        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs October 1, 2002

               STATE OF TENNESSEE v. KEVIN LEE PENNELL

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2000-T-515    Steve R. Dozier, Judge



                    No. M2001-01863-CCA-R3-CD - Filed April 28, 2003


The defendant was found in criminal contempt of court for violating a court order by operating a
motor vehicle after his driving privileges had been lost for one year, and received a ten-day jail
sentence. He raises two issues on appeal: (1) whether a trial judge can revoke a Tennessee driver’s
license; and (2) whether he was in contempt for driving his vehicle the same day and after he had
lost his license. Finding no error, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., J.,
joined. DAVID H. WELLES, J., filed a dissenting opinion.

V. Michael Fox, Nashville, Tennessee, for the appellant, Kevin Lee Pennell.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Kristen K. Shea, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                             FACTS

       On September 20, 2000, the defendant was indicted for DUI and violation of the implied
consent law, Tenn. Code Ann. § 55-10-406, for refusing to submit to a blood-alcohol test. Although
he was acquitted of the DUI charge by a Davidson County jury on June 12, 2001, the defendant
conceded that he had violated the implied consent law. The judgment for this offense states that
“Defendant is found to have violated the implied consent law with a loss of license for one year.”

       That same afternoon, Assistant District Attorney General David Vorhaus witnessed the
defendant operating his pickup truck in front of the courthouse. Although General Vorhaus was not
involved in the defendant’s case, he was familiar with him because he was present in court for the
return of his verdict and the following implied consent hearing, which occurred approximately one-
half hour before the sighting. General Vorhaus testified that, as he made eye contact with the
defendant, who was driving his truck in front of the courthouse, “he seemed to put his head down”
as it was “very clear” that they recognized one another.

       On June 18, 2001, the trial court entered an order requiring the defendant “to show cause why
he should not be held in contempt of court for his failure to comply” with the court’s previous order
suspending his driving privileges. Following a June 27 hearing, the trial court found the defendant
in contempt for willful disobedience of the court’s order and sentenced him to ten days in jail,
explaining:

                        Based on the proof that I’ve heard here today – which is
                unrebutted, so I find that there is sufficient proof beyond a reasonable
                doubt to find that [the defendant] was driving soon after he had – his
                license and driving privileges had been suspended by the Court.

                ....

                       In terms of your driving privileges, if there was any
                misunderstanding on your behalf, your driving privileges are
                suspended. Do not drive. I’m ordering that you do not drive.

                        Your license are [sic] still back here on my secretary’s desk,
                and your privileges are suspended for a period of twelve months from
                June the twelfth of two-thousand-one. That order will still be in
                effect.

                                             ANALYSIS

                                 I. Suspension of Driver’s License

        Relying upon Opinion No. 98-125 of the Tennessee Attorney General, the defendant argues
that a trial court cannot “revoke a Tennessee Drivers License.” That opinion, explaining the
mechanics of revocation of a license following a DUI conviction, provides that “[t]he entry of an
order by a trial court finding a person guilty of driving under the influence does not constitute
revocation of that person’s driver [sic] license. However, upon receipt of a record of conviction for
driving under the influence, the Department of Safety shall revoke a person’s driver [sic] license per
Tenn. Code Ann. § 55-50-501(a)(2).” Tenn. Op. Att’y Gen. No. 98-125 (July 20, 1998). Further,
its author opines that “[t]he ‘revocation’ of the driver [sic] license of a person who is convicted of
driving under the influence takes effect when the Department of Safety issues a notice of
revocation.” Id. This analysis seems to be consistent with the DUI penalty statute, Tenn. Code Ann.
§ 55-10-403(a)(1) regarding the authority of a trial court as to driving privileges, which provides that,
following a conviction, “the court shall prohibit such convicted person from driving a vehicle in the


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state of Tennessee for a period of time of one (1) year.” The opinion, in fact, notes the distinction
between a trial court’s prohibiting a person convicted of DUI from driving and the Department of
Safety’s suspending the person’s license.

         In the judgment which is the basis for the present appeal, however, the trial court did not
purport to revoke the defendant’s license. Rather, it ordered a one-year “loss of license.” Although
we note that during the contempt hearing, there was much discussion as to whether this was a
revocation or suspension, the judgment utilizes neither of these words, ordering, instead, that for the
next year, the defendant had lost his driver’s license, which he apparently surrendered to the court
at that time. The dispute as to whether the trial court’s action was a revocation or a suspension may
have been prompted by an amendment to the implied consent statute near the time of this matter.
At the time of the defendant’s violation, Tennessee Code Annotated section 55-10-406(a)(3)
provided, in pertinent part, that, upon a violation of this statute, “the court shall suspend the license
of such driver for a period of twelve (12) months.” (emphasis added). However, this statute was
amended, effective July 1, 2000, to provide that, following a violation of the statute, “the court shall
revoke the license of such driver.” (emphasis added).

