            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE              FILED
                              AUGUST 1997 SESSION
                                                           September 26, 1997

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE,              *         C.C.A. # 03C01-9610-CC-00374
                                 *
                 Appellee,       *         ANDERSON COUNTY
VS.                              *
                                 *         Hon. James B. Scott, Jr., Judge
MIKI EDWARD GOLDEN,              *
                                 *         (Violation of Implied Consent)
                 Appellant.      *
                                 *




For Appellant:                             For Appellee:

Michael W. Ritter                          Charles W. Burson
131 East Tyrone Road                       Attorney General & Reporter
Oak Ridge, TN 37830
                                           Sandy R. Copous
                                           Assistant Attorney General
                                           Criminal Justice Division
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           Jan Hicks
                                           Assistant District Attorney General
                                           127 Anderson County Courthouse
                                           Clinton, TN 37716



OPINION FILED:




REVERSED




GARY R. WADE, JUDGE
                                     OPINION

             The defendant, Miki Edward Golden, appeals from the judgment of the
trial court suspending his driver's license for six months after finding that he violated

the implied consent law defined in Tenn. Code Ann. § 55-10-406. The issue is

whether the defendant had adequate notice of the charge. Because he did not, we

must reverse.



              The defendant was arrested for driving while intoxicated (DUI) on

February 20, 1994. While at the police station, he refused to take a blood or breath

alcohol test even though the officer advised him of the possible consequences of

refusal. The DUI charge was first tried in the general sessions court and resulted in

a guilty verdict. On de novo appeal before the trial judge in the circuit court, the

defendant was found not guilty of DUI. The trial judge did, however, enter an order

finding the defendant in violation of the implied consent law and suspended his

driver's license for six months. The defendant filed a motion in arrest of judgment,

claiming that the state failed to give him notice of intent to suspend his license for

violation of the implied consent law. In response, the state argued that the affidavit

on the DUI arrest warrant, providing that the defendant refused the test after being

warned of the consequences, served as proper notice. The trial judge denied relief.



              The defendant contends that the state failed to give him proper notice

of intent to suspend his driver's license and that the circuit court had no jurisdiction

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 suspend the defendant's license and therefore the conviction is

invalid.



              Section 55-10-406 of the Tennessee Code Annotated gives law

enforcement officials the right to require a blood or breath alcohol test to anyone


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arrested for driving under the influence. If a defendant fails to submit to such a test

after being informed of the potential consequences of a refusal, the state may take

action to suspend the defendant's driver's license for six months. 1 Tenn. Code Ann.

§ 55-10-406(a)(3). Subsection (a)(3) states that the determination of a violation of

the implied consent law shall be made at the same time and by the same court that

disposes of the original arresting offense; however, the code clearly states that

violation of the implied consent law is not a criminal offense. Id.



                   Tenn. Code Ann. § 55-10-406(c) provides as follows:

                   Prior to suspending the license of any person as
                   authorized in this section, the department shall notify the
                   licensee in writing of the proposed suspension, and upon
                   request, shall afford the person an opportunity for a
                   hearing ....

Here, the defendant was not given notice that the state intended to suspend his

license. While the factual summary in the arrest warrant may have noted the

defendant's refusal to submit to the test, the statute defining proper notice clearly

states that the state "shall notify the licensee in writing of the proposed suspension."

A lesser notice of the violation is not sufficient under the plain reading of the statute.

                   The record is void of any notice given to the defendant that the state

intended to suspend his license for violation of the implied consent law. The general

sessions court limited its ruling as follows: "After review of all the evidence and the

arguments of counsel, the court is of the opinion that the defendant is guilty of

driving under the influence." Implicit in this ruling is that the state did not pursue the

issue of violation of implied consent during its original prosecution of the defendant.

These facts support the state's concession that the defendant did not receive proper

notice of a pending driver's license suspension under Tenn. Code Ann. § 55-10-

406(c). Because the defendant never received sufficient notice of the intent to


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           In 1996, the leng th of s usp ens ion was inc reas ed from six to tw elve m onth s.

                                                        3
suspend, the issue of whether the circuit court had jurisdiction over the implied

consent violation is moot.



             We therefore reverse the judgment of the trial court.



                                         _______________________________
                                         Gary R. Wade, Judge

CONCUR:



______________________________
Paul G. Summers, Judge



______________________________
William M. Barker, Judge




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