State of Tennessee v. Michael A. Drake

The appellant, Michael A. Drake, was indicted on two counts of vehicular homicide and two counts of aggravated vehicular homicide. A jury found the appellant guilty of two counts of vehicular homicide by intoxication. In the second phase of the trial, the jury found the appellant guilty of two counts of aggravated vehicular homicide based on one prior DUI conviction and a blood alcohol level of .20 or more at the time of the present offense. On appeal, the appellant challenges the sufficiency of the indictment by arguing that it only gave notice that the State sought to convict him of aggravated vehicular homicide based on two prior DUI offenses. We determine that the indictment is misleading and deprives the appellant of adequate notice of the charges against him in violation of the 6th amendment to the United States Constitution and Article 1, section 9 of the Tennessee Constitution. The indictment indicated that the State sought the aggravated vehicular homicide convictions solely on the basis of the appellant's two prior DUI convictions pursuant to Tennessee Code annotated section 39-13-218(1)(a), rather than one prior DUI and a blood alcohol of .20 or more at the time of the offense, pursuant to Tennessee Code Annotated section 39-13-218(3). Thus, we are forced to dismiss the aggravated vehicular homicide conviction, modify the conviction to vehicular homicide under Tennessee Code Annotated section 39-13-213 and remand the case for resentencing.