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State v. Pinchak4/25/2005
h this violation is civil in nature, it still must be adjudicated along with the ancillary indicted criminal offenses and in the same court.
The defendant did not contest the facts as presented at the hearing. Based upon these facts, the trial court initially determined that the defendant had violated the implied consent law and, therefore, suspended his license for the statutorily defined period of one year. This imposition was proper and must now be reinstated. Tennessee Code Annotated section 55-10-406(a)(3) states that "the court shall revoke the license of such driver" for a period of one year if the driver is determined to have committed an implied consent violation.
Finally, the State argues that judicial diversion is not authorized under Tennessee Code Annotated section 40-35-313 (2003) for a civil implied consent violation. We agree. Tennessee Code Annotated section 55-10-406(a)(3) mandates that a driver in violation of the implied consent law (1) "shall be charged with violating this subsection" and (2) that the trial court "shall revoke the license of such driver." The trial court cannot circumvent the mandatory language of the statute in this case by granting judicial diversion. Furthermore, the defendant's violation of the implied consent law in this case is not a criminal offense; it is a civil offense imposing an "administrative penalty." The judicial diversion statute, Tennessee Code Annotated section 55-10-406, only applies to adjudication of criminal offenses under the Tennessee Sentencing Reform Act of 1989. In consequence, the defendant's request for judicial diversion of the mandatory one-year license suspension is without merit in this case.
Conclusion
For the foregoing reasons, we reverse the dismissal of the implied consent law violation and remand the case for reinstatement of the trial court's original imposition of a one-year suspension of the defendant's license.
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