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State v. Powers4/19/1999
Huskins, C.C.A. No. 01C01-9707-CR-00253, Putnam County (Tenn. Crim. App. filed September 29, 1998, at Nashville). We similarly conclude that erroneously advising a defendant of a six-month suspension rather than the proper one-year suspension does not lead to suppression. Common sense also dictates that if the defendant was willing to consent to the test believing his refusal would lead to a six-month suspension, he certainly would have consented had he known the suspension would have been for one year. This issue is without merit.
This Court notes that the trial court entered two separate judgments of conviction for two counts of DUI based upon the same conduct. Count 1 charged driving under the influence of an intoxicant pursuant to Tenn. Code Ann. § 55-10-401(a)(1), and Count 2 charged driving with an alcohol concentration of .10% or more pursuant to Tenn. Code Ann. § 55-10-401(a)(2). The statute does not contemplate separate offenses based upon the same conduct as this would be a double jeopardy violation. See generally, State v. Denton, 938 S.W.2d 373, 378-83 (Tenn. 1996).
We have determined that the chemical test was not subject to suppression; therefore, defendant's conviction pursuant to Tenn. Code Ann. § 55-10-401(a)(2) is proper. This renders moot the other certified question relating to the propriety of certain field sobriety tests absent Miranda warnings since it related to the conviction pursuant to Tenn. Code Ann. § 55-10-410(a)(1).
CONCLUSION
We affirm the judgment of conviction under Count 2 of the indictment alleging that the defendant unlawfully drove a motor vehicle with an alcohol concentration of .10% or more. We remand this matter to the trial court with instructions to set aside the separate DUI conviction under Count 1 of the indictment.
JOHN EVERETT WILLIAMS, Judge
CONCUR: DAVID G. HAYES, Judge JOE G. RILEY, Judge
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