(3) For purposes of this section, a person who is convicted of a violation of § 55-10-401 shall not be considered a repeat or multiple offender and subject to the penalties prescribed in subsection (a), if ten (10) or more years have elapsed between such conviction and any immediately preceding conviction for a violation. If, however, a person has been convicted of a violation of § 55-10-401 within ten (10) years of the present violation, then such person shall be considered a multiple offender and is subject to the penalties imposed upon multiple offenders by the provisions of subsection (a). If a person is considered a multiple offender under this subdivision (a)(3), then every conviction for a violation of § 55-10-401, within ten (10) years of the immediately preceding violation shall be considered in determining the number of prior offenses, but in no event shall a conviction for a violation occurring more than twenty (20) years from the date of the instant conviction be considered for such purpose. (4) (A) If the court orders participation in an inpatient alcohol and drug treatment program pursuant to subdivision (a)(1), such treatment program shall not exceed a period of twenty-eight (28) days. During this period of confinement in inpatient treatment, the person ordered to participate shall be confined to the inpatient treatment center and shall not, without further court order, be released for any reason until the completion of the treatment. In the event such person does not complete the confinement in the treatment program, that person shall be returned to the county jail or workhouse to serve the full period of the confinement imposed without any credit allowed for time spent in the program. Upon completion of the confinement in the program, the remainder of the confinement imposed shall be served in the county jail or workhouse.

(B) The court is not empowered to order the expenditure of public funds to provide treatment. However, if a person ordered to participate in such a program is indigent, the court may allow such person, subject to availability of services, to enter any program that provides such treatment without cost to an individual. When making a finding as to the indigency of an accused, the court shall take into consideration:

(i) The nature of the services of the program rendered;

(ii) The usual and customary charges for rendering such program in the community;

(iii) The income of the accused regardless of source;

(iv) The poverty level guidelines compiled and published by the United States department of labor;

(v) The ownership or equity of any real or personal property of the accused; and

(vi) Any other circumstances presented to the court which are relevant to the issue of indigency. If a person ordered to participate is not indigent and participates in a program that provides treatment without cost to an individual, that person shall be obligated to pay for treatment in the same manner as provided in § 33-2-1202. If a person ordered to participate, participates in a court approved private treatment program, that person shall be responsible for the cost and fees involved with the program.

(b) (1) No person charged with violating the provisions of §§ 55-10-401 -- 55-10-404 shall be eligible for suspension of prosecution and dismissal of charges pursuant to the provisions of §§ 40-15-102 -- 40-15-105 and 40-32-101(a)(3)-(c)(3) or for any other pretrial diversion program, in this state or a similar offense in another state; and (iii) The person does not have a prior conviction for a violation of nor shall any person convicted under such sections be eligible for suspension of sentence or probation pursuant to § 40-21-101 [repealed] or any other provision of law authorizing suspension of sentence or probation until such time as such person has fully served day for day at least the minimum sentence provided by law. (2) Unless the judge, using the applicable criteria set out in § 40-14-202(b), determines that a person convicted of violating the provisions of §§ 55-10-401 -- 55-10-404 is indigent, the minimum applicable fine shall be mandatory and shall not be subject to reduction or suspension.

All fines are to be paid on the date sentence is imposed unless the court makes an affirmative finding that the defendant lacks a present ability to pay. The court shall then order a date certain before which payment shall be made. Should the defendant fail to comply with the order of the court, the clerk shall notify the court of such failure for further proceedings. (c) All persons sentenced under subsection (a) shall, in addition to service of at least the minimum sentence, be required to serve the difference between the time actually served and the maximum sentence on probation. The judge has the discretion to impose any conditions of probation which are reasonably related to the offense, but shall impose the following conditions: (1) Participation in an alcohol and drug safety DWI school, and/or drug offender school program, if available; or (2) Upon the second or subsequent conviction for violating the provisions of § 55-10-401 or § 39-17-418, involving the possession of a controlled substance, participation in a program of rehabilitation at an alcohol or drug treatment facility, if available; and (3) The payment of restitution to any person suffering physical injury or personal losses as the result of such offense if such person is economically capable of making such restitution. (4) Notwithstanding any other provision of law to the contrary, if a person convicted of a violation of § 55-10-401 has a prior conviction for a violation of § 55-10-401 within the past five (5) years, the court shall order such person to undergo a drug and alcohol assessment and receive treatment as appropriate.

