33-10-407 - Persons intoxicated or incapacitated by alcohol County provision of treatment and housing in lieu of arrest. - Tennessee Statutes

33-10-407. Persons intoxicated or incapacitated by alcohol County provision of treatment and housing in lieu of arrest.

(a)  Any county may, pursuant to this part, provide facilities and services for the treatment or housing, or both, of a person intoxicated or incapacitated, or both, by alcohol in lieu of arrest. In such county or counties, when any person is intoxicated or incapacitated by alcohol and is clearly dangerous to the health and safety of the person or others, the person may be taken into protective custody by law enforcement authorities or custodial health officers, acting with probable cause, and taken to an approved treatment or social services facility. For purposes of determining whether a person is clearly dangerous to the person's health and safety, the degree of intoxication alone is sufficient, if the enforcement officer reasonably believes that the individual is unable to avoid severe impairment or injury from specific risks by or as a result of intoxication.

(b)  In determining whether a person should be taken to a treatment or social services facility in lieu of arrest under subsection (a), the law enforcement officer or custodial health officer shall consider all of the following:

     (1)  Whether the person is likely to engage in a violation of the law while being transported to the treatment or social services facility or while at the facility;

     (2)  The type of services available at the treatment or social services facility that are not readily available at the jail to which the person would be taken upon arrest;

     (3)  Whether the treatment or social services facility has space available; and

     (4)  The amenability of the person to the treatment or services provided by the treatment or social services facility.

(c)  A law enforcement officer or custodial health officer, in detaining the person, is taking the person into protective custody. In so doing, the detaining officer may use reasonable protective methods but shall make every reasonable effort to protect the detainee's health and safety. A taking into protective custody under this section is not an arrest and no entry or other records shall be made to indicate that the person has been arrested or charged with a crime. Any warrantless search conducted under this part is strictly limited by the circumstances justifying the search. A law enforcement officer or custodial health officer who acts in compliance with this section is acting in the course of official duties and shall not be held criminally or civilly liable for the officer's actions.

(d)  The law enforcement officer or custodial health officer shall, upon presenting the detained person to the treatment or social services facility, make written application for the detainee's evaluation and treatment at the facility. The application shall be directed to the administrator of the facility and shall state the circumstances requiring evaluation, detention and treatment, including the applicant's personal observations and the specific statements of other persons having relevant knowledge of the person's intoxication or incapacitation, or both, and the danger posed to the person or others, upon which the officer relies in initially detaining the person and in making the application. A copy of the application shall be furnished to the person to be detained. The facility may adopt policies governing the eligibility and criteria for admission.

(e)  (1)  If the approved treatment or social services facility administrator or the administrator's designee, after examination by a health professional for the purpose of determining whether the person is intoxicated or incapacitated, or both, by alcohol, approves the application consistent with purposes of this part and the admission policies, the person may be detained for evaluation and treatment for such period of time as the grounds for the detention as stated in the application for admission exist.

     (2)  However, without regard to the decision of the facility administrator, all persons detained under this part shall be presented to a magistrate or judicial commissioner without unnecessary delay, for the purpose of determining whether the person can be held and treated pursuant to this part. Also, without regard to the decision of the facility administrator or magistrate or judicial commissioner, any person who refuses treatment or evaluation or requests release shall be released immediately, unless the person is detained in accordance with chapter 6, part 4 of this title.

(f)  If the approved treatment or social services facility administrator, or the administrator's designee or the magistrate or judicial commissioner determines that the application fails to sustain the grounds for detention as set forth in subsection (a), the application for detention shall be refused and the person detained shall be immediately released and the person shall be encouraged to seek voluntary treatment, if appropriate.

(g)  When the administrator, based upon the recommendation of the health professional, determines that the grounds for commitment no longer exist, the administrator shall discharge the person committed under this section, unless the person seeks and obtains voluntary treatment under § 33-6-201.

(h)  In those cases where involuntary commitment becomes necessary, such commitments shall be governed by chapter 3, part 6 of this title.

[Acts 1990, ch. 639, § 6; 1991, ch. 376, § 4; 1993, ch. 234, § 8; T.C.A., § 33-8-507; Acts 2000, ch. 947, §§ 8A, 8E; 2009, ch. 186, § 32; T.C.A. § 68-24-507.]