Does Tennessee's requirement that a DUI defendant report ignition interlock installation to the prosecutor violate the right against self-incrimination?

Subject

Whether Tenn. Code Ann. § 40-11-118(d)(1)(B), which requires a defendant on bail for DUI or specified vehicular offenses to submit proof of ignition interlock installation to the District Attorney General within ten days, violates the right against self-incrimination under Article I, § 9 of the Tennessee Constitution.

Plain-English summary

Representative Darren Jernigan asked whether Tennessee's bond-condition reporting requirement violates the state constitution's right against self-incrimination. The AG said no, on two independent grounds.

First, the right against self-incrimination is a "fundamental trial right." Patane (2004), Chavez v. Martinez (2003). It is implicated only when a disclosure can reasonably be used in a criminal trial. The bond-condition reporting required by § 40-11-118(d)(1)(B) is a bail compliance check, not a trial-prep step. Even if a defendant reported noncompliance (the statute requires only a compliance demonstration), the consequence under § 40-11-141(b) is bond revocation, not a new criminal prosecution. So no information from this report would be used "at trial" against the defendant for the underlying DUI or vehicular offense.

Second, the right protects against incriminating disclosures. Fisher v. United States (1976) defines the protected zone as "compelled testimonial communications" that demonstrate "involvement in criminal activity." Reporting compliance with a bond condition is favorable to the defendant; it is not incriminating. And the statute does not require a defendant to report noncompliance.

The opinion notes Article I, § 9 of the Tennessee Constitution has been interpreted as no broader than the federal Fifth Amendment in this context (Walton, Martin). One narrow voluntariness difference under Smith does not apply here.

What this means for you

If you are charged with DUI, vehicular assault, or vehicular homicide in Tennessee

If a court orders ignition interlock as a bond condition under § 40-11-118(d)(1)(A), you must install the device and submit proof of installation to the District Attorney General's office within ten days of release. The reporting requirement does not violate your right against self-incrimination. Comply with the requirement on time. Failure to comply will likely result in bond revocation under § 40-11-141(b). Talk to your defense attorney about how the interlock requirement interacts with the rest of your case.

If you are a defense attorney

The AG opinion forecloses a self-incrimination challenge to the bond-condition reporting requirement. Direct any constitutional concerns to other aspects of the bond condition (excessive bond, lack of individualized hearing, ability-to-pay considerations on installation cost). Section 40-11-118(b) factors should be analyzed for each defendant.

If you are a prosecutor

The compliance reports are administrative, not testimonial trial evidence. Use them to track bond compliance and seek revocation when warranted, but do not introduce the reports as substantive evidence at trial of the DUI or vehicular charge. Their evidentiary value at trial is limited; their bond-management value is the point.

If you are a Tennessee judge setting bond

When the statutory factors are met under § 40-11-118(d)(1)(A), interlock is mandatory. Set up the ten-day reporting requirement clearly in the order. Make sure the defendant has notice and a path to comply.

If you are a bond company

Build the ten-day interlock installation and reporting into your client tracking. Failure can result in bond revocation, which means liability and forfeiture exposure for the surety.

If you are a state legislator considering changes

The constitutional ground here is solid. The reporting requirement is a bond-compliance mechanism, not a trial evidence channel. Any expansion of the reporting framework should keep the same character to maintain the constitutional analysis.

Common questions

Q: What if I report noncompliance? Will that be used against me at the DUI trial?
A: The statute does not require you to report noncompliance; it requires you to demonstrate compliance. Even if you did report noncompliance, the AG opinion explains that noncompliance alone is not a criminal offense, only a basis for bond revocation. The AG does not draw a categorical bar against using such information at trial, but the analysis turns on whether the disclosure is incriminating in itself; bond noncompliance is not the underlying criminal activity.

Q: Does the AG's opinion mean my interlock data is admissible at trial?
A: The opinion does not address admissibility of interlock data at trial. It addresses whether the bond reporting requirement violates the right against self-incrimination. Different evidentiary rules apply to interlock data when it comes in via subpoena, court order, or trial subpoena.

