2010 Tennessee Code
Title 40 - Criminal Procedure
Chapter 7 - Arrest
Part 1 - General Provisions
40-7-118 - Use of citations in lieu of continued custody of an arrested person.

40-7-118. Use of citations in lieu of continued custody of an arrested person.

(a)  As used in this section, unless the context otherwise requires:

     (1)  “Citation” means a written order issued by a peace officer requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. The order shall require the signature of the person to whom it is issued;

     (2)  “Magistrate” means any state judicial officer, including the judge of a municipal court, having original trial jurisdiction over misdemeanors or felonies; and

     (3)  (A)  “Peace officer” means an officer, employee or agent of government who has a duty imposed by law to:

                (i)  Maintain public order;

                (ii)  Make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and

                (iii)  Investigate the commission or suspected commission of offenses; and

          (B)  “Peace officer” also includes an officer, employee or agent of government who has the duty or responsibility to enforce laws and regulations pertaining to forests in this state.

(b)  (1)  A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer's presence, or who has taken custody of a person arrested by a private person for the commission of a misdemeanor, shall issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate. If the peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether the person is to be arrested and taken into custody or arrested and issued a citation in accordance with this section in lieu of continued custody. The warrant or capias shall specify the action to be taken by the serving peace officer who shall act accordingly.

     (2)  (A)  The provisions of this subsection (b) do not apply to an arrest for the offense of driving under the influence of an intoxicant as prohibited by § 55-10-401, unless the offender was admitted to a hospital, or detained for medical treatment for a period of at least three (3) hours, for injuries received in a driving under the influence incident.

          (B)  The provisions of this subsection (b) do not apply to any misdemeanor offense for which the provisions of § 55-10-207 or § 55-12-139 authorize a traffic citation in lieu of arrest, continued custody and the taking of the arrested person before a magistrate.

     (3)  A peace officer may issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate if a person is arrested for:

          (A)  The offense of theft which formerly constituted shoplifting, in violation of § 39-14-103;

          (B)  Issuance of bad checks, in violation of § 39-14-121;

          (C)  Use of a revoked or suspended driver license in violation of § 55-50-504, § 55-50-601 or § 55-50-602;

          (D)  Assault or battery as those offenses are defined by common law, if the officer believes there is a reasonable likelihood that persons would be endangered by the arrested person if a citation were issued in lieu of continued physical custody of the defendant; or

          (E)  Prostitution, in violation of § 39-13-513, if the arresting party has knowledge of past conduct of the defendant in prostitution or has reasonable cause to believe that the defendant will attempt to engage in prostitution activities within a reasonable period of time if not arrested.

(c)  No citation shall be issued under the provisions of this section if:

     (1)  The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;

     (2)  There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;

     (3)  The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation;

     (4)  The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized;

     (5)  A reasonable likelihood exists that the arrested person will fail to appear in court;

     (6)  The person demands to be taken immediately before a magistrate or refuses to sign the citation;

     (7)  The person arrested is so intoxicated that the person could be a danger to the person's own self or to others; or

     (8)  There are one (1) or more outstanding arrest warrants for the person.

(d)  In issuing a citation, the officer shall:

     (1)  Prepare a written order which shall include the name and address of the cited person, the offense charged and the time and place of appearance;

     (2)  Have the offender sign the original and duplicate copy of the citation. The officer shall deliver one (1) copy to the offender and retain the other; and

     (3)  Release the cited person from custody.

(e)  By accepting the citation, the defendant agrees to appear at the arresting law enforcement agency prior to trial to be booked and processed. Failure to so appear is a Class A misdemeanor.

(f)  If the person cited fails to appear in court on the date and time specified or fails to appear for booking and processing prior to the person's court date, the court shall issue a bench warrant for the person's arrest.

(g)  Whenever a citation has been prepared, delivered and filed with a court as provided in this section, a duplicate copy of the citation constitutes a complaint to which the defendant shall answer. The duplicate copy shall be sworn to by the issuing officer before any person authorized by law to administer oaths.

(h)  Nothing in this section shall be construed to affect a peace officer's authority to conduct a lawful search even though the citation is issued after arrest.

(i)  Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation or who knowingly gives a false or assumed name or address commits a Class A misdemeanor, regardless of the disposition of the charge for which the person was originally arrested. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.

(j)  Whenever an officer makes a physical arrest for a misdemeanor and the officer determines that a citation cannot be issued because of one (1) of the eight (8) reasons enumerated in subsection (c), the officer shall note the reason for not issuing a citation on the arrest ticket. An officer who, on the basis of facts reasonably known or reasonably believed to exist, determines that a citation cannot be issued because of one (1) of the eight (8) reasons enumerated in subsection (c) shall not be subject to civil or criminal liability for false arrest, false imprisonment or unlawful detention.

(k)  (1)  Each citation issued pursuant to this section shall have printed on it in large, conspicuous block letters the following:


     (2)  Each person receiving a citation under this section shall sign this citation indicating the knowledge of the notice listed in subdivision (k)(1). The signature of each person creates a presumption of knowledge of the notice and a presumption of intent to violate this section if the person should not appear as required by the citation.

     (3)  Whenever there are changes in the citation form notice required by this subsection (k), a law enforcement agency may exhaust its existing supply of citation forms before implementing the new citation forms.

(l)  The provisions of this section shall govern all aspects of the issuance of citations in lieu of the continued custody of an arrested person, notwithstanding any provision of Rule 3.5 of the Tennessee Rules of Criminal Procedure to the contrary.

(m)  In cases in which:

     (1)  The public will not be endangered by the continued freedom of the suspected misdemeanant;

     (2)  The law enforcement officer has reasonable proof of the identity of the suspected misdemeanant; and

     (3)  There is no reason to believe the suspected misdemeanant will not appear as required by law;

the general assembly finds that the issuance of a citation in lieu of arrest of the suspected misdemeanant will result in cost savings and increased public safety by allowing the use of jail space for dangerous individuals and/or felons and by keeping officers on patrol. Accordingly, the general assembly encourages all law enforcement agencies to so utilize misdemeanor citations and to encourage their personnel to use those citations when reasonable and according to law.

[Acts 1981, ch. 500, §§ 1, 2; T.C.A., § 40-827; Acts 1983, ch. 200, § 1; 1984, ch. 553, §§ 1, 2; 1985, ch. 320, §§ 1-8, 10, 11; 1988, ch. 932, § 1; 1989, ch. 591, § 113; 1991, ch. 16, § 1; 1993, ch. 241, §§ 68-70; 1996, ch. 644, § 1; 2002, ch. 619, § 1.]  

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