Unless the court makes a specific determination that the person is indigent, the expense of such assessment and treatment shall be the responsibility of the person receiving it. Notwithstanding the provisions of subdivision (a)(4)(B), if the court finds that the person is indigent, the expense or some portion of the expense may be paid from the alcohol and drug addiction treatment fund established in § 40-33-211(c)(2) pursuant to a plan and procedures developed by the department of health. (d) (1) (A) Except as provided in subdivision (d)(2), if a person's motor vehicle operator's license has been revoked pursuant to subsection (a), such person may apply to the trial judge for a restricted driver license. The trial judge may order the issuance of a restricted motor vehicle operator's license in accordance with § 55-50-502, if based upon the records of the department of safety: (i) The violation resulting in the person's present conviction for driving under the influence of an intoxicant occurred on or after July 1, 2000; (ii) The person does not have a prior conviction for a violation of § 39-13-106, § 39-13-213(a)(2), or § 39-13-218§ 55-10-401 or § 55-10- or 418 within ten (10) years of the present violation in this state or a similar offense in another state. (iv) The trial judge may issue such order allowing the person so convicted to operate a motor vehicle for the limited purposes of going to and from: (a) Such person's regular place of employment and any work-related driving; (b) A court-ordered alcohol safety program; (c) A college or university in the case of a student enrolled full time in such college or university; (d) A scheduled interlock monitoring appointment; and (e) A court-ordered outpatient alcohol or drug treatment program.

(B) (i) A Tennessee resident, whose operator's license has been revoked because of a conviction in another jurisdiction for operating a motor vehicle while under the influence of an intoxicant, may apply for a restricted license to a judge of any court of the county of such person's residence having jurisdiction to try charges for driving under the influence of an intoxicant. The trial judge may order the issuance of a restricted motor vehicle operator's license in accordance with § 55-50-502(c), if based upon the records of the department: (a) The violation resulting in the person's present conviction for driving under the influence of an intoxicant occurred on or after July 1, 2000; and (b) The person does not have a prior conviction for a violation of § 55-10-401 § 55-10-418 within ten (10) years of the present violation, or of § 39-13-213(a)(2), § 39-13-218, or § 39-13-106, in this state, or a similar offense in another jurisdiction. (ii) If a copy of the judgment of conviction certified by the court that tried the case in the other jurisdiction accompanies the restricted license application, the trial judge may issue such order allowing the person so convicted to operate a motor vehicle for the limited purposes of going to and from: (a) And working at such person's regular place of employment; (b) A court-ordered alcohol safety program; (c) A college or university in the case of a student enrolled full time in such college or university; (d) A scheduled interlock monitoring appointment; and (e) A court-ordered outpatient alcohol or drug treatment program.

(C) Such order shall state with all practicable specificity the necessary time and places of permissible operation of a motor vehicle and shall be made a part of the order or judgment of the court. The order may be presented within ten (10) days after the date of conviction to the department, accompanied by a fee of sixty-five dollars ($ 65.00). If the person has first successfully completed a driver's license examination, the department shall forthwith issue a or restricted license embodying the limitations imposed upon the person so convicted.

(D) If the violation resulting in the person's conviction for DWI occurred prior to July 1, 2000, the law in effect when such violation occurred shall govern the person's eligibility for a restricted motor vehicle operator license. (2) If during the course of conduct which was the basis for a driver's conviction under , another person is killed or suffers serious bodily injury as the proximate result of such driver's intoxication, such driver shall not be eligible for and the court shall not have the authority to grant the issuance of a restricted motor vehicle operator's license until such time as the period of suspension mandated by subsection (a) has expired, notwithstanding the fact that it may be the driver's first such conviction. (3) Any person whose motor vehicle operator's license has been revoked pursuant to subsection (a), and such person has a prior conviction for a violation of within ten (10) years of the present violation, or -- , in this state, or a similar offense in any other jurisdiction, shall not be eligible for, nor shall the court have the authority to grant or order, the issuance of a restricted motor vehicles' operator's license.

