40-6-215 - Summons instead of arrest warrant. - Tennessee Statutes

40-6-215. Summons instead of arrest warrant.

(a)  (1)  As an alternative to an arrest warrant as provided in §§ 40-6-201 40-6-214, the magistrate or clerk may issue a criminal summons instead of an arrest warrant except when an affiant is not a law enforcement officer as defined by § 39-11-106, or none of the affiants in the case of multiple-affiants is a law enforcement officer as defined by § 39-11-106, in which instance the magistrate or clerk shall issue a summons.

     (2)  Notwithstanding the provisions of subdivision (a)(1), the magistrate may issue an arrest warrant instead of a criminal summons if:

          (A)  The offense complained of is a felony, as defined in § 39-11-110, or the offense of stalking, as defined in § 39-17-315;

          (B)  There are multiple-affiants and one or more of the affiants is a law enforcement officer as defined in § 39-11-106;

          (C)  After examination of the affiant and the affidavit of complaint, the magistrate has probable cause to believe that the issuance of a warrant of arrest rather than a criminal summons is necessary to prevent an immediate danger of domestic abuse to a victim as defined in § 36-3-601;

          (D)  The affiant has a written police report concerning the incident for which the arrest warrant is sought or it can be verified that the written report is on file with the appropriate law enforcement agency;

          (E)  A reasonable likelihood exists that the person will fail to appear in court;

          (F)  There are one (1) or more outstanding warrants or criminal summons for the person; or

          (G)  The person cannot, has not or will not offer satisfactory evidence of identification.

(b)  The criminal summons shall be in substantially the same form as an arrest warrant except that it shall summon the defendant to appear before the magistrate or court at a stated time and place. It shall give notice to the person summoned that:

     (1)  The defendant is being charged with a state criminal offense;

     (2)  The summons is being issued in lieu of an arrest warrant;

     (3)  The failure to appear in court on the date and time specified is a separate criminal offense regardless of the disposition of the charge for which the person is originally summoned;

     (4)  Failure to appear for booking and processing is a separate criminal offense;

     (5)  An arrest warrant will issue for failure to appear for court or failure to appear for booking and processing;

     (6)  The failure to appear for court or failure to appear for booking and processing shall be punished as provided in § 39-16-609; and

     (7)  The defendant is encouraged to consult with an attorney about the summons.

(c)  The summons shall be executed in triplicate and shall include a copy of the affidavit of complaint. When the summons is served, the original is to be returned to the court specified in the summons, one (1) copy, including a copy of the affidavit of complaint, given to the person summoned, and one (1) copy to be sent to the sheriff or other law enforcement agency in the county responsible for booking procedures.

(d)  By accepting the summons, the defendant agrees to appear at the sheriff's department, or other law enforcement agency in the county responsible for booking procedures, to be booked and processed as directed by the sheriff's department or other responsible law enforcement agency. If the defendant fails to appear for booking and processing as directed, the court shall issue a bench warrant for that person's arrest. Failure to appear for booking and processing is a separate criminal offense and shall be punished as provided in § 39-16-609.

(e)  The sheriff or other law enforcement agency in the county responsible for serving the summons shall provide the defendant with notice of a court time and date the defendant is to appear. The notice shall be given either at the time the summons is served or at the time the defendant is booked and processed, if booking and processing is ordered to occur prior to the first court date. The court date so assigned shall be not less than ten (10) calendar days nor more than forty-five (45) days from service of the summons or booking and processing, if booking and processing is ordered to occur prior to the first court date. The notice shall be explicit as to where and when the court is to convene and shall advise the defendant that the defendant is encouraged to consult with an attorney about the summons. The court clerk, sheriff, or other law enforcement agency shall provide notice to the affiant, or affiants in the case of multiple-affiants, of the date and time when the defendant is required to appear before the court.

(f)  If the person summoned fails to appear in court on the date and time specified, the court shall issue a bench warrant for the person's arrest. Failure to appear for court is a separate criminal offense and shall be punished as provided in § 39-16-609.

(g)  The summons shall have printed on it in conspicuous block letters the following:

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(h)  Each person receiving a summons under this section shall sign the summons indicating knowledge of the notice in subsection (g). The signing of the summons is not an admission of guilt of the criminal offense charged. The signature of each person creates the presumption of knowledge of the notice and a presumption to violate this section if the person should not appear in court as directed or for booking and processing. If the person to receive the summons refuses to sign and accept the summons, the person shall be taken immediately before a magistrate. The magistrate shall order the terms and conditions of the defendant's release to include the posting of bail as provided by title 40, chapter 11.

(i)  At the initial or any subsequent appearance of a defendant before the court, the judge may order the posting of bail as provided by title 40, chapter 11, as a condition of the continued or further release of the defendant pending the disposition of the summons.

(j)  The criminal summons shall be directed and served as provided by §§ 40-6-209 and 40-6-210 and shall be returned as provided by subsection (c).

(k)  The provisions of this section shall govern all aspects of the issuance of criminal summons, notwithstanding any provision of Rule 4 of the Tennessee Rules of Criminal Procedure to the contrary.

(l)  If any subsection, paragraph, sentence, clause or phrase of this section is for any reason held or declared to be invalid, void, unlawful or unconstitutional, that decision shall not affect the validity of the remaining portions of this section.

(m)  Notwithstanding this section, if the affiant to an affidavit of complaint for a criminal summons is the parent or legal guardian of a child who is the victim of alleged criminal conduct, no criminal summons shall issue to the affiant without the written approval of the district attorney general in the district in which the conduct occurred if:

     (1)  The person the affiant seeks to have issued a criminal summons was an employee of an LEA at the time of the alleged offense; and

     (2)  The affiant alleges that the LEA employee engaged in conduct that harmed the child of the affiant parent or legal guardian and, at the time of the conduct, the LEA employee had supervisory or disciplinary power over the child.

[Acts 1977, ch. 225, § 1; T.C.A., § 40-716; Acts 2003, ch. 366, § 5; 2004, ch. 889, § 2; 2005, ch. 482, § 4; 2009, ch. 390, § 2.]