Capitol Hill Week: Legislation strengthening Tennessee’s DUI laws advances in State Senate

(NASHVILLE, Tenn.), March 10, 2016 – The Senate Judiciary Committee approved a major bill this week strengthening Tennessee’s DUI laws. The proposal, sponsored by Senate Majority Leader Mark Norris (R-Collierville), requires immediate sharing of an impaired driver’s DUI arrest and conviction history with law enforcement, the courts and the National Crime Information Centers (NCIC).

The legislation stems from a tragic crash in Mississippi involving the deaths of two Shelby County students by a driver who carried five convictions for first offense DUI and was out on bond for his sixth DUI. Records revealed three counties and one municipality in Mississippi failed to inform the Mississippi Department of Public Safety about the convictions so it could be put into the NCIC database. The NCIC database is accessible by law enforcement officers in their squad cars to check the criminal background of arrestees.

“This is inexcusable,” said Leader Norris. “This legislation helps to ensure that multiple DUI offenders do not fall through the cracks and return to the roads where they are a danger to everyone who crosses their path. Our judges need to be fully informed if an offender has a prior history so that appropriate action can be taken by the court from the onset.”

The Mississippi and Tennessee legislatures are moving similar legislation to address the sharing of information in DUI cases as well as conditions related to bail for defendants with prior alcohol-related offenses and the procedure for revoking bond. Specifically, Senate Bill 2576:
• Requires that, after an arrest but before a bail hearing, a criminal background check shall be run using all available databases to determine prior arrests for DUI offenses;
• Creates the procedure for a bail revocation hearing if the defendant violates a condition of release, is charged with an offense during release or engages in conduct which results in the obstruction of the orderly and expeditious progress of the trial or other proceedings; and,
• Makes special conditions on bail mandatory when the defendant has one or more prior alcohol-related convictions, including ignition interlock devices, transdermal monitoring devices or other alcohol monitoring devices, electronic monitoring with random alcohol or drug testing or pre-trial residency in an in-patient alcohol or drug rehabilitation center.

If being monitored is a condition of bail, the legislation requires the defendant must periodically report to the supervisor every 30 days to verify proper operation of the monitoring device and the court must be notified upon any violation.

Another bill sponsored by Norris and approved by the committee calls for timely transmission of fingerprints taken for vehicular impairment offenses. Senate Bill 2577 requires that, when fingerprints are taken for these offenses, they must be sent within five business days if by mail or two business days if done electronically. The proposal further requires that, when a person is convicted of a vehicular impairment offense, the final court order must be sent to the Tennessee Bureau of Investigation (TBI) by the court clerk within seven business days if by mail or up to five business days if electronically for entry into the National Crime Information Center (NCIC).

Similarly, the Senate Judiciary Committee approved a bill, sponsored by Senator Doug Overbey (R-Maryville), which gives judges the discretion to order monitoring for first time DUI offenders. The monitoring can include a transdermal monitoring device, electronic monitoring with random alcohol and drug testing, GPS monitoring or any device a judge believes necessary to ensure that the offender complies with probation conditions and a clinical assessment, if applicable.

“This legislation simply ensures that a judge has the discretion to order the most appropriate monitoring device given not all offenses are due to alcohol,” said Sen. Overbey.

Another bill sponsored by Overbey and that passed through the committee this week authorizes the use of the state’s Interlock Assistance Fund for transdermal monitoring devices or other alternative alcohol or drug monitoring devices when a court determines that an offender is unable to pay for it. The measure caps the assistance to $200 per month for each device. The name of the fund would be changed to the DUI Monitoring Fund under the bill.

Finally, the full Senate voted this week to approve a measure creating a DUI memorial signing program. The “Tyler Head Law,” sponsored by Senator Kerry Roberts (R-Springfield), upon request, erects and maintains memorial signs on the state highway system commemorating residents of Tennessee who died as a result of a DUI related accident.

“It’s not only an opportunity to memorialize those who have tragically lost their lives to drunk drivers, but will serve to remind Tennesseans of the danger of driving under the influence,” Roberts said. “The signs, which will cost very little, will be a very visible tool in our efforts to combat driving under the influence.”

There is an average of 70 to 80 of DUI-related fatalities in the state annually. Senate Bill 1730 is named after Tyler Head, a Springfield college student who was killed by an impaired driver while driving to Austin Peay State University in February 2012.

