Can Tennessee's Electronic Monitoring Indigency Fund pay for a DUI defendant's GPS ankle monitor?

Subject

Opinion No. 18-38, Use of the Electronic Monitoring Indigency Fund to Pay for Global Positioning Monitoring Devices, August 16, 2018

Plain-English summary

The State Treasurer asked whether Tennessee's Electronic Monitoring Indigency Fund, which covers monitoring-device costs for indigent DUI defendants, also covers GPS ankle monitors. The AG's answer was no.

The fund is created by Tenn. Code Ann. § 55-10-419 and "shall be used to pay" for indigent defendants the "costs associated with the use of a transdermal monitoring device or other alternative alcohol or drug monitoring device, if required by the court pursuant to § 55-10-402(h)(7)." A transdermal monitor (defined in § 55-10-424) is a device attached to a person and designed to test alcohol or drug content through the skin, monitoring the person's chemistry "regardless of the person's location."

A GPS monitor does the opposite. It tracks location, not chemistry. § 40-11-152(a)(2) defines a "global positioning monitoring system" as a system that "electronically determines and reports the location of an individual" through transmission of latitude/longitude data via satellite. The plain-meaning analysis under Runions v. Jackson-Madison County Gen. Hosp. Dist., 549 S.W.3d 77, 85 (Tenn. 2018), put GPS monitors outside the "alcohol or drug monitoring device" category.

The DUI statute itself confirms the split. § 55-10-402(h)(7)(A) authorizes courts to order transdermal or other alcohol/drug monitors and ties indigent funding to § 55-10-419. § 55-10-402(h)(7)(C) separately authorizes courts to order a GPS system "pursuant to § 40-11-152" and directs indigent-payment relief to § 40-11-152(h), which lets the magistrate accept community service in lieu of monitoring fees. The Legislature, in other words, addressed both kinds of monitors but routed indigent payments through different mechanisms. If it had wanted the indigency fund to cover GPS, it would have said so.

The practical takeaway from the opinion: the fund pays for transdermal alcohol monitors and other alcohol/drug-detection devices for indigent DUI defendants. For indigent defendants ordered to wear a GPS monitor, the relief comes from community service authorized by § 40-11-152(h), not from the indigency fund.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tennessee's DUI sentencing statute lets a court order an offender to attend substance treatment as a condition of probation (Tenn. Code Ann. § 55-10-402(a)). When the court orders intensive outpatient treatment, § 55-10-402(h)(7) gives it three coordinated tools:

• Subsection (A): order use of a transdermal monitor or "other alternative alcohol or drug monitoring device." If the defendant is indigent, the defendant pays what they can, and the rest comes from the electronic monitoring indigency fund created in § 55-10-419.
• Subsection (C): order use of a global positioning monitoring system "pursuant to § 40-11-152." If the defendant is indigent, the defendant performs community service in lieu of paying costs (§ 40-11-152(h)).

Subsection (B), which the opinion does not focus on, addresses related procedural points.

The fund itself, in § 55-10-419(a)(1)(A)(i), "shall be used to pay" indigent defendants' costs of "a transdermal monitoring device or other alternative alcohol or drug monitoring device." Subsection (a)(1)(A)(ii) repeats the same coverage scope. The fund is administered by the State Treasurer (which is why this question came from the Treasurer's office in the first place).

The category definitions are precise. § 55-10-424 defines "transdermal monitoring device" as "any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin," with the device working "regardless of the person's location." § 40-11-152(a)(2) defines a "global positioning monitoring system" as one that "electronically determines and reports the location of an individual" via satellite-relayed latitude and longitude. The two categories don't overlap: one tests chemistry without regard to location; the other tracks location without testing chemistry.

Statutory construction came from Runions, 549 S.W.3d at 85: when statutory language is clear and unambiguous, the words get their plain meaning and ordinary usage in context, "without a forced interpretation." Combined with the fact that the Legislature created two separate funding mechanisms in § 55-10-402(h)(7)(A) and (C), the AG concluded that GPS monitors and chemistry monitors are statutorily distinct.

Common questions

What does the Electronic Monitoring Indigency Fund actually cover?

