Tennessee Code Annotated

Title 55: Motor and Other Vehicles

Chapter 10: Accidents, Arrests, Crimes and Penalties

Part 4: Alcohol and Drug Related Offenses

TCA 55-10-402: Penalty for violations of SC 55-10-401 -- Alternative facilities for incarceration -- Public service work -- Inpatient alcohol and drug treatment.

(a) (1) (A) Any person violating SC 55-10-401, shall, upon conviction for the first offense, be sentenced to serve in the county jail or workhouse not less than forty-eight (48) consecutive hours nor more than eleven (11) months and twenty-nine (29) days, and as a condition of probation, shall remove litter during the daylight hours from public roadways or publicly owned property for a period of twenty-four (24) hours in three (3) shifts of eight (8) consecutive hours each.
(B) Any person violating SC 55-10-401, shall, upon conviction for first offense with a blood alcohol concentration of twenty-hundredths of one percent (0.20%), shall serve a minimum of seven (7) consecutive days rather than forty-eight (48) hours, and as a condition of probation, shall remove litter during the daylight hours from public roadways or publicly owned property for a period of twenty-four (24) hours in three (3) shifts of eight (8) consecutive hours each.
(2) Any person violating SC 55-10-401, shall, upon conviction for second offense, be sentenced to serve in the county jail or workhouse not less than forty-five (45) consecutive days nor more than eleven (11) months and twenty-nine (29) days. Upon the conviction of a person on the second offense only, a judge may sentence the person to participate in a court approved alcohol or drug treatment program.
(3) Any person violating SC 55-10-401, shall, upon conviction for third offense, be sentenced to serve in the county jail or workhouse not less than one hundred twenty (120) consecutive days nor more than eleven (11) months and twenty-nine (29) days.
(4) Any person violating SC 55-10-401, upon conviction for fourth or subsequent offense shall be sentenced as a felon to serve not less than one hundred fifty (150) consecutive days nor more than the maximum punishment authorized for the appropriate range of a Class E felony.
(b) (1) If a person is convicted of a violation of SC 55-10-401, and at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, the person's sentence shall be enhanced by a mandatory minimum period of incarceration of thirty (30) days. The incarceration enhancement shall be served in addition to any period of incarceration received for the violation of SC 55-10-401.
(2) Notwithstanding subsection (a), if, at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, and the child suffers serious bodily injury as the proximate result of the violation of SC 55-10-401, the person commits a Class D felony and shall be punished as provided in SC 39-13-106, for vehicular assault.
(3) Notwithstanding subsection (a), if, at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, and the child is killed as the proximate result of the violation of SC 55-10-401, the person commits a Class B felony and shall be punished as provided in SC 39-13-213(b)(2), for vehicular homicide involving intoxication.
(c) Subdivisions (b)(1)-(3) constitute an enhanced sentence, not a new offense.
(d) After service of at least the minimum sentence day for day, the judge has the discretion to require an individual convicted of a violation of SC 55-10-401 to remove litter from the state highway system, public playgrounds, public parks or other appropriate locations for any prescribed period or to work in a recycling center or other appropriate location for any prescribed period of time in lieu of or in addition to any of the penalties otherwise provided in this section; provided, that any person sentenced to remove litter from the state highway system, public playgrounds, public parks or other appropriate locations or to work in a recycling center shall be allowed to do so at a time other than the person's regular hours of employment.
(e) All persons sentenced under this part shall, in addition to service of at least the minimum sentence, be required to serve the difference between the time actually served and the maximum sentence on probation.
(f) (1) An offender sentenced to a period of incarceration for a violation of SC 55-10-401, shall be required to commence service of the sentence within thirty (30) days of conviction or, if space is not immediately available in the appropriate municipal or county jail or workhouse within such time, as soon as such space is available. If, in the opinion of the sheriff or chief administrative officer of a local jail or workhouse, space will not be available to allow an offender convicted of a violation of SC 55-10-401, to commence service of the sentence within ninety (90) days of conviction, the sheriff or administrative officer shall use alternative facilities for the incarceration of the offender. The appropriate county or municipal legislative body shall approve the alternative facilities to be used in the county or municipality.
(2) As used in this subsection (f), "alternative facilities" include, but are not limited to, vacant schools or office buildings or any other building or structure owned, controlled or used by the appropriate governmental entity that would be suitable for housing these offenders for short periods of time on an as-needed basis. A governmental entity may contract with another governmental entity or private corporation or person for the use of alternative facilities when needed and governmental entities may, by agreement, share use of alternative facilities.
(3) Nothing in this subsection (f) shall be construed to give an offender a right to serve a sentence for a violation of SC 55-10-401, in an alternative facility or within a specified period of time. Failure of a sheriff or chief administrative officer of a jail to require an offender to serve the sentence within a certain period of time or in a certain facility or type of facility shall have no effect upon the validity of the sentence.
(g) Notwithstanding this section to the contrary, in counties with a metropolitan form of government and a population in excess of one hundred thousand (100,000), according to the 1990 federal census or any subsequent federal census, the judge exercising criminal jurisdiction may sentence a person convicted of violating SC 55-10-401 for the first time to perform two hundred (200) hours of public service work in a supervised public service program in lieu of the minimum period of confinement required by subsection (a).
(h) (1) If the court orders participation in an inpatient alcohol and drug treatment program pursuant to subdivision (a)(2), the treatment program shall not exceed a period of twenty-eight (28) days. During this period of confinement in inpatient treatment, the person ordered to participate shall be confined to the inpatient treatment center and shall not, without further court order, be released for any reason until the completion of the treatment. In the event the person does not complete the confinement in the treatment program, that person shall be returned to the county jail or workhouse to serve the full period of the confinement imposed without any credit allowed for time spent in the program. Upon completion of the confinement in the program, the remainder of the confinement imposed shall be served in the county jail or workhouse.
(2) (A) The court is not empowered to order the expenditure of public funds to provide treatment. However, if a person ordered to participate in such a program is indigent, the court may allow the person, subject to availability of services, to enter any program that provides the treatment without cost to an individual. When making a finding as to the indigency of an accused, the court shall take into consideration:
(i) The nature of the services of the program rendered;
(ii) The usual and customary charges for rendering such program in the community;
(iii) The income of the accused regardless of source;
(iv) The poverty level guidelines compiled and published by the United States department of labor;
(v) The ownership or equity of any real or personal property of the accused; and
(vi) Any other circumstances presented to the court that are relevant to the issue of indigency.
(B) If a person ordered to participate is not indigent and participates in a program that provides treatment without cost to an individual, that person shall be obligated to pay for treatment in the same manner as provided in SC 33-2-1202. If a person ordered to participate, participates in a court approved private treatment program, that person shall be responsible for the cost and fees involved with the program.

