# FILED July 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9703- CR-00086 ) Appellee, ) ) ) MONROE CO UNTY VS. ) ) HON. CARROLL ROSS RALPH TALLENT, ) JUDGE ) Appe llant. ) (DUI)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF MONROE COUNTY FOR THE APPELLANT : FOR THE APPELLEE : CHARLES L. BEACH JOHN KNOX WALKUP 365 Market Street Attorney Generaland Reporter Clinton, TN 37716 TIMOTHY F. BEHAN Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 JERRY N. ESTES Distri ct Attor ney General RICHARD NEWMAN Assistant Distri ct Attor ney General P.O. Box 647 Athens, TN 37303 OPINION FILED ________________________ APPEAL DISMI SSED JERRY L . SMI TH, J UDGE-2- 

# OPINION A Monroe County grand jury indicted Appellant, Ralph Tallent, with charges of Dr iving Under the Influence. Appellant fil ed a motion to suppress admissi on of th e breath test. After a he aring, A ppellant’s motion was deni ed. Appellant then filed a motion in limine to require the State to lay anappropriate foundation through the testing officer before admitting the res ults of the breath tests. Appell ant then pled guilty pursuant to Rule 37 (b)(2) (i) of the Tennessee Rules of Cri minal Procedure. After a review of the rec ord, we find that this appeal must be dismissed.
In Sta t e v. Preston , the Tennessee Supreme Court set out the perquisites for consideration on the merits of a certified question of law pursuant to Rule 37(b)(2)(i).
1. The final order or judgment must contain statement of the dispositiv e question of law rese rved by def endant f or appell ate review;
2. The order must s tate that the certified questi on was expressly reserved as part of a plea agreement;
3. The order must state that both the s tate and the trial judge have con sented to the reservationand are of the opin ion that the quest ion is disp ositive of the case; and
4. The question of law must be st ated so asto clearly identify the scope and the limits of the legal issue s reserved.1 It appears f rom the record that Appellant

conceded in the

trial court that

the State had evidence of his gui lt ot her than the results of the breath alcohol t

est. It is highl y questi onable ther

efore whether the issue presented herein can f airly be characteri zed as dispositive of this case. -3- State v. Preston , 759 S.W.2d 647, 65 0 (Tenn. 1988) ( Accord S tate v. Har ris , 919 S.W.2d 619 (Tenn. Crim. App. 1995); State v. Pendergrass , 937 S. W.2d 834 (Tenn. 1996)). In attempting to reserve a question of l aw, Defendant failed to properly follow the procedure a s set ou t in Preston . The judgment of the trial court reflects that Defendant plead guilty

subject to a Rule 37(b) appeal, but fails to set out the question as required under part (i) of the Preston procedure. Further, the or der does not

contain any indication by either the trial court or the State that the q uestion raised by Defendant is dispositive of this matter. 1
A ccording ly, this appeal is dismissed pursuant to Rule 20 of the Court o f Criminal Appeals Rules.

____________________________________ JERRY L . SMI TH, J UDGE
CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE

___________________________________ WILLI AM B. A CREE, JUDGE