Q: What if I cannot afford to install the interlock?
A: This opinion does not address ability-to-pay or indigent-defendant questions. Other Tennessee statutes and case law govern hardship issues for interlock requirements. Discuss with your defense attorney.

Q: Is the ignition interlock condition mandatory?
A: Section 40-11-118(d)(1)(A) makes interlock mandatory when a defendant has been charged with DUI, vehicular assault, aggravated vehicular assault, vehicular homicide, or aggravated vehicular homicide and another statutory qualifying factor is met. The factor depends on prior convictions, BAC level, or other circumstances.

Q: How quickly must I install the interlock?
A: Section 40-11-118(d)(1)(B) requires you to submit proof of installation within ten days of release on bail. So practically, you should arrange installation immediately upon release.

Q: Does this opinion apply to non-vehicular bond conditions?
A: No. The opinion is specifically about § 40-11-118(d)(1)(B). The general principle (bond-compliance reporting is not a trial-evidence channel) likely extends, but each compliance requirement should be evaluated on its own.

Background and statutory framework

Tennessee uses ignition interlock devices as a bond condition for defendants charged with serious driving-under-the-influence and vehicular violence offenses. Section 40-11-118(d)(1)(A) makes interlock mandatory when a defendant is charged with DUI, vehicular assault, aggravated vehicular assault, vehicular homicide, or aggravated vehicular homicide and a second statutory factor is met. Subsection (d)(1)(B) imposes the ten-day proof-of-installation reporting requirement.

The Tennessee Constitution's self-incrimination clause (Art. I, § 9) protects "in all criminal prosecutions" against being "compelled to give evidence against himself." The federal Fifth Amendment is the parallel federal protection (made applicable to states via Malloy v. Hogan). Tennessee courts have read Article I, § 9 as no broader than the Fifth Amendment in this context (Walton, Martin), with one narrow voluntariness difference (Smith) that doesn't apply here.

Two doctrinal limits define the scope of the protection. First, it is "a fundamental trial right" (Patane); a constitutional violation "occurs only at trial" (Chavez). Second, the disclosure must be incriminating; that is, it must demonstrate "involvement in criminal activity" (Fisher; Hoffman; Sweets; Ritchie). Compliance reports do neither: they don't go to trial as evidence of the underlying offense, and they are favorable rather than incriminating.

Bond revocation under § 40-11-141(b) is the consequence of violating a bond condition. It is a separate proceeding from the underlying criminal trial; the focus is whether the defendant complied with the conditions of release, not whether the defendant committed the underlying offense.

Citations

Constitutional and statutory provisions:
- U.S. Const. amend. V; Tenn. Const. art. I, § 9
- Tenn. Code Ann. § 40-11-118(d)(1)(A), (B)
- Tenn. Code Ann. § 40-11-141(b)

Cases:
- Malloy v. Hogan, 378 U.S. 1 (1964)
- State v. Walton, 41 S.W.3d 75 (Tenn. 2001); State v. Martin, 950 S.W.2d 20 (Tenn. 1997); State v. Smith, 834 S.W.2d 915 (Tenn. 1992)
- Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995); Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964)
- United States v. Patane, 542 U.S. 630 (2004); Withrow v. Williams, 507 U.S. 680 (1993); Chavez v. Martinez, 538 U.S. 760 (2003); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
- Fisher v. United States, 425 U.S. 391 (1976); Hoffman v. United States, 341 U.S. 479 (1951); United States v. Sweets, 526 F.3d 122 (4th Cir. 2007); United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-004.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 21, 2024
Opinion No. 24-004

Constitutionality of Tenn. Code Ann. § 40-11-118(d)(1)(B)

Question

Does Tenn. Code Ann. § 40-11-118(d)(1)(B), requiring a defendant to report compliance or non-compliance with a bond condition to the District Attorney General, violate article I, section 9 of the Tennessee Constitution, by having the defendant communicate to the District Attorney General evidence against him or herself?