History: Acts 1953, ch. 202, SC 5 (Williams, SC 10830.6); Acts 1955, ch. 100, SC 1; 1961, ch. 89, SC 1; 1970, ch. 504, SCSC 1, 2; 1971, ch. 135, SC 2; 1971, ch. 275, SC 1; 1973, ch. 64, SC 2; 1974, ch. 748, SC 32; T.C.A. (orig. ed.), SC 59-1035; Acts 1980, ch. 817, SC 4; 1981, ch. 350, SC 1; 1981, ch. 443, SC 1; 1982, ch. 891, SCSC 1, 2; 1983, ch. 198, SC 1; 1984, ch. 597, SCSC 1, 2; 1986, ch. 842, SC 13; 1987, ch. 431, SC 1; 1988, ch. 969, SC 1; 1989, ch. 547, SC 1; 1989, ch. 591, SCSC 111, 116; 1990, ch. 973, SCSC 1, 2; 1990, ch. 992, SC 2; 1990, ch. 1081, SC 1; 1991, ch. 261, SC 1; 1991, ch. 355, SCSC 1, 2; 1991, ch. 502, SC 3; 1992, ch. 653, SC 1; 1992, ch. 773, SC 1; 1992, ch. 975, SC 1; 1993, ch. 123, SCSC 1-5; 1993, ch. 272, SC 1; 1993, ch. 516, SCSC 1, 2; 1994, ch. 840, SC 1; 1994, ch. 948, SCSC 1-3; 1995, ch. 524, SCSC 1, 2; 1996, ch. 910, SC 1; 1998, ch. 926, SC 1; 1998, ch. 986, SC 3; 1998, ch. 1046, SCSC 1, 2, 5, 6; 2000, ch. 863, SCSC 1, 2; 2000, ch. 867, SC 1; 2000, ch. 947, SC 8N; 2002, ch. 546, SCSC 1, 2; 2002, ch. 789, SC 1; 2002, ch. 855, SCSC 1,