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State v. Gastineau12/14/2005
I. Factual Background
The record reflects that on September 28, 2003, the appellant was driving a black Honda Prelude that almost broadsided an unmarked police car being driven by Sergeant Smallwood. Sergeant Smallwood began following the appellant and saw him run a stop sign. When the appellant stopped the Honda, Sergeant Smallwood approached the car and noticed a strong odor of alcohol. The appellant also had slurred speech and bloodshot and watery eyes. The officer asked the appellant to perform field sobriety tests and informed him about the implied consent law. The appellant refused to consent to a test for the purpose of determining the alcoholic or drug content of his blood. According to the affidavit of complaint filed in the case, the appellant was arrested for driving under the influence (DUI), reckless driving, driving without a license, public intoxication, and violating the implied consent law.
In March 2004, a grand jury indicted the appellant for DUI and reckless driving. Pursuant to a plea agreement, the State nolle prosequied the DUI charge and the appellant agreed to plead guilty to reckless driving, receive a six-month sentence, and pay a five hundred dollar fine. At the September 9, 2004, guilty plea hearing, the appellant pled guilty to reckless driving and received the agreed upon sentence. After reciting the rights the appellant was relinquishing by pleading guilty, the trial court advised the appellant that he was entitled to a hearing "for me to decide whether or not you refused the test." The appellant argued that he could not be found to have violated the implied consent law because the grand jury never charged him with that offense and he never received notice. The trial court stated that any indictment charging the appellant with violating the implied consent law would have been a nullity because violating the implied consent law is not a crime. The court then scheduled a hearing for October 4, 2004, to determine whether the appellant had violated the implied consent law. At the hearing, the appellant again argued that the trial court could not find that he violated the implied consent law because "the State has to initiate something by some form of pleading or an indictment or something of that nature." The trial court stated as follows:
So I find in this case that he was initially charged with [violating the implied consent law] even though it wasn't a crime, the charging instrument being the affidavit of complaint which was in the jacket. He entered a guilty plea to Count Two of the indictment, reckless driving and the DUI was dismissed. The indictment did not charge him with failure to take the test as it's not a crime.
So he has entered a guilty plea to reckless driving to the indictment, which is a separate charging instrument than the affidavit of complaint which had charged him with failure to take the test.
The trial court concluded that the appellant had violated the implied consent law and revoked his driver's license for one year.
II. Analysis
The appellant claims that the trial court erred by sua sponte finding that he had violated the implied consent law. He contends that the trial court could not find that he had violated the implied consent law because the grand jury never charged him with that offense and no warrant alleged that he committed the offense. The State contends that the statute governing implied consent violations does not specify what charging instrument must be used to charge a defendant with an implied consent law violation and that an indictment was not required. Moreover, the State contends that a trial court must enforce the implied consent law regardle
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