February 26, 2007
Dear Emergency Management Director:
You have the following questions:
1. Does the “Uniform Booking Act” apply to all cases in which municipal officers charge a person with a state or municipal offense?
2. Can a person arrested for a misdemeanor be taken immediately to the police station (or to which ever law enforcement agency handles the booking for your city) to be booked before he is released?
The answer to the first question is no; it applies only where there has been an arrest.
The answer to the second question is that if a defendant qualifies for the issuance of a citation in lieu of arrest he is not arrested, and the defendants is not booked. If the defendant is arrested for a misdemeanor and he qualifies for a citation in lieu of continued custody, he must be issued such a citation and released, and the booking must be done at a later time.
I will analyze both questions at the same time.
There is no statute in Tennessee entitled the Uniform Booking Act. However, Tennessee Code Annotated, § 8-4-115 requires that “standardized booking procedures” are to be developed by the comptroller in consultation with the TBI, the Tennessee Sheriff’s Association, the Tennessee Association of Chiefs of Police, and the Tennessee Corrections Institute. As far as I can determine from a search of Tennessee’s Administrative Code, it does not appear that anystandardized booking procedures appear therein. However, as I understand the development ofTennessee Code Annotated, § 8-4-115, that statute itself contains the standardized procedures for booking. Under that statute, those standardized booking procedures clearly apply only to “arrestees.”
There are two statutes in Tennessee that provide for citations in lieu of arrest; no booking is contemplated or required in the case of such citations [Tennessee Code Annotated, §§ 7-63-101 and 55-10-207.] But there is also a statute that provides for citations in lieu of continued custody of arrested persons, under which there is a delay between the arrest and the booking [Tennessee Code Annotated, § 40-7-118.] Under that statute, the arrested person is allowed to continue on his way after signing an agreement to be booked at a certain date and time before he makes his court appearance.
Citations in Lieu of Arrest
Tennessee Code Annotated, § 7-63-101 et seq. provides law enforcement officers and certain other municipal personnel to issue citations in lieu of arrest. The offender is required to sign an agreement to appear in order to avoid arrest. However, if the defendant either refuses to sign the agreement to appear or fails to appear after signing the agreement, a warrant is issued (including a warrant for failure to appear if the city has made the failure to appear an offense, or has adopted the state law creating that offense), and the defendant can be booked, bail taken or the offender committed to jail [Tennessee Code Annotated, §§ 7-63-104 and 105.]
Tennessee Code Annotated, § 55-10-207 also provides that if a person is arrested for the violation of certain traffic misdemeanors listed in that statute, and that person “is not required to be taken before a magistrate or judge as provided in § 55-10-203, the arresting officer shall issue a traffic citation in lieu of arrest, continued custody and the taking of the arrested person before a magistrate, except as provided in subsection (f).” [§ 55-10-203 provides that a person is to be taken to a magistrate when (1) the person demands to be taken before one; (2) the person is arrested for involuntary or voluntary manslaughter or murder; (3) the person is arrested for DUI; (4) the person is arrested for failure to stop in the event of an accident causing death, personal injury or damage to property; (5) the person arrested refused to give a written promise to appear. Subsection (f) contains other exceptions where the officer is not permitted or required to issue a citation in lieu of arrest.]
The legal nature of a citation in lieu of arrest under Tennessee Code Annotated, § 55- 10-207 is seen in Williams v. Brown, 860 S.W.2d 854 (Tenn. 1993). It points to the proposition that citations in lieu of arrest in most traffic offense cases are treated rather informally and do not generally involve arrests. There one of the questions was whether the payment of a fine before the court date was a plea of guilty that was admissible in a later civil action arising from the traffic offense with which the recipient of a traffic citation was charged and issued a citation in lieu of arrest under Tennessee Code Annotated, § 55-10-207. No, answered the Court, which declared that:
Under Tennessee law, a person cited for a traffic offense, “may elect not to contest the charge, and may, in lieu of appearance in court, submit the fine and costs to the clerk of the court.” Tenn. Code Ann. § 55-10-207(d) (1988). A jurisdiction which allows payment of a prescheduled amount is said to employ the “cafeteria” system. Hannah v. Ikek Topper Structural Steel Co., 28 O.O.2d 223, 224-25, 103 Ohio App. 44, 46-48, 101 N.E.2d 63, 65 (1963).... [At 856]
The Court reasoned that:
We think that the payment of a traffic fine is very closely analogous to a plea of nolo contendere which, translated from Latin, means simply “I will not contest it.” Black’s Law Dictionary 1048 (6th ed. 1990); see also Briggman, 586 A.2d at 16. That conclusion is supported by the statute which characterizes the out-of-court payment of a traffic fine as an election not to contest the charge. Tenn.Code. Ann. § 55-10-207(d) (1899). Pleas of nolo contendere are not admissible in Tennessee. Tenn. R. Evid. 410.
We conclude that the payment of a traffic fine in lieu of an appearance in court is neither a guilty plea nor an express acknowledgment of guilt. There are many legitimate and plausible reasons for choosing to pay such a fine by mail or otherwise, without intending to concede guilt. “Common experience demonstrates that the payment of a traffic citation is simply a matter of expedience.” [Citation omitted by me.] The cost of defense compared with the amount of the fine and the inconvenience as well as indirect economic losses of court appearances, are practical considerations which often motivate an individual cited for a traffic violation simply to pay the fine. [Citation omitted by me.]....[At 856-57]
Citations in Lieu of Continued Custody After Arrest
Tennessee Code Annotated, § 40-7-118(b), provides that:
A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer’s presence, or who has taken custody of a person arrested by a private person for the commission of a misdemeanor, shall issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate. If the peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether the person is to be arrested and taken into custody or arrested and issued a citation in accordance with this section in lieu of continued custody. The warrant or capias shall specify the action to be taken by the serving peace officer who shall act accordingly.