Legislation protecting Tennessee farms advances in State Senate

Legislation protecting Tennessee’s farming industry advanced in the Senate this week as the Judiciary Committee approved an amendment to the state’s Right to Farm Act. Senate Bill 2591 clamps down on illegitimate nuisance suits by removing the standard regarding nuisance actions on new types of farming operations. The bill, sponsored by Senate Majority Leader Mark Norris (R-Collierville), requires the same burden of proof for nuisance action for these farms as used in established farming operations.

“If you look at the state seal, the wording most prominent across the middle is agriculture,” said Senator Norris. “Agriculture remains the biggest business that Tennessee embraces and at the same time, we’re concerned about the continued loss of farm land and farm operations, not only across the United States, but here in Tennessee, as well. As development expands and land use changes, those in the farming business need to be vouchsafe. They need to have their heritage and their livelihood, the opportunity to pursue it, preserved. This bill helps in those efforts.”

The proposal establishes a rebuttable presumption that a farm is not a public or private nuisance unless overcome by a preponderance of the evidence that either the farm does not conform to generally accepted agricultural practices or those set by the Department of Agriculture and the Department of Environment and Conservation. The bill would not affect legitimate cases of nuisance like the improper use of pesticides, herbicides or disposing of waste improperly.

“This bill removes the standard as it relates to new types of farming operations, simply saying that if you’re farming, you’re farming and you have a rebuttable presumption. There is no distinction between existing’ and new types of farms,” Norris continued.

“As people decide they want to live in the beautiful bucolic country, they don’t realize that there’s an industry going on there, called agriculture, and this helps to protect that,” added Senator Janice Bowling (R-Tullahoma), who is co-sponsoring the bill.

The measure now goes to the floor of the Senate where it could be scheduled as early as next week.

In other farm news this week, the full Senate approved legislation giving the Commissioner of Agriculture authority to regulate seeds that are sold, purchased and planted in Tennessee. Senate Bill 1934, sponsored by Senator Ken Yager (R-Kingston), aims to reduce the risk of potentially harmful seeds from other parts of the world coming into the state. The bill now goes to the governor for his signature.

Commissioner of Veterans Services provides members of the Senate State and Local Government Committee with review of what the department is doing to improve services to state’s half million veterans

The Senate continued examining budget requests this week, hearing from six more departments or agencies of state government, including the Tennessee Department of Veterans Services. Commissioner Many-Bears Grinder gave members of the Senate State and Local Government Committee a thorough review of what her department is doing to improve services for the 500,006 veterans in Tennessee. The department has expanded services, increased the number of county service officers and improved processes, including the electronic filing of claims. This new system has resulted in 12,840 claims processed in 2015, a 47 percent increase that is expected to exceed $2 billion for Tennessee veterans.

Grinder said Fort Campbell discharges 350-600 transitioning soldiers each month, many who make Tennessee their home. The Department of Veteran Services partners with corporations to connect soldiers to career opportunities in the state. Tennessee’s veteran unemployment rate decreased from 7 percent in 2012 to 4.5 percent in 2014.

An increase in veterans coming into the system also means more services are needed in the state’s veterans homes. Grinder said the department cut the ribbon for a new state veterans home in Clarksville in January. The home has the capacity for 108 residents, all with private rooms. The department will accept land in Cleveland, Tennessee to build a new veterans home on March 11, with plans continuing for a new home in Arlington.

The state currently has three Veteran Treatment Courts and 32 Recovery Courts, with 355 justice-involved veterans being served Grinder said. Forty-eight percent of veterans moving through those courts are combat veterans. A Recovery Court is a specialized court comprised of a multidisciplinary team of individuals who serve to address the needs of those who have substance abuse or co-occurring mental health issues or who are veterans. In other parts of the country these courts are called “Drug Courts;” however, in Tennessee the term “Recovery Court” is used to symbolize the all-encompassing aspect of the program and the focus on recovery.

Grinder said that, in October 2015, the U.S. Department of Veterans Affairs National Cemetery Administration formally issued a letter with plans to award Tennessee over $6 million dollars to build a new state veterans cemetery in Parker’s Crossroads. Tennessee was one of only 5 states to receive a grant for a new cemetery and one of 10 states to receive an expansion grant. The department anticipates breaking ground on the Parker’s Crossroads cemetery in the fall and construction is expected to be complete in 12 months.

“Led by a veteran herself, the department prides itself on outreach to our veterans,” said Senate State and Local Government Committee Chairman Ken Yager. “This budget provides for improved services to the half million veterans in our state. I am pleased to support this budget.”

