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State v. Hosford6/4/1999
The State of Tennessee appeals as of right from the trial court's remand to the general sessions court of a one-count indictment charging the appellee, Anne K. Hosford, with the misdemeanor offense of driving under the influence of an intoxicant. We modify the judgment of the trial court and dismiss the indictment.
BACKGROUND
This case presents a procedural nightmare. The paucity of the record further complicates the court's attempt to make a complete determination of the issues.
An arrest warrant was issued for the appellee on September 30, 1997. The warrant reflects that an automobile accident occurred in Oak Ridge, Anderson County, Tennessee on September 24, 1997. One vehicle left the scene just prior to the arrival of police officers. Subsequent investigation resulted in the location shortly thereafter of the vehicle and the appellee, who admitted being the driver. At that time the investigating police officer observed the appellee to have a strong odor of alcoholic beverage on her breath and about her person. He stated that her eyes were red and glassy and that she was unsteady on her feet. She then failed field sobriety tests and refused a blood alcohol test. She was arrested for driving under the influence of an intoxicant.
On one or more dates after appellee's arrest, a preliminary hearing was scheduled in general sessions court. The hearing was then rescheduled to December 10, 1997. Defendant filed a motion to suppress and appeared in court on December 10 for the hearing on both matters. The arresting officer did not appear and the case was rescheduled to January 14, 1998. On that date defendant appeared again, along with a witness. Some testimony was received by the general sessions court Judge, but he apparently ran out of time on his calendar. He continued the hearing again to February 11, 1998, the prosecuting officer's next available court date.
On February 3, 1998, the District Attorney presented the case to the Anderson County Grand Jury, which returned an indictment against appellee for driving under the influence of an intoxicant. The state did not inform the appellee or defense counsel about the indictment until they next appeared in general sessions court on February 11, 1998. On March 5,1998, appellee filed in the Anderson County Criminal Court a motion to remand for preliminary hearing or in the alternative to dismiss.
On March 20, 1998, the trial court conducted a hearing on that motion. The court stated that it was "hard for him to find that the prosecutor was acting in bad faith," but he remanded the case to the general sessions court for any further suppression hearing left undecided, and any other necessary proceedings.
ANALYSIS
The state contends that because the appellee had already been indicted for driving under the influence , and the trial court denied her motion to dismiss the indictment, the trial court erred in remanding the case back to general sessions court. The state relies on State v. Hudson, 487 S.W. 2d 672, 676 (Tenn. Crim. App. 1972), in asserting that, after indictment, a general sessions Judge has no authority or power to proceed with a preliminary hearing and to re-determine the same question of probable cause. The state also asserts that the trial court did not specifically find that the prosecutor had acted in bad faith, so that appellant was not entitled to a dismissal of the indictment more than thirty days after her arrest. The appellee asserts that the trial court's ruling represents an implicit finding of bad faith on behalf of the state.
Tennessee law is clear that, while a preliminary hearing is not constitutionally required, it is
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