Tennessee § 40-11-118 - Execution and deposit — Bail set no higher than necessary — Factors considered — Bonds and sureties.

§ 40-11-118. Execution and deposit — Bail set no higher than necessary — Factors considered — Bonds and sureties.

Any defendant for whom bail has been set may execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money in cash equal to the amount of the bail. Upon depositing this sum, the defendant shall be released from custody subject to the conditions of the bail bond. Bail shall be set as low as the court determines is necessary to reasonably assure the appearance of the defendant as required. In determining the amount of bail necessary to reasonably assure the appearance of the defendant while at the same time protecting the safety of the public, the magistrate shall consider the following: The defendant's length of residence in the community; The defendant's employment status and history and financial condition; The defendant's family ties and relationships; The defendant's reputation, character and mental condition; The defendant's prior criminal record, record of appearance at court proceedings, record of flight to avoid prosecution or failure to appear at court proceedings; The nature of the offense and the apparent probability of conviction and the likely sentence; The defendant's prior criminal record and the likelihood that because of that record the defendant will pose a risk of danger to the community; The identity of responsible members of the community who will vouch for the defendant's reliability; however, no member of the community may vouch for more than two (2) defendants at any time while charges are still pending or a forfeiture is outstanding; and Any other factors indicating the defendant's ties to the community or bearing on the risk of the defendant's willful failure to appear. Whenever a court's judgment includes the requirement that the defendant pay a fine or cost, the court may require that the payment of the fine or cost be secured by surety bond or other appropriate undertaking if such defendant has a history of past due fines and costs. A parent, guardian or other responsible party may be permitted to act as surety in order to guarantee the payment of the fine or cost. Notwithstanding any other provision of law to the contrary, unless the surety executes a bond or agreement which specifically makes the surety liable for the fine, cost, or restitution, no surety shall be held liable for the fine, cost or restitution without the surety's consent. When the court is determining the amount and conditions of bail to be imposed upon a defendant, if the defendant is charged with a violation of § 55-10-401, and has one (1) or more prior convictions for the offense of driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), aggravated vehicular homicide under § 39-13-218, or a prior conviction in another state that qualifies under § 55-10-405(b), the court shall consider the use of special conditions for the defendant, including, but not limited to, the conditions set out in subdivision (d)(2). The special conditions the court shall consider pursuant to subdivision (d)(1) are: The use of ignition interlock devices; The use of transdermal monitoring devices or other alternative alcohol monitoring devices. However, if the court orders the use of a monitoring device on or after July 1, 2016, and determines the defendant is indigent, the court shall order the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419; The use of electronic monitoring with random alcohol or drug testing; or Pretrial residency in an in-patient alcohol or drug rehabilitation center. As used in this subsection (d), “court” includes any person authorized by § 40-11-106 to take bail. After an inquiry pursuant to § 40-7-123 into the citizenship status of a defendant who is arrested for causing a traffic accident resulting in either the death or serious bodily injury, as defined in § 55-50-502, of another while driving without a valid driver license and evidence of financial responsibility as required by § 55-12-139, if it is determined that the defendant is not lawfully present in the United States, when determining the amount of bail, the defendant may be deemed a risk of flight. If the judge or magistrate determines that a person charged with vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218 on or after July 1, 2015, has a prior alcohol-related conviction, the use of a transdermal monitoring device shall be a condition of the person's bail agreement. All expenses associated with a person being subject to a transdermal monitoring device as a condition of bail shall be paid by that person. If the person believes there are legitimate medical reasons why the person is unable to be subject to the order, those reasons may be presented at the person's first appearance before a general sessions court judge or judge of a court of record. After hearing from the person subject to monitoring, the judge may waive, modify, or affirm an order requiring that person to be subject to transdermal monitoring. The offender shall choose an entity from a list approved by the court to provide, administer, and monitor the transdermal device ordered as a condition of bail. However, any entity placed on the approved list must have the ability to monitor the person's device on a daily basis and report any violation to the court having jurisdiction over the person's case by no later than the business day next following the violation. The person on bail shall remain subject to transdermal monitoring for the duration of the time the person is released on bail, unless the judge or magistrate specifically provides otherwise. If the report from the transdermal monitoring entity to the judge indicates that the person being monitored violated the conditions of release, the judge may issue a capias for the person's arrest for violation of bond conditions. As used in this subsection (f): “Alcohol-related conviction” means the person has been convicted prior to the instant conviction of a violation of § 39-13-213(a)(2), § 39-13-106, § 39-13-218, or § 55-10-401; and “Transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (1/2) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device. If a person is required as a special bond condition to submit to monitoring pursuant to subdivisions (d)(2)(A) - (C), subsection (f), § 40-11-150, or § 40-11-152, it is a Class B misdemeanor: For that person to knowingly tamper with, remove, or vandalize the monitoring device; or For any person to knowingly aid, abet, or assist a person in tampering with, removing, or vandalizing a monitoring device. If an entity monitoring the device becomes aware that there has been an attempt to either tamper with, disable, remove, or otherwise make the device ineffective, or if the bonding agent becomes aware the person has violated any bond condition ordered by the court, then the entity monitoring the device shall promptly give notice of the violation to the court with jurisdiction over the person and the surety of the person's bail bond. The court shall take such action as the case may require, including, but not limited to, the revocation of bail. Additionally, the violation also constitutes a grounds for surrender under § 40-11-132. Acts 1978, ch. 506, § 18; 1982, ch. 620, § 1; T.C.A., § 40-1218; Acts 1992, ch. 946, § 1; 1996, ch. 851, § 1; 2010, ch. 867, § 1; 2011, ch. 487, §§ 1, 2; 2012, ch. 1011, § 1; 2015, ch. 490, §§ 1, 2; 2016, ch. 876, § 4; 2016, ch. 993, § 10; 2018, ch. 1046, § 3. Compiler's Notes. Acts 2015, ch. 490, § 3 provided that the act, which added subsections (f) and (g), shall apply to all applicable bond orders issued on or after July 1, 2015. Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to offenses committed on or after July 1, 2018. Amendments. The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (d)(2)(B). Effective Dates. Acts 2018, ch. 1046, § 12. July 1, 2018. Cross-References. Bail for defendant charged with commission of crime while free on bail, § 40-11-148 . Excessive bail, Tenn. Const., art. I, § 16. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.6, 4.15, 4.27. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 3, 7. Attorney General Opinions. Proposed amendment to bail statutes granting judges authority to require a defendant to post a cash deposit bond, as opposed to other types of bonds, for all bailable offenses involving a worthless check, a child custody or support violation, or a probation violation deemed unconstitutional, OAG 03-054 (4/30/03). A court may not offer defendant the option of executing a bail bond secured by paying ten percent of the bail amount in cash, OAG 04-008 (1/21/04). A court cannot require a defendant to secure a bail bond with a cash deposit rather than with real estate or sureties, but the court can apply the cash deposit to any fines or court costs rendered against the defendant, OAG 04-008 (1/21/04). Authority of judicial commissioners and judges regarding the setting and alteration of bail. OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).