Legislation aiming to cut fraud and abuse in Tennessee’s welfare system approved by State Senate

Legislation aiming to reduce fraud and abuse in Tennessee’s welfare system was approved by the State Senate this week. The proposal, sponsored by Senator Jim Tracy (R-Shelbyville), makes substantial changes to the way the Tennessee Department of Human Services (DHS) contracts and monitors third-party agencies that receive taxpayer money to feed children and adults.

The legislation comes after comptroller audits and investigations that identified financial mismanagement and fraud within some of the federal food programs administered by DHS. Approximately $80 million flows through DHS for program services.

“The Department of Human Services provides services to some of the most vulnerable citizens of our state,” said Senator Tracy. “This bill ensures that money designated for those in need is spent in the most efficient and effective manner, while at the same time protecting taxpayer money from fraud and abuse.”

Senate Bill 1472 directs DHS to conduct background checks on each applicant of the subrecipient or sponsoring organization. It also requires sponsoring organizations applying to participate in any food program administered through the department to obtain and maintain a performance bond. If the contract is awarded, the department must perform both unannounced and announced physical site visits during the subrecipient monitoring process and report their findings. Similarly, DHS must develop sub-recipient monitoring plans, under the bill, utilizing analytical procedures that must be submitted to certain legislative leaders and the state comptroller on an annual basis. In addition, the bill requires the inspector general of DHS must submit a report summarizing the results of any substantiated investigations concerning fraud, waste and abuse regarding the child and adult care food program and summer food service program every three months.

The bill is pending action in the Finance, Ways and Means Committee in the House of Representatives.

Senate passes cybersecurity legislation to protect Tennessee Consumers

Cybersecurity legislation was passed by the State Senate this week tightening up Tennessee’s law regarding breach notification requirements to protect consumers. The bill is sponsored by Senator Bill Ketron (R-Murfreesboro).

“With more and more personal information stored electronically, there is a growing need to protect personal information, funds and assets,” said Senator Ketron. “This bill moves Tennessee law forward in adapting to the ever-changing landscape of the cyber world and the threats that come as a result.”

Presently, Tennessee law requires a person, state agency, or business that owns or licenses computerized data that includes personal information to disclose any discovered breach of the security of the system to Tennessee residents whose unencrypted personal information may have been acquired by an unauthorized person. The law, however, does not affect encrypted information even though a growing number of breaches involve encrypted data as the methods used by criminals become more sophisticated. The time frame for this notification is also not specified under current law, simply saying it should be made in the most expedient time possible and without reasonable delay.

Senate Bill 2005 specifies that an unauthorized user includes employees of the information holder and that a breach of the security system includes the unauthorized acquisition of all computerized data, whether encrypted or unencrypted. It further requires that the notification requirement to disclose a breach be made immediately, but no later than 45 days from the discovery or notification of the breach or, in the event the disclosure is delayed due to the needs of law enforcement, no later than 45 days after the law enforcement agency determines that the disclosure will not compromise a criminal investigation.

According to the Credit Union National Association, it is estimated that the 2013 Target breach cost credit unions over $30 million and the 2014 Home Depot breach is estimated to have cost even more. These costs include notifying customers of the breach, reissuing credit and debit cards, closing and reopening member accounts, refunding fraudulent charges, stopping and blocking payments and increasing fraud monitoring.

In Brief…

Government Accountability / State Audits — The State Senate approved a bill this week that would make it a Class A misdemeanor criminal offense for a supervisor or employee of state government intentionally to interfere with, impede, obstruct or limit access to information that is requested during an audit conducted by the Comptroller of the Treasury. Audits provide information to assist the legislature in overseeing the use of public funds and the efficient operation of government. Senate Bill 1649, sponsored by Senator Jim Tracy (R-Shelbyville), now goes to the House of Representatives where it is pending action in the Criminal Justice Subcommittee.

TRICOR — The full Senate voted on Monday to extend the Tennessee Rehabilitative Initiative in Correction (TRICOR) board for two years to June 30, 2018. The sponsor of Senate Bill 1546, Senator Mike Bell (R-Riceville), stated he is “confident that the organization is now moving in the right direction.” The bill also conditions that the executive director of the board no longer has voting privileges. This legislation now moves to the House of Representatives where it is set for consideration by the House Government Operations Committee.

