# FILED
September 26, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE AUGUST 1997 SESSION
STATE OF TENNESSEE, * * Appellee, * VS. * * MIKI EDW ARD GOLDEN, * * Appellant. *

* C.C.A. # 03C0 1-9610-CC- 00374

ANDERSON COUNTY Hon. James B. Scott, Jr., Jud ge (Violation of Implied Consent)

For Appellant : Michael W. Ritter 131 East TyroneRoad Oak Ridge, TN 37830 For Appellee: Charles W. Burson Attorney Gen eral & Repor ter Sandy R. C opous Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Jan Hicks Assistant District Attorney General 127 Anderson County Courthou se Clinton, TN 37716

OPINION FILE D:

REVERSED

GARY R. WADE, JUDGE OPINION

The defendant, Miki E dward Gol den, appeals from the j udgment of the2 trial cour t suspending his driver's lic ense for six months after finding that he vio lated the implied consent law define d in Tenn. Code Ann. § 5 5-10-406. The issue is wheth er th e def end ant h ad ad equa te no tice of t he ch arge. Beca use h e did not, we must rever

se.

The defendant was ar rested for dri ving w hile intox icated (DU I) on February 20, 1994. While at the police station, he refused t o take a blood or breath alcohol test even though t he officer advis ed him of the possibl e consequences of refusal. The DUI charge was first tried in the general sessions cou rt and resulted in a guilty verdict . On de novo appeal before the tr ial judge in the circ uit court, th e defendant was found not g uilty of DU I. The trial judge did, however, enter an order finding the defe ndant in violation of the imp lied consent law and suspended his driver' s license for six months. The defendant filed a motion in arrest of j udgment, claiming t hat the state failed to give him notice of int ent to suspend his license for violation of the implied consen t law. In response, the state argued that the affidavit on the DUI ar rest war rant, prov iding that t he defendant refused the test after being warned of the consequences, s erved as pr oper notice. The trial judg e denied reli ef.

The defen dant contends that the state failed to give him proper notice of intent to suspend h is driver's lic ense and that the ci rcuit cour t had no juris diction to find any violation of the implied consent law because the issue was not raised in the de novo appeal . The state concedes that the defendant never received proper notice of intent to susp end the defen dant's license and theref ore the conviction is invalid.

Section 55-10- 406 of the Tennessee Code An notated gives law enforcement officials th e right to require a blood or breath alcohol test t o anyone1 In 19 96, th e leng th of s usp ens ion w as inc reas ed fr om six to tw elve m onth s. 3 arrested for driving under the influen ce. If a defend ant fails to submit to such a test after being informe d of the potentia l consequences of a refu sal, the state may take action to suspend the de fendant's driver's license for six months. 1 Tenn. Code Ann. § 55-10-406(a) (3). Subsec tion (a)(3) states that the determination of a v iolation of the implied cons ent law sh all be made at the same time and by the same court t hat disposes of the or iginal ar resting offense; ho wever , the code clear ly states that violatio n of the implied cons ent law i s not a crimi nal offense. Id.

Tenn. Code Ann. § 5 5-10-406(c) provides as follows: Prior to su spending the l icense of any pe rson as authorized in this sect ion, the department shall notify the licensee in writi ng of the proposed suspension, and up on request, shall afford the person an opportunity for a hearing ...

. Here, the defenda nt was not given notice that the state intended to suspend his license. While the factual su mmary in the arrest warrant may have noted the defendant 's refusal to submit to the te st, the statute def ining proper notice clearly states that the state "shall noti fy the licens ee in wri ting of the proposed suspensi on ." A lesser noti ce of the viol ation is not s ufficient under the pl ain reading of the statute.

The record is void of any notice giv en to the defendant that thestate intended to suspend his licens e for violat ion of the implied consent law . The general sessions cour

t limited it s ruling as follows : "After rev iew of all the evidence and the arguments of couns el, the court is of the opinion that the defendant is g uilty of driving under the influenc e." Implicit in this rul ing is that the state did not pursue the issue of vio lation of implied consent duringits orig inal prosecut ion of the defendant. These facts support t he state's conc ession that the defendant did not recei ve proper notice of a pending driver 's license suspension under Tenn. Code Ann. § 55- 10- 406(c). Beca use the defendant neve r received sufficient noticeof the intent to4 suspend, the iss ue of whether thecircuit court had jur isdiction ov er the implied consent vi olation is moot

.

We therefore reverse the jud gment of the trial court.

_______________________________ Gary R. W ade, Ju dge CONCUR:

______________________________ Paul G. S umme rs, Judge

______________________________ W illiam M. B arker, Ju dge