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State v. Pinchak4/25/2005
Facts and Procedural History
The facts presented at the plea hearing established that the defendant was operating a motor vehicle on Lake Resort Drive in Hamilton County on November 3, 2001. The defendant's vehicle struck a van, causing it to veer off the road and flip upside down. The collision caused physical injury to two victims, who were inside the van. When police officers responded to the accident, the defendant appeared intoxicated, refused to submit to a field sobriety test, and refused to sign an implied consent form.
The Hamilton County Grand Jury returned an indictment charging the defendant with (1) driving under the influence of an intoxicant (D.U.I.); (2) vehicular assault; (3) aggravated assault; and (4) violation of the implied consent law. Pursuant to an agreement by the parties, the State dismissed the D.U.I. charge, and the defendant pled nolo contendere to the remaining three offenses.
For the vehicular assault and the aggravated assault, the trial court sentenced the defendant to two concurrent two-year sentences but granted the defendant's request to be placed on judicial diversion for a term of six years. Before granting diversion, the trial court heard the testimony of defense witnesses, finding that "[the defendant] has made extraordinary efforts towards rehabilitation and the acceptance of responsibility." For violation of the implied consent law, the trial court suspended the defendant's driver's license for one year.
The defendant then filed a post-hearing memorandum, arguing that the trial court had the authority to grant judicial diversion for the implied consent violation. The defendant also stated that, although he initially refused a breathalyzer test, he subsequently offered to take a blood alcohol test and blood was drawn at the hospital. The State objected to the defendant's contention, arguing that the one-year suspension was appropriate. The trial court entered an order that stated:
ount 4 of the indictment, though it charges the defendant with failure to submit to a blood alcohol test, does not charge a criminal offense, the Court finds that it should be dismissed sua sponte, the defendant's request for deferral of the entry of judgment on that count denied as moot, and the state's request for suspension of the defendant's driving privileges pursuant to [section] 55 10 406 denied. See Tenn. Code Ann. § 55 10 406(a)(3) (providing that a violation of that statute is not a criminal offense, except when it occurs while the defendant is driving on a revoked, suspended, or cancelled license, in which event it constitutes a Class A misdemeanor); Tenn. R. Crim. P. 12(b)(2) (authorizing a trial court to notice the failure to charge an offense at any time during the pendency of proceedings). . . . .
The Court therefore ORDERS as follows:
(1) that the subject requests be denied and (2) that count 4 of the indictment be dismissed.
The trial court then entered a nunc pro tunc order that set forth the conditions of judicial diversion for the aggravated assault and vehicular assault charges and formally dismissed the D.U.I. and implied consent charges. From this order the State appeals.
Analysis
Before addressing the merits of this appeal, we believe a review of Tennessee's implied consent law will be helpful. In Tennessee, " ny person who drives any motor vehicle . . . is deemed to have given consent to a test for the purpose of determining the alcoholic or drug content of that person's blood; provided, that such test is administered at the direction of a law enforcement officer having reasonable grounds to believe such person was driving while
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