Lee Davis: New Tax For Diversion Applicants Is A Bad Idea

Saturday, March 31, 2012 - by Attorney Lee Davis
Lee Davis
Lee Davis

The Tennessee House of Representatives passed a new tax this week that will require people to pay to have their name cleared upon the completion of diversion. HB 2774 (here), sponsored by Rep. Eric Watson, Cleveland, introduces the new tax.  The new part is a $100.00 tax that must be paid to the court when requesting diversion.  Also added is an increase in taxes that will escalate the amount required to clear one's name to $350.00. Thus, the total cost to have a record expunged after diversion will be $550.00 when the local fee for Hamilton County is added.  The house bill has been sent to the TN Senate for passage.

If signed by Gov. Haslam, the law will go into effect July 1st.  This is a bad idea.

Who will this bill affect, and what is diversion? Let's start with diversion; there are two types:  judicial diversion and pretrial diversion.

Judicial diversion is a way many minor cases are settled for first time offenders.  Let's say you have a daughter who is home from college and gets arrested for using her sister's ID to get into a club or who actually drinks in the club.  The offending person is potentially guilty of underage drinking and using a false ID, both crimes.  If the person accepts responsibility and has no criminal record, the court may defer court proceedings without entering a judgment of guilty--with the consent of the prosecutor.  Under this example, the student will now pay $100 to be considered for diversion and $350 more (plus $100 local fee) to have their record expunged after completing diversion.  Previously, the person paid $150.

Pretrial diversion is for those with the least culpability who find themselves ensnared in the legal system. Let's say a person writes a check for a service and then disputes the service, placing a stop-payment order on the check.  The merchant then swears out a criminal warrant for theft of services.  Under this scenario each person believes the other is the culprit. The check writer may find herself in court, charged with a crime.  If the district attorney believes the explanation, he may offer the person pretrial diversion with an understanding that the case will be dismissed and expunged.  Most people, completely innocent people, will accept this disposition rather than endure additional trips to the courthouse to prove their innocence. Under the new law, this person will also be forced to pay $550 to have her good name cleared for actions that she believed were completely honest and ethical.

There is good reason to have records expunged.  Background checks are routine for employers, higher education and many other reasons.  A minor charge--even when explained--often will result in a job or school denial when found on a background check. Diversion is granted one time and only for good cause. The result is that many ordinary people may have their records expunged and reputation restored upon successful completion of diversion.  A modest fee for the service has always been the rule.  This week's action by Rep. Watson and the house will place a new heavy financial burden on many. This new tax will effect every citizen who seeks diversion. Without paying the new application tax, there will be no consideration of an application for diversion.  Without payment of the increased tax, no record will be expunged.  Many across the state who cannot afford these new and increased taxes will be harmed.

(Lee Davis is a Chattanooga attorney who can be reached at lee@davis-hoss.com or at 266-0605.)


Chattanooga Chamber Calendar Of Events March 26

TUESDAY, MARCH 27   Reality Check at Howard High School 9:15 a.m. to 3:30 p.m. Howard High School : 2500 Market St Reality Check teaches ninth graders budgeting and emphasizes the connection between education and income by ... (click for more)

Alexander Says Funding Bill Includes $663 Million For Uranium Processing Facility

United States Senator Lamar Alexander Wednesday said the government funding bill provides $663 million for the Uranium Processing Facility at the Y-12 National Security Complex -- one of the largest construction sites in the country -- with an overall budget of $6.5 billion and scheduled to be completed in 2025. The bill also provides $639 million for cleanup of former Cold War ... (click for more)

Sheriff Hammond Says $4 Million Needed To Put SROs In All Hamilton County Schools

Sheriff Jim Hammond on Thursday night told members of the County School Board that $4 million is needed to provide School Resource Officers for all of the 79 schools. He said currently there are 31 SROs in 29 schools, leaving 50 uncovered. School Board member Rhonda Thurman said she believes the community could come together to provide the necessary funding. "It's something ... (click for more)

Judge Philyaw Denies He Did Not Reappoint Magistrate Because She Was Gay

Juvenile Court Judge Rob Philyaw told a federal jury on Thursday that the fact Elizabeth Gentzler is openly gay had no part in his decision not to reappoint her as a magistrate. "Absolutely not. I have a lot of gay friends, family and acquaintances," he said. However, a court officer at Juvenile Court sided with Ms. Gentzler. Jimmie Cannon said, "Ninety-nine percent ... (click for more)

Avoid Underage Drinking And Other Prom Drama

My high school prom took a dramatic turn when two guys got their tuxedo jackets mixed up. One of them belonged to my date, who kindly offered to keep my wallet in his pocket. That’s the jacket another young man mistakenly grabbed off the back of a chair before heading to an underage drinking party that got shut down by police well after midnight—as kids scattered in every direction.  ... (click for more)

Roy Exum: ‘In God We Trust …And Protecting Our School Children

On a day that the Tennessee Legislature overwhelmingly approved a bill that would prominently display the words “In God We Trust” in every school building in the state, the Hamilton County School Board gave my boy Bad Little Johnny cause to get a magic market and scribble underneath, “but ‘Everybody Else Is Gonna’ Need A Pistol!’” Hamilton County Sheriff Jim Hammond, who was ... (click for more)