Report from TACDL Legislative Committee Member Melanie R. Bean
The legislative session is underway and already over 150 legislative bills have been proposed relevant to the defense of persons accused of crime. The results of the November elections are causing major changes that not only impact the composition of the legislature, but more significantly affect the judiciary committees who primarily conduct testimonial hearings relevant to the aforementioned bills. With this in mind, it is even more imperative for TACDL to forge relationships and create dialogue among legislative members to provide information on the practical dynamics of potential legislation.
I have attempted to isolate a few bills of significant relevance to the readers, which I have grouped by pertinent category.
DUI Bills
Even though many jurisdictions are struggling with the full impact of DUI legislation which became effective January 1, 2011, the same has not stalled the efforts to expand the use of interlock devices and make further revisions to T.C.A. 55-10-401.
SB 0451/HB 0475 are proposed bills that seek to broaden the standard of impairment for the offense of driving under the influence. Effective January 1, 2011 due to legislation passed last session, the impairment standard was expanded to “under the influence of any intoxicant … or any combination thereof … by depriving the driver of clearness of mind and control of himself which he would otherwise possess.” New proposed legislation would broaden the standard further by deleting the clearness of mind language and substituting “thereby impaired to the slightest degree.”
SB 0479/HB 0484 broaden the requirements that certain first-time DUI offenders will have to receive an ignition interlock devices if their alcohol concentration is .08 percent at the time of the offense, instead of the current .15 percent. Further changes to include requirements for an ignition interlock when requesting a restriction license are also proposed for specific DUI offenders in two sets of proposed bills: SB 0480/HB 0140 and SB 1085/HB 0138.
Exclusionary Rule
SB 0559/HB 0401 would seek to enact the “Exclusionary Rule Reform Act.” The same essentially creates a good faith mistake or technical violation exception to the exclusionary rule. Currently under Tennessee law, there is no good faith exception to the probable cause requirement. The Tennessee Supreme Court has clearly interpreted that the State Constitution extends a greater protection in the area of search and seizure than that required by the Federal Constitution. Under federal law, a search warrant executed based upon insufficient probable cause may still pass constitutional muster if a good faith exception applies. The attempts of this legislation to reverse the Tennessee Supreme Court’s interpretation of the State Constitution could be invalid and violate separation of powers.
Another variation of the exclusionary rule exception is reflected in proposed bills SB 1002/HB 1035, which would still amend an aspect of the search and seizure law in Tennessee on technical violations, but would not necessarily overrule the Tennessee Supreme Court’s interpretation of the Tennessee Constitution. The same still remains constitutionally problematic.
Juvenile Sex Offender Registry
The proposed juvenile sex offender registry has once again been proposed in SB 0869/HB 0687. This was the subject of vigorous debate last session. While it is expected that discussions over the parameters of any proposed bill may be friendlier and more relaxed due to changes in federal requirements with the Adam Walsh Act, the same still further blurs the already hazy line between child victims and child offenders in the judicial system, with weighty and longstanding consequences. Disputed parameters on the proposed bill include a public versus private registry, inclusion of treatment requirements, and whether publication would be required at age eighteen for certain delinquency actions.
Pretrial Diversion
As expected, proposed bills to abolish pretrial diversion were filed in SB 1234/HB 0694. The proposed legislation would also alter the definition of “qualified defendant” for the purposes of judicial diversion. If not abolished, additional limitations on pretrial diversion and potential modifications to judicial diversion, including the grade and type of felony eligible for either form of diversion, are also slated for discussion and possible modification. For example, removal of all sexual offenses from diversion eligibility is included in the proposed legislation.
Another interesting twist on potential changes to pretrial diversion includes SB 1011/HB 0693, which are proposed legislation that seeks to limit the reason for which a prosecutor may be found to have abused prosecutorial discretion in failing to grant pretrial diversion. The proposed legislation would also create a prosecutorial right to an interlocutory appeal for a judicial finding of abuse of prosecutorial discretion. The declaration of this “prosecutorial right” is interesting in light of the fact that the most general argument for complete eradication of pretrial diversion is the number of appellate cases concerning the grant or denial of pretrial diversion.
Crime Free School Zone Act
Proposed legislation in SB 1871 and HB 0086 seeks to amend T.C.A. 39-17-432 to create the “Crime Free School Zone Act”. This legislation would expand what is currently known as the Drug Free School Zone Act, which currently increases penalties and punishments for violations of T.C.A. 39-17-417 which occur on or within one thousand feet (1,000’) of a school, public library, preschool, child care agency, public library, recreational center or park. Under the “Crime Free School Zone Act”, a violation of any of the following offenses would be added to the list of crimes which increase punishment and require automatic incarceration:
Assault: 39-13-101; Aggravated Assault: 39-13-102; Reckless Endangerment: 39-13-103; Vehicular Assault: 39-13-106; Female genital mutilation: 39-13-110; Violation of an Order of Protection or Restraining Order: 39-13-113; Communicating a threat concerning a school employee: 39-13-114; Robbery: 39-13-401; Aggravated Robbery: 39-13-402; Especially Aggravated Robbery: 39-13-403; Drug Offenses: 39-17-417; Any sexual offense as prohibited by title 39, chapter 13, part 5; Any offense involving a firearm prohibited by title 39, chapter 17, part 13, if this subsection is not already an essential element of the offense; Any felony involving a deadly weapon as defined by § 39-11-106(a); and Carjacking as prohibited by § 39-13-404.
An expansion of the Crime Free School Zone Act can potentially be wrought with the same abuse that can occur with the Drug Free School Zone Act. There are areas in Tennessee, such as Metropolitan Nashville/Davidson County, where the entire county essentially serves as a school zone for the purposes of prosecution and enhancement. For example, prosecution for alleged drug activity has included indictment of Defendants using the enhancements of T.C.A. 39-17-432 if the person drives through a school zone, even if the original activity did not take place in a school zone. The potential application of the Crime Free School Zone Act and the Drug Free School Zone act can be far reaching and outside the scope of the original intent. Clarification is necessary to fulfill the original purpose and ensure proper application.
Concluding Thoughts
As challenging as the legislative process can be, this session will certainly match if not dwarf previous challenges. On behalf of the organization, I welcome your comments and assistance to ensure a fair, impartial and effective system.