CCA holds that T.C.A. § 55-10-406(a)(5) gives to the trial court, not a jury, the authority for determining whether the noncriminal implied consent law was violated. Trial judges should not allow that decision to be delegated to a jury contrary to the statute. CCA also does not believe that the trial court’s approving the jury’s finding suffices or renders harmless the trial court’s lack of a proper finding. Jury's verdict vacated.
In her dissent, Judge Ogle writes that since "the appellant did not raise the issue, that no prejudice can be demonstrated, and that the trial court acted as the thirteenth juror, I would not vacate the judgment or remand the case for a new hearing." The dissent recognizes other cases in the history of the court where the court has let stand verdicts of this nature. And as the judge wryly notes: "To be sure, the State’s having to convince a twelve-member jury that a defendant has violated the law is a benefit many defendants would not contest."