For indigent DUI defendants, the fund covers the costs of (1) transdermal alcohol/drug monitors and (2) other alcohol or drug monitoring devices, when ordered by the court under § 55-10-402(h)(7). It does not cover GPS location monitors.

What's the difference between a transdermal monitor and a GPS monitor?

A transdermal monitor (often called a SCRAM bracelet) tests for alcohol or drugs through the skin. It does not care where the wearer is, only what is in their bloodstream. A GPS monitor reports the wearer's location through satellite tracking but does not test for alcohol or drugs. The opinion treated these as functionally and statutorily distinct.

What if a court orders a GPS monitor for an indigent DUI defendant?

The relief comes from § 40-11-152(h), which lets the magistrate accept community service in lieu of paying GPS costs once the magistrate determines the defendant is indigent. The Electronic Monitoring Indigency Fund is not the source.

Can the fund pay for a device that does both alcohol monitoring and GPS tracking?

The opinion did not address combination devices specifically. The plain-meaning analysis suggests that the alcohol/drug-monitoring portion would be covered while the GPS portion would not. In practice, courts ordering a combined device may need to allocate costs between the two functions or rely on the community-service mechanism for the GPS portion. This is a fact-specific question on which a Treasury Department determination or further AG guidance might be needed.

Why didn't the AG just read the statute broadly to cover both?

Because the Legislature wrote two separate funding mechanisms into the same statute. § 55-10-402(h)(7)(A) channels indigent payments through the indigency fund; § 55-10-402(h)(7)(C) channels them through community service under § 40-11-152(h). The AG treated this dual structure as deliberate: if the Legislature had wanted the fund to cover GPS, it would have referenced § 55-10-419 in subsection (C) the same way it did in subsection (A).

Does this opinion bind the courts or the Treasurer?

No. Tennessee AG opinions are persuasive authority, not binding precedent. They guide state agencies, including the Treasury Department's administration of the indigency fund. A court reviewing a denial of fund payment in a contested case would not be bound by the opinion.

Citations

Statutes

• Tenn. Code Ann. § 55-10-402 (DUI sentencing; intensive outpatient treatment; subsection (h)(7) authorizes monitoring devices)
• Tenn. Code Ann. § 55-10-419 (Electronic Monitoring Indigency Fund)
• Tenn. Code Ann. § 55-10-424 (definition of "transdermal monitoring device")
• Tenn. Code Ann. § 40-11-152 (GPS monitoring system; subsection (h) allows community service for indigent defendants)

Cases

• Runions v. Jackson-Madison County Gen. Hosp. Dist., 549 S.W.3d 77 (Tenn. 2018) (plain-meaning rule of statutory construction)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-38.pdf

Original opinion text

Opinion No. 18-38

Use of the Electronic Monitoring Indigency Fund to Pay for Global Positioning Monitoring Devices

Question

Does "other alternative alcohol or drug monitoring device" as used in Tenn. Code Ann. § 55-10-419(a)(1)(A)(ii) include a global positioning monitoring device?

Opinion

No.

ANALYSIS

Tennessee courts have statutory authority to order an individual convicted of driving under the influence of alcohol or drugs to attend a substance treatment program as a condition of probation. Tenn. Code Ann. § 55-10-402(a). If a court orders an offender to participate in an intensive outpatient treatment program, the court may also order:

The use of transdermal monitoring devices or other alternative alcohol or drug monitoring devices. If the court determines that the person is indigent, the court shall order the person to pay any portion of the costs of such a device for which the person has the ability to pay, as determined by the court. Any portion of the costs of such a device that the person is unable to pay shall come from the electronic monitoring indigency fund established pursuant to § 55-10-419 . . . .

Id. § 55-10-402(h)(7)(A) (emphasis added).

The "electronic monitoring indigency fund" referred to in this subsection (A) is a fund created in Tenn. Code Ann. § 55-10-419 that "shall be used to pay" for persons deemed by a court to be indigent "the costs associated with the use of a transdermal monitoring device or other alternative alcohol or drug monitoring device, if required by the court pursuant to § 55-10-402(h)(7)." Id. § 55-10-419(a)(1)(A)(i).

