Determination of Risk to Victim Prior to Release — Conditional Release — Discharge of Conditions — Notification to Law Enforcement
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In addition to the factors set out in § 40-11-118, in making a decision concerning the amount of bail required for the release of a defendant who is arrested for the offense of child abuse, child neglect, or child endangerment, as defined in § 39-15-401, the offense of aggravated child abuse, aggravated child neglect, or aggravated child endangerment, as defined in § 39-15-402, the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(5), (10) or (11), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, the magistrate shall review the facts of the arrest and detention of the defendant and determine whether the defendant is:
A threat to the alleged victim;
A threat to public safety; and
Reasonably likely to appear in court.
Before releasing a person arrested for or charged with an offense specified in subsection (a), or a violation of an order of protection, the magistrate shall make findings on the record, if possible, concerning the determination made in accordance with subsection (a), and shall impose one (1) or more conditions of release or bail on the defendant to protect the alleged victim of any such offense and to ensure the appearance of the defendant at a subsequent court proceeding. The conditions may include:
An order enjoining the defendant from threatening to commit or committing specified offenses against the alleged victim;
An order prohibiting the defendant from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, either directly or indirectly;
An order directing the defendant to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;
An order prohibiting the defendant from using or possessing a firearm or other weapon specified by the magistrate;
An order prohibiting the defendant from possession or consumption of alcohol, controlled substances or controlled substance analogues;
An order requiring the defendant to carry or wear a global positioning monitoring system device and, if able, pay the costs associated with operating that device and electronic receptor device provided to the victim, pursuant to § 40-11-152; and
Any other order required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.
Concurrent with the imposition of one (1) or more conditions of release, the magistrate shall:
Issue a written order for conditional release containing the conditions of the release on a form prepared by the administrative office of the courts, in consultation with the Tennessee task force against domestic violence, and distributed to judges and magistrates by the administrative office of the courts;
Immediately distribute a copy of the order to the law enforcement agency having custody of the defendant, which agency shall file and maintain the order in the same manner as is done for orders of protection; and
Provide the law enforcement agency with any available information concerning the location of the victim in a manner that protects the safety of the victim.
The law enforcement agency having custody of the defendant shall provide a copy of the conditions to the defendant upon the defendant's release. Failure to provide the defendant with a copy of the conditions of release does not invalidate the conditions if the defendant has notice of such conditions.
If conditions of release are imposed without a hearing, the defendant may request a prompt hearing before the court having jurisdiction of the offense for which the defendant was arrested or is charged to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.
When a defendant who is arrested for or charged with an offense specified in subsection (a) or with a violation of an order of protection is released from custody, the law enforcement agency having custody of the defendant shall:
Use all reasonable means to immediately notify the victim of the alleged offense of the release and of the address and telephone number of the nearest source of assistance to victims of domestic violence, including, but not limited to, shelters, counseling centers or other appropriate community resources; and
Send the victim at the victim's last known address a copy of any conditions of release. If the victim is present at the time the conditions are imposed, a copy of the conditions may be given to the victim at that time; provided, that failure to furnish the victim a copy of any conditions of release shall not constitute negligence per se by the law enforcement agency.
Release of a defendant who is arrested for or charged with a crime specified in subsection (a) or with a violation of an order of protection shall not be delayed because of the requirements of subsection (f).
Any offender arrested for the offense of stalking, aggravated stalking, or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the alleged victim is a victim as defined in § 36-3-601, shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the offender may, however, release the offender in less than twelve (12) hours if the official finds that the offender is not a threat to the alleged victim.
The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of the arrest in order to establish the beginning of the twelve-hour period required by this subsection (h).
If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (h)(1).
If an order of protection or restraining order has been issued against an offender arrested for an offense listed in subdivision (h)(1), but the offender has not been served with the order prior to incarceration, the offender shall be served whenever possible with the order prior to the offender's release from incarceration. If an order has not been served on the offender at the conclusion of the offender's twelve-hour holding period, the offender may be released, but the order shall be served as soon as possible after the release. Service remains valid on an offender if it is made after the offender is released from incarceration rather than while incarcerated for the twelve-hour hold period.
A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
If the violation of the condition or release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.
If a defendant upon whom conditions of release have been imposed pursuant to this section is for any reason discharged or released from those conditions, the discharging or releasing court shall notify all law enforcement agencies within its jurisdiction that the defendant is no longer subject to the conditions originally imposed.
The administrative office of the courts, in consultation with the domestic violence state coordinating council, shall prepare a discharge from conditions of release notification form to send to law enforcement agencies as required by subdivision (j)(1) and shall distribute the form to all courts with the authority to discharge or release a defendant from conditions of release.
Any offender arrested for a violation of § 71-6-119, involving physical harm or abuse in which the alleged victim is an adult of advanced age as those terms are defined in § 71-6-102, or for a violation of § 39-15-507 or § 39-15-508 involving neglect or aggravated neglect shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the offender may, however, release the offender in less than twelve (12) hours if the official finds that the offender is not a threat to the alleged victim.
The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of arrest in order to establish the beginning of the twelve-hour period required by this subsection (k).
If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (k)(1).
A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
If the violation of the condition of release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.
Any officer who has reason to believe that a defendant under arrest may pose a substantial likelihood of serious harm to the defendant or to others may make a recommendation to the community mental health crisis response service that the defendant be evaluated by a member of such service to determine if the defendant is subject to admission to a hospital or treatment resource pursuant to § 33-6-403.
The assessment of the defendant by a member of a community mental health crisis response service shall be completed within twelve (12) hours from the time the defendant is in custody or the magistrate or other official with the authority to determine bail shall set bail and admit the defendant to bail, when appropriate. However, if the assessment is being conducted at the end of the twelve-hour period, the member of the community mental health crisis response service may complete the assessment. The magistrate or other official duly authorized to release the defendant may, however, release the accused in less than twelve (12) hours if the official determines that sufficient time has or will have elapsed for the victim to be protected.
If the assessment of the defendant by the member of the community mental health crisis response service indicates that the defendant does not meet the standards of § 33-6-403, the officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall so report to the magistrate or other official with the authority to determine bail and such magistrate or official shall set bail and admit the defendant to bail, when appropriate.
The officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall note the time the defendant was taken into custody for purposes of beginning the twelve-hour assessment period provided in subdivision (l )(1)(B).
Following the arrest of a person for any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a domestic abuse victim as defined in § 36-3-601, the court or magistrate shall make a finding whether there is probable cause to believe the respondent either:
Caused serious bodily injury, as defined in § 39-11-106, to the alleged domestic abuse victim; or
Used or displayed a deadly weapon, as defined in § 39-11-106.
If the court or magistrate finds probable cause to believe that one (1) or both of the circumstances in subdivision (m)(1) did occur, unless the court or magistrate finds that the offender no longer poses a threat to the alleged victim or public safety, the court or magistrate shall impose the twelve-hour hold period and victim notification requirements in accordance with subsection (h).
Prior to the offender's release on bond, the court or magistrate shall issue a no contact order containing all of the bond conditions set out in this section that are applicable to the protection of a domestic abuse victim.