We have all heard the saying that trends come and go. Well, when it involves criminal laws and the Tennessee State Legislature, trends come, but they never seem to go. Take for example the ignition Interlock device (IID). This is a device that can be installed on a car that prevents its engine from starting until the driver proves that he is not under the influence of alcohol by blowing into the device. These were all the rage on The Hill (and nationally) a few years back with the legislature passing a slew of laws permitting or even requiring the use of IIDs. That trend has never left us and IID installers are making money hand-over-fist.
Well the makers, installers, and monitors of transdermal monitoring devices didn’t want the IID guys making all the money. So they hired lobbyists and have convinced law makers to start allowing or, in many cases requiring, persons accused or convicted of alcohol related crimes to wear and even pay for transdermal monitoring devices. A new trend has emerged and I don’t expect it to leave.
What is a transdermal monitoring device? According to the National Highway Traffic Safety Administration (NHTSA), “[t]ransdermal alcohol monitoring is a technology that permits the detection of drinking by sensing alcohol that passes through the skin as it is eliminated from the body. As part of the overall monitoring system, alcohol measurements are sent from the transdermal monitoring device to officials who supervise the offender.” NHTSA also claims that transdermal monitoring devices have an advantage over systems involving periodic breath tests such as an IID due to their more constant rate of testing and ability to test outside of the vehicle, thus making it more difficult to avoid detection.
House Bill No. 1648
Persons convicted of an alcohol-related offense can now be required by the court to wear an electronic monitoring device with random alcohol testing, GPS monitoring, or any other monitoring device necessary to ensure compliance with probation conditions.
Senate Bill No. 2399
Like I said above, the transdermal monitoring guys didn’t want the IID folks making all of the money. The former interlock assistance fund has been officially renamed to the DUI Monitoring Fund to cover the costs of transdermal monitors as well as IIDs.
If you are noticing that the trend involves Big Brother intruding further into your personal life and even home, you are correct! These new laws come on the heels of last year’s Public Chapter No. 490 that deemed a court “shall” order transdermal monitoring as a condition of release on bail when a judge finds that a person is charged with certain alcohol related crimes and has a prior conviction.
In 2014 the general assembly passed Public Chapter No. 567 (Amelia’s Law). This law allows the Parole Board to make certain findings about a potential parolee’s underlying crime, i.e. whether or not alcohol or drugs were a contributing factor. If they find that it was, then the board can order that parole include the use of transdermal monitoring device. As a criminal defense attorney, my first thought was to enter a stipulation as part of a plea agreement that neither alcohol nor drugs were a contributing factor. However, in this case, the general assembly gave the Parole Board authority to look behind the curtain; the board gets to decide the facts of the crime regardless of what the court found or the government proved at trial. That means that someone other than a judge or jury gets to decide what the facts of the case were without any oversight or regulation.
WHAT TREND IS NEXT?
Look for laws in the future that require the criminally accused, probationers, and parolees to wear patches that test for drugs. There are companies making these now to be put in use immediately. One example is the PharmChek Drug Patch. The manufacturer claims that this patch, worn on the skin, tests for cocaine, opiates, PCP, marijuana, and methamphetamines. They even claim that this patch can test for drug metabolites as well as the parent drug. If history is any sort of indicator (and it is), we will begin to see laws requiring the criminally accused, probationers, parolees, and possibly even juvenile court respondents to wear these patches.
NEED AN ATTORNEY
The legal landscape is changing. This is why you will find more and more attorneys are limiting the focus of their practices to one or two very specific areas of the law. If you have been charged with an alcohol related or other offense, you may need the advice of an experienced attorney, especially one that stays current on the law. Call us at Patton & Pittman to discuss your case.