Purpose of Changes to TN Code
Purpose of changes in Chapter
55-10-400
References are to the current statute:
55-10-401:
(a)(1) definition was limiting and did not include substances that impair including aerosols and could be interpreted as limited to certain type drugs.
Changes addressed these problems and incorporated the standard description of intoxication from the pattern jury instructions.
Added the limitation for commercial vehicles established in another code section.
Added the description of the presumption of .08.
55-10-402
This section was moved to a subsection of 55-10-404. This permitted the use of 55-10-402 for the description of repeat offenders.
The repeat offender section clarifies how convictions relate to the current offense clarifying the law that had been severely criticized as confusing and ambiguous by the appellate courts.
There was a desire to change who was counted as a multiple offender to make certain the people who are the biggest threat are identified and punished accordingly. Currently the law permits the use of prior convictions in certain cases that are twenty years old. The desire was to reduce the window in which priors counted and to increase the penalties for those who are the most dangerous. The reduced window will permit the Class D felony punishment for 5th offenders and above. It also includes language so that vehicular homicide and assault cases will always count as priors. The injury or death of a fellow citizen should stop a person from ever committing the crime again.
55-10-403
This code section combines a multitude of laws. It is the sentencing statute, which includes incarceration, fines and license ramifications. It also includes strip searches, blood alcohol testing provisions, fees, restricted licenses and a hodge podge of laws. The goal of the Task Force was to limit this section to incarceration provisions, cull out unnecessary provisions and move other provisions to separate sections .
Sentencing changes:
The high blood alcohol concentration for first offenders is currently .20. NHTSA recommends a level of .15 because the greatest number of alcohol related fatalities include persons with a .15 or above. They have a 385 greater likelihood of being in a fatal crash that does a sober person.
Second offenders will not receive jail credits for attendance at rehab facilities unless they conform to the requirements of the treatment sentencing provisions of 55-10-405 which includes jail, treatment, intensive monitoring and ignition interlock devices. NHTSA studies have shown that a combination of jail, treatment and monitoring can reduce recidivism, but they must be combined to be effective.
The minimum penalty for a fourth offender (in 10 years not 20) will be increased by 30 days with the potential to reside at a place for the last 30 days in which the offender can receive instruction about reentry into society without driving under the influence. A 30 day period of this type will give the offender a chance to recognize the dangers of his past activities.
A fifth offense (within 5 years) penalty is established for those offenders who just won’t stop. It includes 360 consecutive days in custody. There will be fewer offenders of this type due to the change in how priors will count, but these will be the offenders who are extremely dangerous and need to be kept in custody as long as possible.
The child endangerment enhancement is changed to make certain the 30 day sentence is consecutive to any other sentence. Without that change a second offender would get less of a sentence if the person drove impaired with a child in the car than the person would otherwise.
The provisions for child endangerment that resulted in injury or death are removed. Those sentences were less than those in the vehicular homicide statute when any person is killed in a DUI. Prosecution can be brought under the vehicular homicide statute eliminating provisions that would have supplied a lesser penalty when a child is the victim.
The ADAT Fund was increased from $100 to $125 since ADAT is now responsible for indigent funding of ignition interlock devices and will also be paying for continuous remote alcohol monitoring devices if legislation permitting those devices and funding pass.
Moved from 55-10-403:
(a)(1)(a) Fines moved to 55-10-404.
(a)(1)(a) License suspensions moved to 55-10-405
(a)(1)(b) Child endangerment moved to 55-10-403(g)
(a)(B)(2) Concerning fines moved to 55-10-404. disbursements moved to 55-10-418
(b)(2) Mandatory nature of fines is moved to 55-10-404 General Provisions
(d)(1)(a) Restricted licenses is moved to 55-10-412, a part dealing with this alone.
(d)(4) Mandatory drug alcohol assessment moved to 55-10-404 General Provisions
(g) Concerning certain court procedures and evidence are moved to 55-10-410 court procedures
(h) Concerning a variety of Blood Alcohol Testing fees dependent of county size have been changed so that all citizens have the same fee no matter where they are located in the state. Section is moved to 55-10-417 Fees and Costs.
(j) Body cavity searches are removed. The belief is that this provision is no longer necessary.
(k) Concerning seizures of automobiles is moved to 55-10-413 Vehicle Forfeiture. The law is changed to permit seizures in cases of vehicular homicide, vehicular assault and habitual traffic offenders. It is also the intent of the Task Force that ½ of all profits from seizures be returned to the seizing agency so that the agency does not lose money due to manpower requirements if they seize vehicles.
(m) Sentencing is moved to 55-10-404 General Provisions.
(n) Permitting a different
penalty for
(p) Concerning sentencing and alternative sentencing is removed.
(q) Breath Alcohol Testing Fee is moved to 55-10-418 (b)
(r) $100 ADAT fee is increased to $125 to permit fee to be used to pay for continuous remote transdermal testing devices and ignition interlock devices. This section is moved to 55-10-418 (a).