(4) (A) Notwithstanding the provisions of subdivision (d)(3), the trial judge may order the issuance of a restricted motor vehicle operator's license in accordance with §§ 55-10-401 55-10-404§ 55-10-401 § 55-10-418 § 39-13-106, § 39-13-213(a)(2), or § 39-13-218§ 55-50-502 to any person whose motor vehicle operator's license has been revoked pursuant to subsection (a) for a period of two (2) years and who has a prior conviction for a violation of § 55-10-401 or § 55-10-418, in this state or a similar offense in any other jurisdiction; provided, however, that such person shall not be eligible for and the court shall not have the authority to grant the issuance of a restricted motor vehicle operator's license until the expiration of a one (1) year revocation period. Such restricted license may be issued for the same purposes set out in subdivision (d)(1)(A). (B) If the court orders the issuance of a restricted motor vehicle operator's license pursuant to this subdivision (d)(4), the court shall also order such person to operate only a motor vehicle or motorcycle that is equipped with a functioning interlock device. The court shall also order such device to be installed on all vehicles owned or leased by the person at such person's own expense for the entire period of the restricted license and for a period of six (6) months after the license revocation period has expired as required in § 55-10-412( l).

(e) The provisions of this section shall not be construed to in any way limit the provisions of § 55-50-303 or § 55-50-502, nor to limit the power and authority of the department of safety to revoke or suspend the driver license under the provisions of chapter 50 of this title.

(f) Any restricted license issued under this section is subject to renewal in the same manner as other motor vehicle licenses.

(g) (1) Any person convicted of an initial or subsequent offense shall be advised, in writing, of the penalty for second and subsequent convictions, and, in addition, when pronouncing sentence the judge shall advise the defendant of the penalties for additional offenses. Written notice by the judge shall inform the defendant that a conviction for the offense of driving under the influence of an intoxicant committed in another state shall be used to enhance the punishment for a violation of § 55-10-401 committed in this state. (2) In the prosecution of second or subsequent offenders, the indictment or charging instrument must allege the prior conviction or convictions for violating any of the provisions of § 55-10-401, § 39-13-213(a)(2), § 39-13-106, § 39-13-218 or § 55-10-418, setting forth the time and place of each prior conviction or convictions. When the state uses a conviction for the offense of driving under the influence of an intoxicant, aggravated vehicular homicide, vehicular homicide, vehicular assault or adult driving while impaired committed in another state for the purpose of enhancing the punishment for a violation of § 55-10-401, the indictment or charging instrument must allege the time, place and state of such prior conviction. (3) (A) Notwithstanding any other rule of evidence or law to the contrary, in the prosecution of second or subsequent offenders under this chapter the official driver record maintained by the department and produced upon a certified computer printout shall constitute prima facie evidence of the prior conviction.

(B) Following indictment by a grand jury, the defendant shall be given a copy of the department of safety printout at the time of arraignment. If the charge is by warrant, the defendant is entitled to a copy of the department printout at the defendant's first appearance in court or at least fourteen (14) days prior to a trial on the merits. (C) Upon motion properly made in writing alleging that one (1) or more prior convictions are in error and setting forth the error, the court may require that a certified copy of the judgment of conviction of such offense be provided for inspection by the court as to its validity prior to the department printout being introduced into evidence.

(h) (1) In addition to all other fines, fees, costs and punishments now prescribed by law, in counties having a population of not less than three hundred thirty-five thousand (335,000) nor more than three hundred thirty-six thousand (336,000), or in counties having a population of more than seven hundred thousand (700,000) according to the 1990 federal census or any subsequent federal census, a blood alcohol concentration (BAT) test fee in the amount of seventeen dollars and fifty cents ($ 17.50) will be assessed upon conviction of an offense of driving while intoxicated, for each offender who has taken a breath-alcohol test on an evidential breath testing unit provided, maintained and administered by a law enforcement agency in the counties or where breath, blood or urine has been analyzed by a publicly funded forensic laboratory.

(2) In addition to all other fines, fees, costs and punishments now prescribed by law, in counties having a metropolitan form of government with a population greater than one hundred thousand (100,000) according to the 1990 federal census or any subsequent federal census, a blood alcohol concentration (BAT) test fee in an amount to be established by resolution of the legislative body of any county to which this subdivision (h)(2) applies, not to exceed fifty dollars ($ 50.00), will be assessed upon conviction of an offense of driving while intoxicated, for each offender who has taken a breath-alcohol test on an evidential breath testing unit provided, maintained and administered by a law enforcement agency in the counties or where breath, blood or urine has been analyzed by a publicly funded forensic laboratory.

