published Saturday, July 9th, 2011

Law fixes DUI bond problem

House Bill 718
House Bill 718

Updates have resolved problems raised when the Tennessee Legislature passed a law requiring judges to hold second-time DUI offenders without bond.

“I just don’t think that’s right. I don’t think that’s constitutional,” Hamilton County General Sessions Court Judge Clarence Shattuck said.

During the 2010 legislative session, lawmakers passed restrictions aimed at detaining second and subsequent DUI offenders under the auspices of community safety.

The law, which took effect in January, stated that anyone with a previous DUI who was arrested again on the same charge was categorized as a “danger to the community,” regardless of when the other DUI took place or the circumstances of the new arrest.

But the new law smacked against defendants’ constitutional rights, which allow for a bond on noncapital offenses. DUI is a misdemeanor.

“If the Legislature wants to come in and set bonds from Nashville, then we don’t need magistrates in Hamilton County, and that should not be the case,” said local attorney Brian O’Shaughnessy.

So the Legislature amended the law earlier this year to give judges the discretion to take away driving privileges, use alcohol-monitoring equipment and house arrest to address safety concerns rather than keep a DUI defendant in jail.

By the time the Legislature made the change, Hamilton County judges already were using such techniques.

Local magistrates — the on-call rotating judges who set bonds — and Hamilton County General Sessions Court judges discussed the law after it was passed and decided to use discretion and additional restrictions in their sentencing rather than deny bond.

“Having to determine whether a defendant is a danger to the public makes ‘fortune tellers’ out of judges in many cases,” wrote Hamilton County Sessions Court Judge Bob Moon in February. “I have no idea what a defendant is going to do once he or she makes bond or is placed on probation.”

Shattuck said that, until the law was changed, many judges differed in their execution of the law, causing a lot of confusion.

When the law was first passed last year, its problems received almost immediate attention across the state.

In Davidson County Criminal Court, Judge Mark Fishburn ordered the county’s night court commissioners to stop denying bond in such cases.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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