Separately, under § 55-10-402(h)(7)(C), the court may order the "use of a global positioning monitoring system pursuant to § 40-11-152." Use of "a global positioning monitoring system" in this subsection (C) is expressly tied to Tenn. Code Ann. § 40-11-152, and not at all to § 55-10-419, the electronic monitoring indigency fund. In other words, if, under its § 55-10-402(h)(7)(C) authority, a court orders use of a global positioning monitoring system, then § 40-11-152 governs how the system is to be used. And § 40-11-152 requires the defendant ordered to use the system to "pay the costs associated with" use of the system, § 40-11-152(b), but allows the defendant to "perform community service in lieu of paying the costs required by subsection (b) if the magistrate determines that the defendant is indigent." Id. § 40-11-152(h).

A transdermal monitoring device is defined by statute as "any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin . . . ." Id. § 55-10-424. Moreover, a transdermal monitoring device is specifically for monitoring alcohol or drug content in a person "regardless of the person's location." Id.

A global positioning monitoring device, on the other hand, monitors a person's location but does not monitor drugs or alcohol in a person. See id. § 40-11-152(a)(2) (defining global positioning monitoring system as a "system that electronically determines and reports the location of an individual through the use of a transmitter . . . that transmits latitude and longitude data to a monitoring entity through global positioning satellite technology").

Under basic principles of statutory construction, the phrase "other alternative alcohol or drug monitoring device" in § 55-10-419(a)(1)(A)(ii) does not include a global positioning monitoring device.

When statutory language is clear and unambiguous, a court must "accord the language its plain meaning and ordinary usage in the context within which it appears, without a forced interpretation." Runions v. Jackson-Madison County Gen. Hosp. Dist., 549 S.W.3d 77, 85 (Tenn. 2018). By its plain language, § 55-10-419(a)(1)(A)(ii) clearly and unambiguously applies only to devices that monitor alcohol or drugs in a person, i.e., "transdermal monitoring devices," which are defined as instruments "designed to test the alcohol or drug content in a person," and "other alternative alcohol or drug monitoring device[s]." Since a global positioning monitoring device does not monitor alcohol or drugs, a global positioning monitoring device is not an "other alternative alcohol or drug monitoring device" within the meaning of § 55-10-419(a)(1)(A)(ii).

For the same reason, a global positioning monitoring device is not an "other alternative alcohol or drug monitoring device" within the meaning of Tenn. Code Ann. § 55-10-402(h)(7)(A). Subsection (C) of § 55-10-402(h)(7) confirms this conclusion. Subsection (C) deals with global positioning monitoring devices separately from alcohol or drug monitoring devices within the context of § 55-10-402(h)(7) and, with its cross-reference to § 40-11-152, subsection (C) provides separate and different relief from payment of costs for indigent persons ordered to use a global positioning monitoring device. Indigent persons ordered to use a global positioning monitoring device may be relieved of payment for the device if they perform community service, whereas indigent persons ordered to use a transdermal or alternative drug or alcohol monitoring device may be relieved of payment through the electronic monitoring indigency fund.

Had the legislature intended the § 55-10-419 electronic monitoring indigency fund to be used to pay for costs associated with location monitoring devices, it would have expressly referenced that funding mechanism in subsection (C) as it did in subsection (A) with respect to alcohol or drug monitoring devices. By addressing the two types of monitoring devices in separate subsections and by providing different relief for indigent persons with respect to each type, the statutory language and context make clear that the legislature considered global positioning monitoring devices to be distinct from and not included in "other alternative alcohol or drug monitoring devices."

In sum, the plain and unambiguous language of Tenn. Code Ann. § 55-10-419(a)(1)(A)(ii) does not allow for the payment on behalf of indigent persons of costs associated with global positioning monitoring systems from the electronic monitoring indigency fund. It allows for the payment of costs for indigents from that fund only for "a transdermal monitoring device or other alternative alcohol or drug monitoring device, if required by the court pursuant to § 55-10-402(h)(7)." And the phrase "other alternative alcohol or drug monitoring device" as used in Tenn. Code Ann. § 55-10-419(a)(1)(A)(ii) does not include a global positioning monitoring device.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable David H. Lillard, Jr.
State Treasurer
502 Deaderick Street
Andrew Jackson Building, 13th Floor
Nashville, TN 37243