(3) This fee shall be collected by the clerks of various courts of the counties and forwarded to the county trustee on a monthly basis and designated for exclusive use by the law enforcement testing unit of the counties if the blood alcohol concentration test (BAT) was conducted on an evidential breath testing unit. If the blood alcohol test was conducted by a publicly funded forensic laboratory, the fee shall be collected by the clerks of the various courts of the counties and forwarded to the county trustee on a monthly basis and designated for exclusive use by the publicly funded forensic laboratory.

(4) In counties having a metropolitan form of government with a population greater than one hundred thousand (100,000) according to the 1990 federal census or any subsequent federal census, this fee shall be collected by the clerks of the various courts of the counties and forwarded to the county trustee on a monthly basis. If the blood alcohol concentration test (BAT) was conducted on an evidential breath testing unit, seventeen dollars and fifty cents ($ 17.50) of such fee shall be designated for exclusive use by the law enforcement testing unit of the county. The county trustee shall deposit the remainder of such fee in the general fund of the county. If the blood alcohol test was conducted by a publicly funded forensic laboratory, seventeen dollars and fifty cents ($ 17.50) of such fee collected by the clerks of the various courts of the counties and forwarded to the county trustee on a monthly basis shall be designated for exclusive use by the publicly funded forensic laboratory. The county trustee shall deposit the remainder of such fee in the general fund of the county.

(i) In addition to all other criminal penalties, costs, taxes and fees now prescribed by law, any person convicted of violating the provisions of §§ 55-10-401 -- 55-10-404 will be assessed a fee of five dollars ($ 5.00), to be paid into the state treasury and deposited to the credit of the fund established pursuant to § 9-4-206.

(j) No person arrested under the provisions of this section shall be subjected to strip searches and/or body cavity searches unless the arresting officer has probable cause to believe the arrested person may be concealing a weapon and/or contraband in such arrested person's body cavity. Contraband includes, but is not limited to, illegal drugs.

(k) (1) The vehicle used in the commission of a person's second or subsequent violation of § 55-10-401, or the second or subsequent violation of any combination of § 55-10-401, and a statute in any other state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, part 2. The department of safety is designated as the applicable agency, as defined by § 40-33-202, for all forfeitures authorized by this subsection (k). (2) In order for the provisions of subdivision (k)(1) to be applicable to a vehicle, the violation making the vehicle subject to seizure and forfeiture must occur in Tennessee and at least one (1) of the previous violations must occur on or after January 1, 1997, and the second offense after January 1, 1997, occurs within five (5) years of the first offense occurring after January 1, 1997.

(3) It is the specific intent that a forfeiture action under this section shall serve a remedial and not a punitive purpose. The purpose of the forfeiture of a vehicle after a person's second or subsequent DWI violation is to prevent unscrupulous or incompetent persons from driving on Tennessee's highways while under the influence of alcohol or drugs. Driving a motor vehicle while under the influence of alcohol or drugs endangers the lives of innocent people who are exercising the same privilege of riding on the state's highways. There is a reasonable connection between the remedial purpose of this section, ensuring safe roads, and the forfeiture of a motor vehicle. While this section may serve as a deterrent to the conduct of driving a motor vehicle while under the influence of alcohol or drugs, it is nonetheless intended as a remedial measure. Moreover, the statute serves to remove a dangerous instrument from the hands of individuals who have demonstrated a pattern of driving a motor vehicle while under the influence of alcohol or drugs.

(4) Only P.O.S.T.-certified or state-commissioned law enforcement officers will be authorized to seize such vehicles under this section. ( l) For the purpose of enhancing the punishment of a person convicted of violating § 55-10-401, the state shall use a conviction for the offense of driving under the influence of an intoxicant that occurred in another state.

(m) A violation of this part is a Class A misdemeanor. Nothing in Acts 1989, ch. 591, the Sentencing Reform Act of 1989, shall be construed as altering, amending or decreasing the penalties established in this section for the offense of driving under the influence of an intoxicant.