(s) Trash pickup in lieu of 24 four hours of the mandatory jail time for first offenders is removed. NHTSA produced a document concerning “Countermeasures that Work”. Many of the recommendations of the Task Force come from that document. Public shaming is not on the list. The rehabilitation community indicates this is a counter productive penalty that may increase alcoholic tendencies.
55-10-404 Jurisdiction
of Sessions Court
This item is removed as no longer necessary. The Task Force would recommend studying the current court structure to determine if it is feasible to give Sessions Court full jurisdiction over this misdemeanor with the possibility of 6 person jury trials and appeals going directly to the Court of Criminal Appeals. This would free the Criminal Courts from involvement with misdemeanor DUI cases.
55-10- 405 Tests
Definitions
This section is deleted and moved to the Definitions section at 55-10-418
In the new proposal this section number is used for the “Treatment Sentencing” section, the purpose of which is contained in the statute itself. This section is based on Drug Treatment and DUI Treatment Courts from around the country and it is intended to stop 2nd and 3rd offenders from graduating to the felony offender level through the use of jail, treatment and intensive monitoring. Offenders will be under the direct supervision of the Court and the court will have access to technology to keep a watchful eye on the offenders. In return the offenders have a great opportunity to eliminate DUI as a behavior and can become a legal driver is a shorter period of time if they are willing to use an ignition interlock.
55-10-406 Tests for Alcoholic and drug impairment
etc.
Task Force recommends title of : Chemical Tests
There are major changes in this section. Problems addressed include the inability of the State to use search warrants for blood, the legislatively created opportunity for all offenders to control whether blood evidence will be available at trial, a two hour limit for testing which is often impossible to meet in fatal crashes in cities and counties, inclusion of another section concerning restricted licenses.
The changes are:
1) Search warrants for blood will be permitted if a defendant refuses testing
2) Certain categories of people including convicted DUI felons, those driving without a valid license to drive, those who commit homicide or assault by intoxication and persons driving after their license to drive has been revoked for DUI in this or any other state will not be permitted to refuse testing.
When a person gets a license to drive, the person promises
to give a blood sample if suspected of DUI.
The legislature has allowed drivers to refuse giving the sample with the
penalty of a license suspension. If the
driver never got a license, the driver never promised to give a sample. Current law lets the driver refuse and
receive a license suspension for a license the person never obtained or which
was previously cancelled due to other violations. Currently a vehicular homicide or aggravated
assault offender may not refuse testing. Felony offenders refuse at an extremely high rate . It is estimated that felony offenders refuse about
seventy five per cent (75%) of the time according to
3) The method of advising offenders concerning implied consent should be uniform across the state and the Task Force recommends that every officer use the same form. The Task Force recommends that a standardized form be created and distributed by the department of safety and that the offender have the opportunity to sign the form indicating whether the person will take the test.
4) The two hour limit for testing will not be eliminated, but will be limited to a limit on breath testing. This limit will not apply in cases of vehicular homicide or assault and will not apply to drug testing as drugs do not dissipate from the system as quickly as alcohol. The limit will not apply to situations in which a crash occurred due to the common necessity of transporting the offender for medical care prior to testing. Inability to complete alcohol testing within two hours will not eliminate the use of the result, but will eliminate the use of the .08 presumption.
55-10-407 concerning admissibility is moved to 55-10-406 (11)
55-10-408 presumptions has been moved to 55-10-401
55-10-409 availability of results has been moved to 55-10-406 (9)
55-10-410 has been moved to 55-10-407
55-10-411 has been included in 55-10-404 (h) General Provisions
55-10-412 Ignition Interlock
Currently this law permits a second offender to obtain an ignition interlock during the second year of his two year license revocation. This section is eliminated. In 55-10-405 concerning treatment sentencing second and third offenders will be permitted to drive with an ignition interlock much sooner than the current law permits, but only after they have gone through jail, treatment and intensive monitoring. Those that are not willing to address the problem fully will not be given the privilege to drive until the license suspension is completed. The ignition interlock section has been moved to 55-10-413.
55-10-413 has been deleted. The Task Force believes this section was not effective and was not being implemented.
55-10-414 has previously been deleted.
55-10-415 This section has been divided and relocated to 55-10-419 and 420.
Section 55-10-419 will apply to underage drivers who are sixteen to eighteen years of age. The only substantive change is a required alcohol/drug assessment.
Section 55-10-420 will apply to persons who are 18-21 years old. For this section to apply the person must have registered a .02 to .08 blood alcohol concentration. If the adult driver over 18 years of age registers a .08 or above, the person is to be prosecuted for DUI. The person shall also receive an alcohol and drug assessment. The person convicted of this offense may apply for a restricted driver’s license.
55-10-416 Open Container
This section is moved to 55-10-421.
The Task Force recommends that this law be broadened to include open containers of passengers. Currently the driver with an open container can simply pass the container to a passenger when the blue lights come on. Any open alcohol containers in the vehicle would result in a violation of this class C misdemeanor.
55-10-419 Moved to 55-10-417 in its entirety
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