Epinephrine / Law Enforcement Officers — Legislation allowing law enforcement officers to administer epinephrine in emergency situations was approved by State Senators this week. Epinephrine injection is used along with emergency medical treatment to treat life-threatening allergic reactions caused by insect bites or stings, foods, medications, latex and other causes. Senate Bill 1767, sponsored by Senator Paul Bailey (R-Sparta), is permissible legislation that authorizes use of epinephrine if the officer’s law enforcement agency has adopted a protocol governing its administration. The bill also authorizes physicians to prescribe epinephrine to law enforcement agencies and provides immunity from civil liability for the law enforcement officer or agency, physician and pharmacist, unless they act in reckless disregard for safety.

Asbestos Claims Priorities Act — Asbestos litigation in the U.S. has been going on for over 40 years without a sign of abating. For many years this litigation was focused on asbestos containing thermal insulation from which thousands died from exposure. A wave of lawsuits triggered a tsunami of bankruptcies in the early 2000s. The bankruptcy code allows a company with asbestos-related liability to transfer its liabilities and certain assets to an asbestos personal injury trust, which is responsible for compensating present and future claimants. There are over 60 trusts which collectively hold $36.8 billion. Personal injury cases can also be brought against still solvent companies, and the defendants that are being sued today were generally minor players. They include manufacturers and distributors of encapsulated friction products like breaks, encapsulated gaskets and packaging and home remodeling products. These products contain a fiber that is far less potent than those used in thermal insulation and are arguably not potent at all, except in large doses. Many of these are Tennessee companies with remote connections to asbestos.

Under the current law, asbestos plaintiffs have two completely different avenues of recovery: the bankruptcy trust system and the regular personal liability tort system. Attorneys have been seeking the tort system in court before filing against the trust system and have been effectively “double dipping” by receiving a judgement in a personal injury lawsuit and then going after payment in the trust system. Senate Bill 2062, sponsored by Senator John Stevens (R-Huntingdon), closes this loophole without limiting access to the courts or to recovery. It preserves the mechanism to require plaintiffs to file asbestos trust claims before trial and preserves the requirement that plaintiffs with non-cancer conditions must demonstrate credible evidence of impairment to proceed with an asbestos action. Cases will be brought to the trust first and then the compensations will be presented in the trial court, putting an end to the process of double dipping.

Food Stamps / Soldiers — State Senators approved a bill this week designed to help soldiers who are eligible for food stamps, especially those who are deployed overseas. Senate Bill 1759, sponsored by Senator Mark Green (R-Clarksville), changes the way income is calculated for the purpose of determining eligibility for the special supplemental food program for women, infants, and children. It says that the Department of Health shall not include, as income, the basic allowance for subsistence (BAS) for applicants who are members of the U.S. Armed Services. The legislation closes a loophole where service members whose families would normally qualify for assistance, but do not because of their military subsistence allowance.

Schools / Bullying – Final approval was given this week to a bill which aims to improve Tennessee’s bullying law. Senate Bill 2002 requires that school policy include a procedure for referral of appropriate counseling and support services for students involved in bullying when deemed necessary. The measure also requires that investigations of incidences reported must be prompt and immediate, with principals or their designees initiating an investigation within 20 school days unless more time is needed to appropriately document it. The principal must then inform parents or legal guardians of the incident and the availability of intervention services for the student. In addition, the bill expands current reporting requirements of bullying incidents to the Tennessee Department of Education. Presently, the report only includes the number of incidents. The proposal adds to that report where an investigation supported a finding and the type of bullying identified, as well as the manner in which it was resolved. Finally, the bill encourages each local education agency to review their policy prohibiting harassment, intimidation, bullying or cyberbullying at least once every three years and transmit any changes made to the Commissioner of Education in a timely manner. The bill is sponsored by Senator Bill Ketron (R-Murfreesboro).

Evading Arrest / Penalties — Final approval was given to legislation setting tougher penalties for evading arrest. Senate Bill 1966, sponsored by Senator Jim Tracy (R-Shelbyville), makes it a Class E felony with a minimum confinement of not less than 30 days for evading arrest, unless the evasion creates a risk of death or injury to innocent bystanders, law enforcement officers or third parties. In those cases, the crime would be set at a Class D felony with a minimum time of not less than 60 days in jail. The bill was brought to Tracy by law enforcement authorities in counties which border other states where it is more likely that a person being pursued will cross state lines to evade arrest. The companion legislation has also passed so the bill now goes to the governor for his signature.

