NO: J (D.O.S. Case No. D9033) One 1997 Jeep Grand Cherokee Laredo VIN No. 1J4GZ58SOVC Seized from: James Palmer Date of Seizure: February 10, 2005 Claimant: James Palmer INITIAL ORDER The contested hearing of this matter was held on September 6, 2005, in Memphis, Tennessee, before Robert Fellman, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Safety. Joe Bartlett, Staff Attorney for the Department of Safety, represented the Department of Safety (the State). James Palmer, Claimant, represented himself. The issue was whether Claimant s vehicle should be forfeited for his second DUI violation. This Initial Order is due by December 5, After consideration of the record in this matter, it is determined that the subject vehicle should be returned to Claimant. This determination is based upon the following findings of fact and conclusions of law.

3 FINDINGS OF FACT 1. On February 10, 2005, at approximately 12:30 p.m., Trooper Brian Wright observed Claimant driving his 1997 Jeep Grand Cherokee Laredo. The vehicle crossed the fog line several times. 2. Trooper Brian Wright signaled for Claimant to pull over. As Claimant did so, Trooper Wright observed Claimant appear to lean back and place something behind him on the floorboard. An opened bottle of beer was later found in the back of the Jeep. 3. Trooper Wright asked Claimant to exit the Jeep. Trooper Wright smelled alcohol and asked Claimant for an explanation. Claimant stated that someone had spilled beer in the Jeep recently - either a friend or a mechanic. The trooper did not smell alcohol on the Claimant s breath, only on his person. 4. Trooper Wright administered several field sobriety tests on Claimant, all of which were videotaped and entered into evidence at the September 6, 2005, hearing as Exhibit The video tape was over 14 minutes long and had long segments of Claimant a few feet from the lens. The video shows that Claimant had no outward signs of impairment. He talked perfectly normal, with no slurred speech. He walked perfectly normal, with no signs of imbalance. He exhibited no mannerisms that indicated he was in any way impaired. 6. The video also shows that Claimant failed the field sobriety tests. He had trouble lifting his left leg and holding it out. He explained on tape that he was nervous as hell and uncoordinated. Claimant had trouble walking heel to toe, going only five steps instead of the required ten. At the September 6, 200, hearing, Trooper Wright testified that Claimant failed the sobriety tests requiring the Claimant to close his eyes, hold his arms out, tip his head back, and touch his nose, but the videotape does not clearly show Claimant s failures because Trooper 2

4 Wright s body was blocking the view of Claimant the video. Claimant testified he had no trouble touching his nose during the test. 7. Claimant had trouble following Trooper Wright s instructions, often starting to follow the trooper s instructions before being told to start, despite the trooper s telling Claimant not to start until told to do so. 8. After the trooper told Claimant that he was being arrested for D.U.I. and his Jeep was being confiscated, Claimant stated he wanted to take a breathalyzer test to show that he had not been drinking. 9. Trooper Wright told Claimant he was going to take Claimant for a blood test instead, which the trooper stated could take several months for the results. 10. Claimant asked several times more that he be given a breathalyzer test to prove his innocence right away. 11. The blood test administered on February 10, 2005, at 2:50 p.m., later showed that Claimant s blood alcohol level was zero, but it was positive for Diphenhydramine and Mirtazapine (less than.10 ug/ml) (sic). 12. Diphenhydramine is the generic name for Benadryl, an antihistamine, which lists as possible side effects drowsiness and dizziness. In relevant part, its Cautions include: DO NOT DRIVE, OPERATE MACHINERY. Using this medicine alone, with other medicines, or with alcohol may lessen your ability to drive or perform other potentially dangerous tasks. 13. Mirtazapine is an antidepressant which Cautions, in relevant part state: Tell your doctor if you take any medicines that cause drowsiness such as Diphenhydramine. This medicine may cause drowsiness. DO NOT DRIVE until you know how you react to this medicine. Possible side effects include drowsiness [or] dizziness. 3

5 14. At the September 6, 2005, hearing, Claimant testified to the following: (a) (b) (c) (d) He was not drunk when arrested and had not had a drink in over four months at the time. He took a liquid sleep aid pill, which he bought over the counter at Wal-Mart, the night before his February 10 arrest. He denied he has ever taken an antidepressant. He did not place an open can of beer behind him when stopped by the trooper. He was reaching back because a mat he had just bought at Wal-Mart had fallen and he was pushing it back to where he had placed it. He is not limber [which contributed to his failing his sobriety test]. 15. Trooper Wright testified that some people are impaired by Benadryl while others are not. He opined that Claimant was impaired by a combination of both drugs and alcohol. 16. Claimant has been convicted of Driving While Intoxicated in Tennessee on January 17, 1998, in Vermont on June, 17, 2000, and in Kentucky on February 2, CONCLUSIONS OF LAW AND ANALYSIS 1. T.C.A (k) states: (1) The vehicle used in the commission of a person s second or subsequent violation of [driving under the influence of an intoxicant], or the second or subsequent violation of any combination of , and a statute in any other state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, part 2. The department of safety is designated as the applicable agency, as defined by , for all forfeitures authorized by this subsection. (2) In order for the provisions of subdivision (k)(1) to be applicable to a vehicle, the violation making the vehicle subject to seizure and forfeiture must occur in Tennessee and at least one (1) of the previous violations must occur on or after January 1, 1997, and the second offense after January 1, 1997, occurs within five (5) years of the first offense occurring after January 1, T.C.A states, in relevant part: 4

