|Legal Opinion: |
Text of Document: October 7, 1992
Your question is, can the city judge take the license of person
between the ages of 18-21 for the purchase or attempt to purchase, or possession of, beer?
My initial research led me to believe that the answer was yes.
However, in light of State v. Barrett, 17 TAM 40-2 (Filed Sept. 28, 1992), and one word in
Tennessee Code Annotated, § 57-3-301(c), I have changed my mind.
That statute is the product of Public Acts 1991, Chapter 473.
Difficult to figure out, the pertinent parts [(d)(1)(B)(i)] provide that:
In addition to any criminal penalty established in this section, a court in which a person younger
than twenty-one (21) years of age but eighteen (18) years of age or older is convicted of the
purchase or attempt to purchase or possession of beer in violation of this section shall prepare
and send to the department of safety, driver control division within five (5) working days of the
conviction an order of denial of driving privileges for the offender.
The court and the department of safety shall follow the same procedures and utilize the same
sanctions and costs for an offender younger than twenty-one (21) years of age but eighteen
(18) years of age or older as provided in title 55, chapter 10, part 7, for offenders younger than
eighteen (18) years of age but thirteen (13) years of age or older.
I was prepared to analyze that statute for you in conjunction with
Tennessee Code Annotated, title 55, chapter 10, part 7, but in light of the language "criminal"
penalty in the first line quoted above, it isn't necessary.
Several recent cases involving municipal courts make it clear that
such courts impose civil penalties rather than criminal penalties. In fact, one Tennessee Court
of Appeals likened the collection of municipal court fines by the municipality with the collection
of a grocery bill by a merchant. However, Tennessee Code Annotated, § 57-3-2301(c), makes
the forfeiture of the driver license an addition to any criminal penalty.
A municipal court judge, sitting as a municipal court hearing ordinance
violation cases for the purchase or attempt to purchase, or possession of, beer on the part of
a person 18-21 years of age does not issue criminal penalties for such violations. That is true
even where the municipality has adopted as local misdemeanors, those offenses defined as
misdemeanors under state law. The adoption of such misdemeanors converts the offense i
nto an ordinance violation rather than a state law violation. A civil penalty attaches to the former,
a criminal penalty to the latter.
Section 6-4-301 of the city's charter grants the municipal judge
concurrent with courts of general sessions in criminal cases. I initially thought that in that capacity
he would have the authority to issue criminal penalties for the offenses noted, following which
he could seize an offender's license. However, the Tennessee Supreme Court on September 28,
1992 declared that municipal courts that have been granted concurrent jurisdiction are inferior courts
within the meaning of Article VI, § 4 of the Tennessee Constitution, and that the judges of
inferior courts are required to be elected to a term of eight year and to meet certain other
qualifications contained in Article VI, § 4. Because your municipal judge doesn't meet those
qualifications, he can't hear state cases and impose criminal penalties.
That probably leaves the general sessions court in your county as
the next highest court that can issue criminal penalties and to seize driver licenses for the offenses
Sidney D. Hemsley
Senior Law Consultant