State of Tennessee v. Danny Munson - Concurring

I concur with the result reached by the majority and consider this case distinguishable from Scisney. In Scisney, Judge Tipton and I, in separate opinions, concluded an intoximeter reading of .04%, by itself, was insufficient to establish “beyond a reasonable doubt” that the blood alcohol concentration was, in fact, .04%. See State v. Mark T. Scisney, C.C.A. No. 01C01-9605-CC-00209, 1997 WL 634515, at *9-11 (Tenn. Crim. App. Oct. 16, 1997, at Nashville). This was because there was a 25% chance that the actual level was below .04% due to the margin of error. Id.