6 (a) It is unlawful for any person to drive or to be in a physical control of any automobile or other motor driven vehicle while: (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or (2) The alcohol concentration in such person s blood or breath is eight-hundredths of one percent (.08%) or more. (b) For the purpose of this section, drug producing stimulating effects on the central nervous system includes the salts of barbituric acid, also known as malonyl urea, or any compound, derivatives, or mixtures thereof that may be used for producing hypnotic or somnifacient effects, and includes amphetamine, desoxyephedrine or compounds or mixtures thereof, including all derivatives of phenolethylamine or any of the salts thereof, except preparations intended for use in the nose and unfit for internal use. 3. The State argued at the September 6 hearing that Claimant was driving while impaired from alcohol and other drugs. But the law at issue here does not allow for a forfeiture merely because a claimant is driving while impaired. The law requires that impairment to be the result of any intoxicant, marijuana, narcotic, drug or drug producing stimulating effects on the central nervous system. 4. T.C.A defines narcotics as following: (16) Narcotic drug means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: (A) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate; (B) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in subdivision (16)(A), but not including the isoquinoline alkaloids of opium; (C) Opium poppy and poppy straw; and (D) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine. 5

7 5. Tennessee Code Annotated does not define intoxication. However, T.C.A (a) does define intoxicating liquors and drinks as follows: Intoxicating liquors or intoxicating drinks, as defined in this chapter, means and includes alcohol, spirits, liquors, wines and every liquid or solid, patented or not, containing alcohol, spirits, liquor or wine, and capable of being consumed by human beings; but nothing in this chapter shall be construed or defined as including or relating to the manufacturing of any beverage with alcohol content of five percent (5%) or less. 6. Merriam Webster s Collegiate Dictionary, Tenth Edition, defines intoxicant as something that intoxicates; esp: an alcoholic drink. It defines intoxicate as to excite or stupefy by alcohol or a drug esp. to the point where physical and mental control is markedly diminished. 7. Clearly, the two drugs here are not intoxicants as intoxicants are normally referred to - as alcohol. Even under a more general definition of intoxicants, Claimant was not intoxicated because his physical and mental control was not markedly diminished. He may have failed the field sobriety test, whether because he was uncoordinated, nervous, the part of the road he took the test on was uneven, or the traffic bothered him. mentally. 8. But the video tape showed he was not markedly diminished either physically or 9. Moreover, it is noted that if the law intended that intoxicant refer to drugs, and not just alcoholic beverages, it would seem that the language in T.C.A (a)(1) would have included (for example) drug producing an intoxicating effect. 10. While the State argued that Claimant had trouble following the trooper s instructions, what this Judge observed was Claimant nervously attempting to comply with the trooper s instructions too soon. Claimant would anticipate the trooper s instructions, as an 6

8 impaired individual would likely not be able to do. That Claimant would attempt to carry out instructions before being told to start is a common human reaction. It is the basis for the game Simon Says. 11. Thus, even if Claimant were driving while impaired because of the two drugs found in his system, forfeiture would not be allowed under the law. There was no evidence, by testimony or exhibit, to prove that Diphenhydramine or Mertazapine are intoxicants, narcotics, or drugs producing stimulating effects on the central nervous system (as defined in T.C.A (a)(2)(b) and T.C.A ). 12. The next issue is whether Claimant was intoxicated because he had been drinking alcoholic beverages. Certainly, there was circumstantial evidence to prove he was intoxicated: His vehicle was observed crossing the line; he smelled of alcohol; he failed the field sobriety tests; an open bottle of beer was found in the vehicle. 13. But the above circumstantial evidence (all which has an explanation other than alcohol, namely the two legal drugs found in his system) cannot overcome the State s own proof that Claimant registered 0% on the blood alcohol test administered by the State. This clear scientific proof that Claimant was not intoxicated by alcohol overcomes the circumstantial proof to the contrary, barring proof why this test could have been inaccurate or should be discounted. No such proof was introduced at the hearing. 14. Moreover, Claimant repeatedly asked Trooper Wright to immediately administer him a breathalyzer test to show the trooper that he was not intoxicated. This is extremely strong evidence, under the circumstances, that he was not intoxicated. Just as refusal to take a sobriety test is admissible as being probative on the issue of guilt (See State v. Smith, 681 S.W. 2d 569 (Tenn. Cr. App. 1984) and State v. Morgan 692 S.W. 2d 428 (Tenn. Cr. App. 1985)), in a 7

9 criminal case, Claimant s insistence on taking a breathalyzer test tends to prove that, in this civil hearing, more likely than not, he was not intoxicated. 15. To summarize, there was no proof, or even argument, that Claimant was under the influence of marijuana, a narcotic drug, or a drug producing stimulating effects on the central nervous system. The State s case boils down, therefore, to whether Claimant was under the influence of an intoxicant. 16. Claimant was not under the influence of alcohol. And even assuming intoxicant was intended by the legislators to refer to other substances, no testimony or exhibit at the hearing proved that the two drugs found in Claimant s system were intoxicants. Finally, even assuming the drugs were intoxicants, the proof did not show Claimant to be under their influence such that he was in violation of the law. 17. For these reasons, it is ordered that Claimant s vehicle be returned to him. This Initial Order entered and effective this 5th day of December, Robert Fellman Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 5th day of December, Charles C. Sullivan II, Director Administrative Procedures Division 8