        In State v. Michael Ray Swan, No. M2000-00539-CCA-R3-CD, 2001 WL 430601, at *9
(Tenn. Crim. App. Apr. 27, 2001), the trial court revoked the defendant’s license for one year for
violating the implied consent law, the judgment form ordering that the defendant’s license was
“revoked one year.” In Swan, we explained that, although the words “suspended” and “revoked”
are often used interchangeably, they have different meanings based on their statutory definitions:

                “‘Revocation of driver license’ means the termination by formal
                action of the department of a person's driver license or privilege to
                operate a motor vehicle on the public highways, which termination
                shall not be subject to renewal or restoration except that an
                application for a new license may be presented and acted upon by the
                department after the expiration of at least one (1) year after date of
                revocation.

                ....

                ‘Suspension of driver license’ means the temporary withdrawal by
                formal action of the department of a person's driver license or
                privilege to operate a motor vehicle on the public highways, which
                temporary withdrawal shall be for a period specifically designated by
                the department. . . .”

Id. at *9 (quoting Tenn. Code Ann. § 55-50-102(42), (47)). Swan concluded that it was “likely that
the trial court intended only to suspend the defendant's driver's license because it followed the term
‘revoked’ with the phrase, ‘for one year’” and amended the trial court’s judgment to provide for a
one-year suspension for the implied consent conviction. Id.


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        The issue before us is whether the trial court had the authority to suspend the defendant’s
driver license on June 12, 2001, and clearly it did. See Tenn. Code Ann. §§ 55-10-403(a)(1),
-406(a)(3); see also State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995) (holding that the court is
required to suspend a driver’s license for the time required by statute upon a finding that the driver
violated the implied consent law).

       Accordingly, we conclude that the trial court, as it was authorized to do, ordered at the
morning hearing the suspension of the defendant’s license and that such order was effective
beginning at that time.

                                       II. Contempt of Court

        The defendant argues on appeal that the trial court improperly found him in contempt of
court. Noting that the records of the Tennessee Department of Safety showed that, as of June 12,
2001, the day that his driving triggered the State’s show cause motion, his driver’s license was still
valid, the defendant asserts that “[t]here is no court order in the record prohibiting [him] from
driving,” and that “[t]he only order in the record orders ‘loss of license for one year.’”

        We agree with the defendant’s arguments regarding the status of his driver’s license as of
June 12, 2001, and the wording of the judgment. However, these arguments ignore the trial court’s
orders to the defendant at the conclusion of the hearing the morning of June 12, when he surrendered
his driver’s license to the court. The accounts disagree as to the court’s instructions to the defendant.
According to the affidavit of Assistant District Attorney General David G. Vorhaus, which
apparently was attached to the show cause motion, “[t]he Court ordered the defendant to turn over
his license immediately and instructed the defendant that his license was revoked and . . . he could
not drive unless the court granted him a restricted license.” The defendant responded in his motion
to dismiss the show cause order that “a thorough review of the transcript of proceedings reveals that
the Court made no such statement nor issued any such order.” We cannot determine which of these
claims is correct, for the record on appeal does not contain a transcript of the hearing at which the
defendant surrendered his license and was instructed as to his future driving.

       We note that at the contempt hearing, the following exchange occurred between the trial
court and counsel for the defendant:

                THE COURT: If I tell a person his license [is] suspended, don’t be
                driving, and that person drives, can I hold them in contempt?

                [DEFENSE COUNSEL]: If that’s what you tell them, yes; but you
                didn’t tell him that in this case.

        As this court explained in State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App.
1993), regarding the effect of the record on appeal being insufficient to review the issue raised by
the appellant:


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                         It is, however, the duty of the appellant to prepare a record
               that conveys a fair, accurate, and complete account of what transpired
               in the trial court with respect to the issues that form the basis for the
               appeal. Tenn. R. App. P. 24(b); State v. Miller, 737 S.W.2d 556, 568
               (Tenn. Crim. App. 1987). When the record is incomplete and does
               not contain information relevant to a particular issue, this court may
               not make a ruling. State v. Cooper, 736 S.W.2d 125, 131 (Tenn.
               Crim. App. 1987). In the absence of an adequate record, our court
               must presume the correctness of the trial court's ruling. Appellate
               courts may only review what is in the record and not what might have
               been or should have been included. Dearborne v. State, 575 S.W.2d
               259, 264 (Tenn. 1978).

        In this matter, while the defendant agreed at the hearing that a trial court may suspend a
defendant’s license and order that he not drive, the record on appeal does not contain a transcript of
the hearing at which the defendant’s driver’s license was taken and he received instructions, the
details of which were disputed at the contempt hearing, as to his continued driving. The record being
inadequate for review of this issue, we presume that the trial court ruled correctly in finding the
defendant in contempt of court.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the trial court’s judgment.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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