Emergency 911 — This week, “Kari’s Law,” sponsored by Senator Randy McNally (R-Oak Ridge), was discussed in the Senate State and Local Government Committee. The legislation comes from a case in Texas where a child attempted to dial 911 at a hotel where her mother was being attacked but was unable to connect to emergency services because she did not realize she had to dial a separate digit to be connected out. The National Emergency Number Association, a group representing 911 call takers and industry professionals, has stated that they do not know exactly how many callers try to dial 911 and fail for this reason. But officials hear “with some regularity” from law enforcement agencies about callers who couldn’t get through. Senate Bill 2137 would require that when motels and hotels upgrade their phone systems there is no requirement to dial excess digits when calling emergency services. The legislation passed the committee unanimously and will next be heard on the Senate floor.

Defibrillators / Schools — Legislation received final approval in the State Senate on Wednesday to help ensure school personnel have training in how to use automatic external defibrillators (AED). Senate Bill 2088 expands the “Tanner Lee Jameson Act” by requiring schools which have AEDs to include training in the lifesaving device as part of those school’s previously scheduled staff meetings or in-service days on an annual basis. It also requires the instruction be included in the school’s curriculum for juniors and seniors in high school. The Tanner Lee Jameson Act, which was passed in 2010, required that schools must place an AED in the gym or if there is no gym, in a readily accessible location. Jameson died on June 26, 2009 when he collapsed during his middle school basketball game. According the American Heart Association when CPR is performed correctly and an AED is used, survival chances almost triple compared to those who do not receive CPR or an AED. The bill is sponsored by Senator Doug Overbey (R-Maryville).

Autism Spectrum Disorder — On Wednesday, the Senate Health and Welfare Committee approved a bill, sponsored by Senator Doug Overbey (R-Maryville), designed to help those affected by Autism Spectrum Disorder (ASD). Senate Bill 1390 creates the Tennessee Council on Autism Spectrum Disorder – a dedicated committee that will focus solely on aiding those with special needs and their families. Along with establishing a long-term plan for a system of care for individuals with ASD, the Council will also make recommendations and provide leadership in program development regarding matters concerning all levels of ASD services in health care, education, and other adult and adolescent need areas. The Autism Society currently estimates that about one percent of the world population has ASD, affecting over 3.5 million Americans. The organization also notes that Autism Spectrum Disorder is the fastest growing developmental disability in the United States.

Tennessee Named Most Conservative Legislature in U.S. – Tennessee was named as the most conservative legislature in the nation at the Conservative Political Action Conference (CPAC) this past weekend. CPAC is part of the American Conservative Union (ACU) which is a political organization advocating conservative policies. It is the oldest conservative lobbying organization in the country. This is the first year the organization has given the award. The honor was awarded due to the state’s fiscal conservatism, record for cutting taxes and efforts made to attract new businesses to the state.

Prescription Safety Act – Legislation which makes permanent the comprehensive prescription reform set forth in Tennessee’s Prescription Safety Act of 2012 has been approved. That law ensured that healthcare professionals tap into the state’s Controlled Substance Monitoring System when prescribing certain scheduled drugs. Senate Bill 2552 is in response to both the Governor’s Prescription for Success, a multi-year strategic plan to curb opiate abuse, and the 2015 comptroller’s audit of the state’s controlled substance monitoring database and prescription safety laws. In both documents, it was determined that while the state is making great strides in combating the prescription drug epidemic gripping the nation, more can be done. This proposal removes the sunset put in the 2012 public chapter and would seek to remove exemptions from reporting and checking of the controlled substance monitoring database recognized by the comptroller as potential loopholes. Further it increases the state’s ability to partner with federal agencies and other states to share de-identified information to stop prescription leakage from Tennessee’s borders, while still protecting patient records. This proposal, sponsored by Senator Ken Yager (R-Kingston), makes bold but reasonable strides in cutting back the prescription opioids flooding Tennessee streets, while not overburdening healthcare practitioner’s care.

Honoring Nancy Reagan – The State Senate joined Tennesseans and others around the world in mourning the death of Nancy Reagan. Governor Bill Haslam ordered all flags at the State Capitol and State office buildings to be flown at half-staff in honor of the former first lady who died of congestive heart failure on Sunday. On Wednesday, the State Senate stood in a moment of silence followed by prayer for her family and friends, including Senator Todd Gardenhire (R-Chattanooga), who worked for the first lady’s advance team. Gardenhire first met President and Mrs. Reagan in 1976 while campaigning for them. He worked on the presidential advance team in 1983. In 1984, he went to work for the first lady’s advance team for one week each month until President Reagan’s term of office expired in 1989.

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