Opinion

No. Tenn. Code Ann. § 40-11-118(d)(1)(B) does not implicate protections against self-incrimination provided under article I, section 9 of the Tennessee Constitution.

ANALYSIS

Tennessee Code Annotated § 40-11-118(d) governs a trial court's determination of "the amount and conditions of bail to be imposed upon a defendant who has been charged with driving under the influence of an intoxicant . . . vehicular assault . . . aggravated vehicular assault . . . vehicular homicide . . . or aggravated vehicular homicide." Subdivision (d)(1)(A) provides that, when a defendant has been charged with one of those enumerated offenses and another enumerated qualifying factor is met, "the court shall require the defendant to operate only a motor vehicle equipped with a functioning ignition interlock device."

Tennessee Code Annotated § 40-11-118(d)(1)(B) provides that "[i]f the court imposes a condition under subdivision (d)(1)(A), then the defendant must demonstrate compliance with the condition by submitting proof of ignition interlock installation to the district attorney general's office within ten (10) days of being released on bail."

For the reasons below, subdivision (d)(1)(B) does not violate constitutional protections against self-incrimination.

The Fifth Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6 (1964), provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The corresponding provision of the Tennessee Constitution provides "[t]hat in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself." Tenn. Const. art. I, § 9. Courts have "traditionally interpreted article I, [section] 9 to be no broader than the Fifth Amendment." State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (quoting State v. Martin, 950 S.W.2d 20, 23 (Tenn. 1997)).

The protection against self-incrimination can be invoked in, or arise during, "any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995) (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 94 (1964)). But it "does not protect witnesses in circumstances" which "may subject them only to civil liabilities." Id. Instead, it only protects disclosure which may reasonably be used in a "criminal prosecution." Id. This constitutional protection from self-incrimination is "a fundamental trial right." United States v. Patane, 542 U.S. 630, 641 (2004) (emphasis in original) (quoting Withrow v. Williams, 507 U.S. 680, 691 (1993)); Chavez v. Martinez, 538 U.S. 760, 767 (2003) ("[A] constitutional violation occurs only at trial.") (emphasis in original) (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990)). In other words, article I, section 9 is only implicated where a disclosure can reasonably be used in a criminal trial.

Moreover, constitutional protections against self-incrimination only apply when the information is incriminating in nature. Fisher v. United States, 425 U.S. 391, 409 (1976) (ruling that the Fifth Amendment "protects a person only against being incriminated by his own compelled testimonial communications"); Hoffman v. United States, 341 U.S. 479, 486-87 (1951); see also United States v. Sweets, 526 F.3d 122, 124 (4th Cir. 2007); United States v. Ritchie, 15 F.3d 592, 602 (6th Cir. 1994). "Incriminating" is defined as "[d]emonstrating or indicating involvement in criminal activity." Incriminating, Black's Law Dictionary (11th Ed. 2019).

Tennessee Code Annotated § 40-11-118(d)(1)(B) requires a defendant to "demonstrate compliance with the condition" of bond. Any compelled communications showing compliance can only be favorable toward a defendant and would not be incriminating. Subdivision (d)(1)(B) does not require a defendant to report noncompliance with a condition of bond. Even if it did, noncompliance alone is not criminal activity; instead, a violation of this bond condition could lead, at most, to bond revocation. Tenn. Code Ann. § 40-11-141(b) (only permitting a court to "revoke and terminate the defendant's bond" upon the violation of a condition of release). So, any compelled communication to a District Attorney General regarding compliance with a condition of bond pursuant to the statute would not be used "at trial" and therefore is not within the scope of the constitutional protection from self-incrimination.

Any communication compelled by Tenn. Code Ann. § 40-11-118(d)(1)(B) does not implicate protections against self-incrimination under Article I, Section 9 of the Tennessee Constitution.

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

RONALD L. COLEMAN
Senior Assistant Attorney General

Requested by:
The Honorable Darren Jernigan
State Representative
425 Rep. John Lewis Way N.
Suite 428, Cordell Hull Bldg.
Nashville, TN 37243