The Arrest
If you are charged with a criminal offense in Tennessee, you
may or may not be immediately taken into custody. If you are not immediately taken into custody, most likely the
arrest is on a minor charge and you are issued, what the state calls, a citation. Under most circumstances, citations
are orders to appear in court. You may also be ordered to appear at the jail for booking where your fingerprints
and photograph will be taken and then you will be given a court date.
If you are not arrested by citation, then most likely, you are arrested on a criminal warrant. The criminal warrant
has to be sworn to and signed by a Judge or Judicial Magistrate. If a police officer observes you committing a
misdemeanor offense, he may arrest you on the spot and a warrant can be obtained after you are brought to jail.
If you commit a misdemeanor offense outside the presence or observation of a police officer, then, under most circumstances,
an individual will go to a Judge or a Magistrate and swear out a warrant against you for your arrest. This individual
may be a victim or a witness to a crime. In Tennessee, as in most other states, a misdemeanor offense is one that
is punishable by less than one year in jail. Some examples of misdemeanors are: 1st, 2nd and 3rd DUI's, simple
possession of drugs, theft under $500.00, and driving on a revoked license. Any offense that carries a possible
jail sentence of one year or more is considered a felony. Some examples of felonies are: murder, rape, possession
of drugs with the intent to resale, theft of large amounts of money.
In Knox County, Tennessee, after you are arrested, you are taken before a Judicial Magistrate for an arraignment.
Many arraignments are accomplished by video conference between you and the Judicial Commissioner. An arraignment
is your first opportunity to be advised of the charges against you. A Judicial Commissioner who conducts a proper
arraignment will advise you of the charges being brought against you, advise you that you have a right to an attorney,
and then question whether or not you can afford your own attorney. If you indicate that you cannot afford your
own attorney, the Judicial Commissioner will obtain financial information from you to make a determination of whether
or not you qualify for a public defender. In Knox County, and many other counties in the state of Tennessee, a
special county public defender organization is established to provide services to indigent defendants. In some
cases, the Public Defender's Office may have represented an individual that would be in conflict with your particular
situation. In that case, you would be appointed a private attorney who is on an appointment list.
At the arraignment in Knox County, some Judicial Commissioners ask whether or not you wish to plead guilty. There
has been confusion in the past as to whether or not you are really pleading guilty at this point. Please be advised
that you cannot plead guilty in front of a Judicial Commissioner. You can only tell the Commissioner that you wish
to plead guilty. The Judicial Commissioner cannot make a legal determination of your guilt. Only a Judge can pronounce
you guilty.
After being arrested in the state of Tennessee, you are entitled to certain rights. You are entitled to remain
silent. This means you do not have to say anything about the charges against you. No one is supposed to put any
emotional or physical pressure on you to make you talk about the charges. However, sometimes police officers or
detectives will put pressure on you to make you talk about the charge. This pressure is designed only to aid in
your conviction; you do not have to talk to them. You also have a right to legal representation. As discussed earlier,
if you cannot afford your own attorney, an attorney will be appointed for you. You have the absolute right to plead
"not guilty." The laws of the United States and the State of Tennessee declare and provide that you are
presumed innocent unless and until the State, through its prosecutors and witnesses, prove you are guilty beyond
all reasonable doubt. You never have the obligation of proving your innocence. The state must prove you are guilty.
After the arraignment, you will have a court date. The court date is called a preliminary hearing date and, depending
on the type of charge, you will be assigned to one of four different General Sessions courts. If you are arrested
in Memphis, Tennessee, you may be assigned to one of twelve or more General Sessions courts. The specific information
provided here is directed toward the procedures in Knox County, Tennessee. These procedures apply to individuals
arrested by the Knoxville Police Department, the Knox County Sheriff's Department or Tennessee Highway Patrol within
the jurisdiction of Knox County. Many of the procedures of Knox County are similar throughout the state. You are
entitled to a preliminary hearing within ten (10) days of your arrest if you are still in custody. The law provides
that you are entitled to a preliminary hearing within thirty (30) days if you are on bond.
The Bail Bond
A bond is set by the Judicial Commissioner at or about the time of your arrest or arraignment. A bond is to insure
that you will appear for your court date. A bond is not designed to punish you or keep you in jail. Of course,
the more serious the offense, the higher the bond. A bond can be posted in many different ways. When, for instance,
you have a $1,000.00 bond, it may be posted by paying $1,000.00 cash into the court. If you post a cash bond, the
bond money will be returned at the end of all the court proceedings. You may also hire a bondsman to post your
bond. Generally, bondsmen charge a fee of 10% to post your bond. Therefore, a $1,000.00 bond would cost $100.00
in fees if you hired a bondsman. Some bondsmen charge a processing fee of approximately $25.00 to $50.00 on top
of the bond fee. The money you pay the bondsman is non-refundable. Always ask specific questions about the money
you are paying a bondsman to understand exactly what you are getting and what you may or may not get back.
Another way to post bond is by pledging property. In most cases, this way involves pledging real estate or land
to secure your bond. This type of bond takes more time because the court clerk must be assured that the property
is valuable and is not encumbered by mortgages or liens. Usually, the court clerk will take property in an amount
somewhere over the bond amount. For instance, a $1,000.00 bond may require property worth $1,500.00 to $2,000.00.
Some form of trust deed or transfer of property is required granting the court the ownership of the property during
the time the case is active. Again, at the end of the case, the property will be returned as long as the defendant
does not disappear. If a bond is posted and the defendant does disappear, the court will keep the bond. In the
case of a bonding company, the court will make the bonding company pay the full bond and then the bail bondsman
will come looking for you.
Provided by the law offices of:
A. Philip Lomonaco
800 S. Gay St., Suite 2610
Knoxville, TN 37929
(865) 521-7422
www.knox-law.com
izyglty@usit.net