We all try to read all the posted updates on applicable statutes, rules and cases relevant to our courts and law practices. However, most of us have limited brain storage capacity, so the law we retain the best is often what is used on a regular, reoccurring basis, in our courts and law practice. When it comes to DUI offenses, we often focus on the applicable DUI statute, and facts necessary to prove, or disprove, the elements of the offense. Rarely do we, as judges, prosecutors or defenders, focus on the issue of a bail bond for the defendant alleged to have committed a second or subsequent offense of DUI. With that in mind, when a second or subsequent offense of DUI is alleged, does the Defendant represent a greater danger to society once released from custody following the arrest? If so, what, additional precautions should be considered by the court? Does any statute address the conditions for bail bonds on a DUI second or subsequent offense? Actually, there is such a statute, but it is often overlooked or forgotten in the daily routine of performing our duties as a judge, prosecutor or defender. To what statute am I referring, well, T.C.A. 40-11-118 (d), of course. Never heard of it. Well, don’t feel too bad. It is a long statute which covers various general and specific bail and bond issues. Buried deep within Section 40-11-118 of the Tennessee Code Annotated is subdivision (d)(l)(C)(2) which provides “If the defendant is charged with an offense listed in subdivision (d)(l) and has one (1) or more prior convictions for any of the listed offenses and is not subject to the requirements of subsection (f), then the court shall (emphasis added) also consider the use of special conditions for the defendant, including the following:
(A) The use of transdermal monitoring devices or other alternative alcohol monitoring devices. If the court orders the use of a monitoring device on or after July 1, 2016, and determines the defendant is indigent, then the court shall order the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in T.C.A. Section 55-10-419;
(B) The use of electronic monitoring with random alcohol or drug testing;
(C) Pretrial residency in an inpatient alcohol or drug rehabilitation center.
In Williams v. Williams, No. W2016-01602-COA-R3-CV, filed August 17, 2017, (Tn. Ct. Appeals, W.S.), the appellate court held “when “shall” is used in a statute or a rule, the requirement is mandatory.” However, as it relates to this particular statute, the words “shall also consider” gives the court discretion as whether or not the special conditions set forth in subsections A, B and C should be imposed as a part of the defendant’s bail. In other words, the statute makes it mandatory on the court to consider the special conditions when setting bail for a defendant charged with a second or subsequent DUI offense, but it does not mandatorily require the courts to impose such special conditions. Of course, the purpose of this statutory provision is intended to allow the court to take extra precautions to ensure the best interest of justice and safety of the public through monitoring of the defendant, charged with a second or subsequent DUI offense, while out of custody on bail pending further court proceedings. Although the statute does not require the court to make a written finding regarding its decision about whether or not to impose any of the special bail conditions, it does require the court to “mandatorily” consider the imposition of such special conditions. The question becomes when should the court impose such special conditions when setting bail for a defendant charged with a second or subsequent. Although no clear or set standard for this determination exists, the court should always give consideration, preferably on the record, to these special conditions when setting bail for a defendant charged with a second or subsequent DUI charge. In other words, do your due diligence, follow your instincts and impose such special conditions when your gut tells you they are warranted to ensure the best interest of justice and safety of the public. If you follow through with an analysis of the statute, based on the totality of the circumstances, the imposition of such special conditions, when justified, will help us all sleep better at night.
Author: James Y. Ross, Sr., Wayne County General Sessions Judge/ December 30, 2024.
Tennessee Judicial Outreach Liaison
Judge Donald E. Parish
Phone: 731-225-6386
Email: donaldparish1@yahoo.com
This project is funded through a grant provided by the Tennessee Highway Safety Office.