|Legal Opinion: |
Text of Document: You asked for a written opinion on the following question: Does Tennessee Code Annotated, section 55-50-502(a)(11) prohibit the arresting officer from taking drivers licenses in municipal traffic ordinance violation case to insure the appearance of the violators in court? The answer is both yes and no, but there is another statutory limitation on the authority of officers to arrest in traffic cases that weigh into the answer.
Municipal Police Officers Cannot "Seize" Drivers Licenses
Tennessee Code Annotated, section 55-50-502(a)(11) declares it unlawful for a municipal police officer "to seize the license of an operator or chauffeur for a traffic offense in violation of a municipal ordinance or a traffic offense as provided in chapter 8 of this title." [Emphasis is mine] Chapter 8 covers a wide range of state law rules of the road upon which most municipal traffic ordinance violations are based; therefore, a municipal police officer cannot seize the drivers license of a person charged with either a municipal traffic offense or a state law violation of any of the offenses listed in Tennessee Code Annotated, title 55, chapter 8. In that respect, the answer is yes.
Municipal Police Officers Can Give Specific Class of Traffic Offenders the "Option" of Depositing Drivers License in Lieu of Bail
Under Tennessee Code Annotated, section 55-50-801 et seq., a municipality may by ordinance give an out-of-state or District of Columbia resident the option of depositing his or her drivers license in lieu of bail "with the officer or court demanding bail in lieu of any other security required for her appearance in any court of the municipality..." This statute is not in conflict with Tennessee Code Annotated, section 55-50-502(a)(11), because under it the officer or the court makes no seizure of the traffic offender's drivers license. The traffic offender has the "option" of depositing his or her drivers license in lieu of bail; whether the traffic offender does so is entirely up to him or her. In fact, if the traffic offender elects to deposit his or her drivers license in lieu of bail, the officer or court gives the traffic offender a receipt for the license which the traffic offender voluntarily surrenders, which receipt serves as a temporary drivers license. In that respect, the answer is no.
General Restriction Upon the Arrest of Misdemeanants--Citation in Lieu of Continued Custody
Tennessee Code Annotated, section 40-7-118 severely restricts the traffic (and other) minor offenses for which arrests can be made. It requires peace officers to issue citations in lieu of continued custody in misdemeanor cases except for certain prescribed offenses. In the area of traffic those prescribed exceptions include only DUI, and driving on a suspended or revoked license.
However, under that statute police officers can still make arrests in all cases, including traffic violations, but only if:
1. The person needs medical examination or treatment, or is unable to care for his or her own safety;
2. There is "reasonable likelihood" the offense will continue or resume, or that person or property would be endangered by the arrested person;
3. The person arrested will not offer satisfactory proof of identification;
4. The prosecution of the offense will be jeopardized;
5. A reasonable likelihood exists that the arrested person will fail to appear in court [Emphasis is mine];
6. The person demands to be taken immediately before a magistrate;
7. The person is so intoxicated he would be a danger to himself or to others;
8. There are one or more outstanding warrants against the person.
Obviously, the only one of those provisions that permits the officer to arrest a person for a minor traffic violation solely on the grounds that the person will not appear in court is number 5. Unfortunately, it is not clear what constitutes a "reasonable likelihood" that the person will not appear in court. The threshold question here is whether the arresting officer has to make that determination on an individual case-by-case basis or whether the city can adopt regulations defining the term. If the city can adopt regulations defining the term, it might define it on the basis of residency of the traffic violator. Arguably, the fact that the arrested person is a nonresident of the state might do it. The same, if lesser, compelling, argument might be made about nonresidents of the county or even the city. In any case, the city will be plowing new ground in this area.
Note that under Tennessee Code Annotated, section 40-7-118, the failure to appear after having been issued a citation in lieu of continued custody appears to be a state offense. In other words, the traffic offender could be charged on a state warrant for failure to appear. Unfortunately, however legally attractive that may sound, it may not be practically attractive. That is an expensive way to compel appearance.
We can sit down and try to figure out the best approach to take on this problem and go from there. Let me know what you want to do.
Sidney D. Hemsley
Senior Law Consultant