(n) Notwithstanding the provisions of this section to the contrary, in counties with a metropolitan form of government and a population in excess of one hundred thousand (100,000) according to the 1990 federal census or any subsequent federal census, the judge exercising criminal jurisdiction may sentence a person convicted of violating the provisions of § 55-10-401, for the first time to perform two hundred (200) hours of public service work in a supervised public service program in lieu of the minimum period of confinement required by the provisions of subsection (a).

(o) For the sole purpose of enhancing the punishment for a violation of § 55-10-401, a prior conviction for a violation of § 39-13-213(a)(2), § 39-13-106, § 39-13-218 or § 55-10-418, shall be treated the same as a prior conviction for a violation of § 55-10-401.

(p) (1) An offender sentenced to a period of incarceration for a violation of § 55-10-401, shall be required to commence service of such sentence within thirty (30) days of conviction or, if space is not immediately available in the appropriate municipal or county jail or workhouse within such time, as soon as such space is available. If, in the opinion of the sheriff or chief administrative officer of a local jail or workhouse, space will not be available to allow an offender convicted of a violation of § 55-10-401, to commence service of such sentence within ninety (90) days of conviction, such sheriff or administrative officer shall use alternative facilities for the incarceration of such offender.

If an offender convicted of a violation of § 55-10-401, prior to July 1, 1995, has not commenced service of the sentence imposed within ninety (90) days of such offender's conviction, the sheriff or administrative officer shall, after notifying the offender, use alternative facilities for the incarceration of such offender. The appropriate county or municipal legislative body shall approve the alternative facilities to be used in such county or municipality.

(2) As used in this subsection (p), "alternative facilities" include, but are not limited to, vacant schools or office buildings or any other building or structure owned, controlled or used by the appropriate governmental entity that would be suitable for housing such offenders for short periods of time on an as-needed basis. A governmental entity may contract with another governmental entity or private corporation or person for the use of alternative facilities when needed and governmental entities may, by agreement, share use of alternative facilities. (3) Nothing in this subsection (p) shall be construed to give an offender a right to serve a sentence for a violation of § 55-10-401, in an alternative facility or within a specified period of time. Failure of a sheriff or chief administrative officer of a jail to require an offender to serve such a sentence within a certain period of time or in a certain facility or type of facility shall have no effect upon the validity of the sentence.

(q) Notwithstanding any other law to the contrary, in any county having a population of not less than three hundred seven thousand eight hundred (307,800) nor more than three hundred seven thousand nine hundred (307,900), according to the 2000 federal census or any subsequent federal census, upon conviction for a violation of § 55-10-401, § 55-10-415, § 55-10-418 or § 55-50-408, the court shall assess against the defendant a blood alcohol concentration (BAT) test fee to be established by the county legislative body of any county to which this subsection (q) applies in an amount not to exceed fifty dollars ($ 50.00) for obtaining a blood sample for the purpose of performing a test to determine the alcoholic or drug content of the defendant's blood pursuant to § 55-10-406 that is incurred by the governmental entity served by the law enforcement agency arresting the defendant. The fee authorized by this subsection (q) shall only be assessed if a blood sample is actually taken from a defendant convicted of any such offenses and the test is actually performed on such sample.

(r) (1) In addition to all other fines, fees, costs and punishments now prescribed by law, an alcohol and drug addiction treatment fee of one hundred dollars ($ 100) shall be assessed for each conviction for a violation of § 55-10-401. (2) All proceeds collected pursuant to subdivision (r)(1) shall be transmitted to the commissioner of the department of health for deposit in the special "alcohol and drug addiction treatment fund" administered by such department.

