40-11-150 - Determination of risk to victim prior to release Conditional release Discharge of conditions Notification to law enforcement. - Tennessee Statutes

40-11-150. Determination of risk to victim prior to release Conditional release Discharge of conditions Notification to law enforcement.

(a)  In addition to the factors set out in § 40-11-118, in making a decision concerning the amount of bail required for the release of a defendant who is arrested for the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(7), (10), or (11), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, the magistrate shall review the facts of the arrest and detention of the defendant and determine whether the defendant is:

     (1)  A threat to the alleged victim;

     (2)  A threat to public safety; and

     (3)  Reasonably likely to appear in court.

(b)  Before releasing a person arrested for or charged with an offense specified in subsection (a), or a violation of an order of protection, the magistrate shall make findings on the record, if possible, concerning the determination made in accordance with subsection (a), and shall impose one (1) or more conditions of release or bail on the defendant to protect the alleged victim of any such offense and to ensure the appearance of the defendant at a subsequent court proceeding. The conditions may include:

     (1)  An order enjoining the defendant from threatening to commit or committing specified offenses against the alleged victim;

     (2)  An order prohibiting the defendant from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, either directly or indirectly;

     (3)  An order directing the defendant to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;

     (4)  An order prohibiting the defendant from using or possessing a firearm or other weapon specified by the magistrate;

     (5)  An order prohibiting the defendant from possession or consumption of alcohol or controlled substances; and

     (6)  Any other order required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.

(c)  Concurrent with the imposition of one (1) or more conditions of release, the magistrate shall:

     (1)  Issue a written order for conditional release containing the conditions of the release on a form prepared by the administrative office of the courts, in consultation with the Tennessee task force against domestic violence, and distributed to judges and magistrates by the administrative office of the courts;

     (2)  Immediately distribute a copy of the order to the law enforcement agency having custody of the defendant, which agency shall file and maintain the order in the same manner as is done for orders of protection; and

     (3)  Provide the law enforcement agency with any available information concerning the location of the victim in a manner that protects the safety of the victim.

(d)  The law enforcement agency having custody of the defendant shall provide a copy of the conditions to the defendant upon the defendant's release. Failure to provide the defendant with a copy of the conditions of release does not invalidate the conditions if the defendant has notice of such conditions.

(e)  If conditions of release are imposed without a hearing, the defendant may request a prompt hearing before the court having jurisdiction of the offense for which the defendant was arrested or is charged to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.

(f)  When a defendant who is arrested for or charged with an offense specified in subsection (a) or with a violation of an order of protection is released from custody, the law enforcement agency having custody of the defendant shall:

     (1)  Use all reasonable means to immediately notify the victim of the alleged offense of the release and of the address and telephone number of the nearest source of assistance to victims of domestic violence, including, but not limited to, shelters, counseling centers or other appropriate community resources; and

     (2)  Send the victim at the victim's last known address a copy of any conditions of release. If the victim is present at the time the conditions are imposed, a copy of the conditions may be given to the victim at that time; provided, that failure to furnish the victim a copy of any conditions of release shall not constitute negligence per se by the law enforcement agency.

(g)  Release of a defendant who is arrested for or charged with a crime specified in subsection (a) or with a violation of an order of protection shall not be delayed because of the requirements of subsection (f).

(h)  (1)  Any offender arrested for the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the alleged victim is a victim as defined in § 36-3-601, shall not be released within twelve (12) hours of arrest if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim. The official may, however, release the accused in less than twelve (12) hours if the official determines that sufficient time has or will have elapsed for the victim to be protected.

     (2)  The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of the arrest in order to establish the beginning of the twelve-hour period provided for in this subsection (h).

(i)  (1)  A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.

     (2)  If the violation of the condition or release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.

(j)  (1)  If a defendant upon whom conditions of release have been imposed pursuant to this section is for any reason discharged or released from those conditions, the discharging or releasing court shall notify all law enforcement agencies within its jurisdiction that the defendant is no longer subject to the conditions originally imposed.

     (2)  The administrative office of the courts, in consultation with the domestic violence state coordinating council, shall prepare a discharge from conditions of release notification form to send to law enforcement agencies as required by subdivision (j)(1) and shall distribute the form to all courts with the authority to discharge or release a defendant from conditions of release.

(k)  (1)  Any offender arrested for a violation of § 71-6-119, involving physical harm or abuse in which the alleged victim is an adult of advanced age as those terms are defined in § 71-6-102, shall not be released within twelve (12) hours of arrest if the official authorized to set bail in the case finds that the offender would be a continued threat to the alleged victim if released within the twelve-hour period. The official may, however, release the accused in less than twelve (12) hours if the official determines that sufficient time has or will have elapsed for the victim to be protected.

     (2)  The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of the arrest in order to establish the beginning of the twelve-hour period provided for in this subsection (k).

     (3)  (A)  A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.

          (B)  If the violation of the condition of release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.

[Acts 1995, ch. 410, § 1; 1996, ch. 710, § 1; 1997, ch. 487, § 1; 1999, ch. 128, §§ 1, 2; 1999, ch. 138, §§ 1-3; 2000, ch. 633, § 1; 2001, ch. 309, §§ 1-5; 2004, ch. 780, § 1; 2005, ch. 482, §§ 5, 6; 2006, ch. 920, §§ 5, 6; 2008, ch. 868, § 4.]