Tennessee § 57-3-401 - Transportation, possession, importation, shipment or delivery of untaxed alcoholic beverages unlawful — Penalty.

§ 57-3-401. Transportation, possession, importation, shipment or delivery of untaxed alcoholic beverages unlawful — Penalty.

It is an offense for any person, firm or corporation, other than a common carrier or entity licensed under this title, to transport, either in person or through an agent, employee or independent contractor, untaxed alcoholic beverages or wine as defined in § 57-3-101 within, into, through or from this state in quantities in excess of five gallons (5 gals.). Except as provided in § 57-3-103(b) authorizing a person to store alcoholic beverages intended for a person's personal or social use, it is an offense for any person, firm, corporation or association to possess untaxed alcoholic beverages or wine in quantities in excess of five gallons (5 gals.). A violation of this subdivision (a)(1) is a Class E felony. Any person, firm, corporation or association transporting any alcoholic beverages or wine within or into this state shall bear the burden of proof that the taxes imposed by this title on alcoholic beverages or wine have been paid, or, in the case of wine that is manufactured at a winemaking on premises facility licensed pursuant to § 57-3-218, that no such taxes are due. A receipt or other documentation demonstrating legal purchase or transport from an entity licensed under § 57-3-203, § 57-3-204, § 57-3-207 or § 57-3-218 shall be adequate proof that such taxes have been paid or that no such taxes are due. It is an offense for any person, firm, corporation or association to import, ship, deliver or cause to be imported, shipped or delivered into this state any alcoholic beverages upon which the tax imposed by this title has not been paid or where such transportation is not authorized under this title to an entity possessing a license issued under this title. A violation of this subdivision (b)(1) is a Class E felony. Except as provided in § 57-3-207 for purchases made by an individual at a winery licensed pursuant to § 57-3-207, and notwithstanding the prohibition in subdivision (b)(1), it shall be lawful for any individual to transport not more than five gallons (5 gals.) of alcoholic beverages or wine into or within this state for the personal or household use of that individual. Acts 1947, ch. 182, §§ 1, 2; C. Supp. 1950, § 6648.22 (Williams, §§ 6648.33, 6648.34); T.C.A. (orig. ed.), § 57-137; Acts 1989, ch. 591, § 61; 1992, ch. 608, §§ 6, 7; 2009, ch. 434, § 6; 2011, ch. 451, § 7. Cross-References. Penalty for Class E felony, § 40-35-111 . Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 12, 17, 20. Law Reviews. The Wine Is In the Mail: The Twenty-First Amendment and State Laws Against the Direct Shipment of Alcoholic Beverages, 54 Vand. L. Rev. 2495 (2001). NOTES TO DECISIONS 1. Constitutionality and Validity. 2. Sufficiency of Indictment. 3. Defenses. 4. Searches and Seizures. 5. Evidence. 6. Judicial Notice. 7. Cross-Examination of Defendant. 1. Constitutionality and Validity. Acts 1947, ch. 182 from which this section was codified was not invalid as amending Acts 1939, ch. 49 without reciting the title or substance of such act since any amendment accomplished by the 1947 act was by implication and did not fall within such constitutional objections. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952). Tennessee's ban on direct shipment of alcoholic beverages, including wine, to consumers, is valid because it applies equally to in-state and out-of-state wineries. Jelovsek v. Bredesen, 545 F.3d 431, 2008 FED App. 386P, 2008 U.S. App. LEXIS 22295 (6th Cir. Oct. 24, 2008). 2. Sufficiency of Indictment. An indictment which omits the allegation essential to constitute a felony under this section does not charge a felony. Shook v. State, 192 Tenn. 134, 237 S.W.2d 959, 1951 Tenn. LEXIS 389 (1951). The indictment need not aver that the liquor in question contained more than five percent alcohol. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952). An indictment which avers that the defendants had the possession of “white moonshine liquor” was sufficient notice to the defendants that they were charged with the unlawful possession of unstamped whiskey and was equivalent to a charge to that effect. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952). 3. Defenses. The fact that the liquor was not unstamped would constitute an affirmative defense and the burden would be on the defendant to show the same. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952). Where liquor in fruit jar containers was physically introduced in the presence of the jury for their examination, it might be presumed that the character of the containers was such as to negative any thought of stamps and the jury by personal inspection could determine that no stamps had been affixed to the containers. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952). 4. Searches and Seizures. Where car was seen early in the morning traveling at an excessive rate of speed, sagging at the rear end and the officer noticed the odor of whiskey when he stopped the car, officer was justified in searching the trunk of the car without a search warrant. Dobbins v. State, 206 Tenn. 59, 332 S.W.2d 161, 1960 Tenn. LEXIS 342 (1960). 5. Evidence. Introduction into evidence of fruit jar containers containing moonshine whiskey was sufficient proof that whiskey was unstamped. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952). The unexplained presence of contraband liquor upon the premises occupied by the accused and under his control is sufficient to convict. Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258, 1961 Tenn. LEXIS 298 (1961). 6. Judicial Notice. Court will take judicial notice that moonshine whiskey contains more than five percent alcohol. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952). 7. Cross-Examination of Defendant. It was not error to cross-examine defendant charged with violation of this section relative to prior convictions for liquor offenses. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 1952 Tenn. LEXIS 378 (1952).