(s) (1) In addition to the punishment provided in subsection (a), a person convicted of violating the provisions of § 55-10-401 for the first time, shall be punished as follows: (A) If the person is less than twenty-one (21) years of age at the time of the offense, the court shall sentence the person to confinement in the county jail or workhouse for not less than forty-eight (48) hours nor more than eleven (11) months and twenty-nine (29) days, and to remove litter during daylight hours from state route highways or state-aid highways, as provided in subdivisions (s)(2)-(9), for a period of twenty-four (24) hours, to be served in three (3) shifts of eight (8) consecutive hours each; and (B) If the person is twenty-one (21) years of age or more at the time of the offense, the court shall sentence the person to confinement in the county jail or workhouse for not less than twenty-four (24) hours nor more than eleven (11) months and twenty-nine (29) days, and to remove litter during daylight hours from state route highways or state-aid highways, as provided in subdivisions (s)(2)-(9), for a period of twenty-four (24) hours, to be served in three (3) shifts of eight (8) consecutive hours each. (2) A court sentencing an offender, pursuant to either subdivision (s)(1)(A) or (B), shall order such offender to remove litter from public highways for a period of eight (8) consecutive hours a day for three (3) days. Each of such three (3) days shall be considered confinement for purposes of application and payment of the fees set forth in § 8-26-105(a). If the offender is a resident of Tennessee, the litter removal portion of the sentence shall occur in the offender's county of residence. The court shall transmit the name and address of each offender sentenced pursuant to this subsection (s) to the sheriff of the county in which the offender resides. The sheriff of the offender's county of residence shall notify each such offender of the date and time the offender is to report to the county jail for assignment on a litter removal crew. The sheriff shall schedule such assignments so there are no less than five (5) offenders assigned to and participating in a litter removal crew at any particular time, and in such a manner that each offender completes the three (3) days of litter removal within a thirty-day period. The days and times to which offenders are assigned for litter removal shall be days and times that the offender is off from work and will not interfere with such offender's regular employment.

All such assignments shall be made for, and all litter removal crews shall work only during, daylight hours and only on state route highways or state-aid highways. (3) Each offender ordered to remove litter pursuant to this subsection (s) shall be required to wear a blaze orange or other distinctively colored vest with the words "I am a DRUNK DRIVER" stenciled or otherwise written on the back of such vest in letters no less than four inches (4") in height. (4) Offenders sentenced pursuant to this subsection (s) shall be required to furnish their own clothes and food while engaged in litter removal. (5) Upon completion of eight (8) hours of litter removal, the offender shall be permitted to return home until notified by the sheriff of the next date such offender is scheduled for litter removal duty. (6) (A) The sheriff shall be responsible for the supervision, transportation and control of all offenders sentenced to litter removal duty. It shall be within the discretion of the sheriff to select the state route highways or state-aid highways from which such offenders remove litter. If the highway selected is a state route highway, the department of transportation shall provide a truck or trucks to remove the litter removed by such offenders. If the highway selected is a state-aid highway, the appropriate county shall provide a truck or trucks to remove the litter removed by such offenders. Regardless of the highway selected, the sheriff shall be responsible for transportation to the litter removal site and the supervision and control of the offenders while on the site.

(B) The sheriff shall cause adequate signage to be placed on the front and back of the litter removal truck, or on the side of the road approaching the litter removal crew, from either direction, stating that it is a "'DWI Litter Pickup Crew". Such signage shall be of sufficient size and visibility to permit motorists using such road, in either direction, to readily ascertain the reason for and purpose of the litter removal crew. (7) The sheriff may enter into agreements with any city or municipality located within such county, whereby offenders sentenced pursuant to this subsection (s) may be used to remove litter from state route highways or state-aid highways located within the limits of such city or municipality. The same conditions set out in this subsection (s) shall be applicable to offenders removing litter pursuant to such an agreement. The agreement may provide that the city or municipality assume responsibility for the supervision and control of the offenders. (8) If any entity receives funds under § 41-2-123(c), the offenders shall be the responsibility of the entity supervising that program and under that entity's supervision and control; otherwise, the sheriff shall be responsible for the supervision and control of all offenders sentenced to litter removal duty. (9) No sheriff shall be permitted to use an offender sentenced pursuant to this subsection (s) to perform any task other than litter removal. Jurisdiction of general sessions court.



§ 55-10-404

  

           

 

           

   

     

 

§ 55-10-418

            (a) Effective July 1, 2003, the offense of adult driving while impaired is repealed.

            (b) Nothing in the repeal of the offense of adult driving while impaired shall be construed to prohibit or prevent the use of any conviction for such offense occurring prior to July 1, 2003, for any of the purposes set out in §§ 55-10-403(d)(1)(A)(ii), 55-10-403(d)(1)(B)(i)(b), 55-10-403(d)(3), 55-10-403(g)(2), 55-10-403(o), 55-10-406(a)(3)(A), 55-10-603(2)(A)(x) or 55-50-502(c)(3)(ii).