Tennessee Code Annotated, § 40-7-118 also contains a list of offenses for which citations in lieu of continued custody cannot be issued, and exceptions. The same provision contains exceptions for certain misdemeanors for which a citation in lieu of continued custody cannot be issued, and a list of offenses for which that citation is optional, and a list of conditions under which the citation is not to be issued. Subsection (d) provides that:
In issuing a citation the officer shall:
(1) Prepare a written order which shall include the name and address of the cited person, the offense charged and the time and place of appearance;
(2) Have the offender sign the original and duplicate copy of the citation. The officer shall deliver one (1) copy to the offender and retain the other;
(3) Release the cited person from custody. [Emphasis is mine.]
Subsection (e) provides that, “By accepting the citation, the defendant agrees to appear at the arresting law enforcement agency prior to trial to be booked and processed. Failure to so appear is a Class A misdemeanor.” Subsection (f) provides that “If the person cited fails to appear in court on the date and time specified or fails to appear for booking and processing prior to the person’s court date, the court shall issue a bench warrant for the person’s arrest.”
The Tennessee Supreme Court said in State v. Walker, 12 S.W.3d 460 (Tenn. 2000), that,
Under Tenn. Code Ann. § 40-7-118(b), however, when an officer observes the commission of certain misdemeanors, the officer is required to cite and release the misdemeanant in lieu of affectingcustodial arrest. Accordingly, the Tennessee “cite and release” statute creates a presumptive right to be cited and released for the commission of a misdemeanor. [At 464] [Emphasis is mine.]
Further, said the Court
....When an officer observes the commission of certain misdemeanors, the officer is required to issue a citation in lieu of custodial arrest. Tenn.Code.Ann.§ 40-7-118(b)(1) (1997). The misdemeanant must sign the citation, requiring him or her to appear in court on a specified date and time. Tenn.Code. Ann. § 40-7-118(a)(1) (1997). The result is that individuals who have committed relatively minor offences are released, but only on the “promise” that they will appear in court. This permits “allowing the use of jail space for dangerous individuals and/or felons.” Tenn.Code Ann. § 40-7-118(m)(3) (1997) [At 465-66] [Emphasis is mine.]
In fact, in Footnote 7 of Walker, the Court distinguished between two kinds of arrest under Tennessee Code Annotated, § 40-7-118:
Under Tenn. Code. Ann. § 40-7-118 there are two types of arrest at issue. The first type of arrest is the brief seizure and detention of an individual while the officer issues a citation. See Tenn.Code Ann. § 40-7-118(b)(1) (1997); see also People v. Bland, 884 P.2d 312, 316 n.6 (Colo. 1994); People v. Superior Court of Los Angeles County, 7 Cal.3d 186, 101 Cal. Rptr. 837, 496 P.2d 1205, 1215 (1972). The second type of arrest is described as “continued custody” of an already arrested (subjected to a brief seizure and detention) is a custodial arrest. See id.; see also State v. Chearis, 995 S.W.2d 641, 643-44 (Tenn. Crim. App. 1999).
In Walker, the defendant committed a city noise ordinance violation (loud radio) for which a police officer told him a citation would be issued. However, the defendant could not produce a driver’s license or vehicle registration. But the defendant gave the police officer his name, date of birth and driver’s license number, which the police dispatcher verified. However, the police officer took the defendant into custody for violating the noise ordinance and discovered marijuana and cocaine on the defendant’s person. The Court held that the defendant’s arrest was illegal under Tennessee Code Annotated, § 40-7-118(b), reasoning that the identification which the defendant gave the police officer was adequate to establish his identification. “In essence,” said the Court, “
Tennessee’s “cite and release” statute works on an “honor system,”operating under the assumption that the misdemeanant will act in good faith by furnishing accurate identification so that an officer can be assured that the misdemeanant is actually the person he or she claims to be.... [At 466]
It appears clear that under Tennessee Code Annotated, § 40-7-118, the Court did not contemplate that defendants who qualify for a citation in lieu of continued custody have their custody continued even for the purpose of booking them immediately after their arrest; defendants who are eligible for a citation in lieu of continued custody must be released to go on their ways absent some legitimate reason contained in that statute to effect a continuing custodial arrest.
There is another aspect to Walker that draws attention: Under Tennessee Code Annotated, §§ 40-7-118 and 55-10-207, the issuance, respectively, of citations in lieu of arrest and of citations in lieu of continued custody for certain misdemeanors, and for certain traffic offenses, respectively, are mandatory, but that is not true of citations in lieu of arrest under Tennessee Code Annotated, § 7-63-101. However, in Walker the Tennessee Supreme Court applied Tennessee Code Annotated, § 40-7-118 to a municipal ordinance violation, apparently treating it as a misdemeanor within the meaning of that statute.
If I have missed your questions or I can supply any other information on those questions, please let me know.
Sidney D. Hemsley
Senior Law Consultant