2010 Tennessee Code
Title 40 - Criminal Procedure
Chapter 35 - Criminal Sentencing Reform Act of 1989
Part 3 - Sentences
40-35-311 - Procedure to revoke suspension of sentence or probation.

40-35-311. Procedure to revoke suspension of sentence or probation.

(a)  Whenever it comes to the attention of the trial judge that any defendant, who has been released upon suspension of sentence, has been guilty of any breach of the laws of this state or has violated the conditions of probation, the trial judge shall have the power to cause to be issued under the trial judge's hand a warrant for the arrest of the defendant as in any other criminal case. Regardless of whether the defendant is on probation for a misdemeanor or felony, or whether the warrant is issued by a general sessions court judge or the judge of a court of record, the warrant may be executed by a probation officer or any peace officer of the county in which the probationer is found.

(b)  Whenever any person is arrested for the violation of probation and suspension of sentence, the trial judge granting the probation and suspension of sentence, the trial judge's successor, or any judge of equal jurisdiction who is requested by the granting trial judge to do so shall, at the earliest practicable time, inquire into the charges and determine whether or not a violation has occurred, and at the inquiry, the defendant must be present and is entitled to be represented by counsel and has the right to introduce testimony in the defendant's behalf.

(c)  (1)  A laboratory report regarding a defendant's drug test may be admissible in probation revocation proceedings, even though the laboratory technician who performed the test is not present to testify, when accompanied by an affidavit containing at least the following information:

          (A)  The identity of the certifying technician;

          (B)  A statement of qualifications from the certifying technician;

          (C)  A specific description of the testing methodology;

          (D)  A statement that the method of testing was the most accurate test for this particular drug;

          (E)  A certification that the test results were reliable and accurate;

          (F)  A declaration that all established procedures and protocols were followed; and

          (G)  A statement of acknowledgment that submission of false information in the affidavit may subject the affiant to prosecution for the criminal offense of perjury pursuant to § 39-16-702.

     (2)  Notwithstanding the provisions of subdivision (c)(1), the judge shall, upon seasonable objection and for good cause shown, require that the laboratory technician appear and testify at the probation revocation hearing.

     (3)  If the state intends to introduce a laboratory report and affidavit in lieu of the live testimony of the laboratory technician as authorized by this subsection (c), it shall provide the defendant or the defendant's attorney, if known, with a copy of the report and affidavit at least five (5) days prior to the revocation hearing.

(d)  The trial judge may enter judgment upon the question of the charges as the trial judge may deem right and proper under the evidence adduced before the trial judge.

(e)  (1)  If the trial judge finds that the defendant has violated the conditions of probation and suspension by a preponderance of the evidence, the trial judge shall have the right by order duly entered upon the minutes of the court to revoke the probation and suspension of sentence, and:

          (A)  Cause the defendant to commence the execution of the judgment as originally entered, or otherwise in accordance with § 40-35-310; or

          (B)  Resentence the defendant for the remainder of the unexpired term to any community-based alternative to incarceration authorized by chapter 36 of this title; provided, that the violation of probation and suspension is a technical one and does not involve the commission of a new offense.

     (2)  If the trial judge does revoke the defendant's probation and suspension, the defendant has the right to appeal.

[Acts 1989, ch. 591, § 6; 1995, ch. 51, § 1; 1997, ch. 506, § 1; 1998, ch. 1065, § 1; 2009, ch. 203, § 3.]  

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