Challenging Field Sobriety Tests in Tennessee

DUI Evidence

Challenging Field Sobriety Tests in Tennessee

Challenging field sobriety tests starts somewhere most people do not expect: Tennessee’s implied consent statute does not mention them at all. What they are, what NHTSA says counts as failing one, and where a challenge actually lands.

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The Part Nobody Publishes

Three Tests, Fifteen Clues, and a Decision Point of Two

The standardized battery comes from the National Highway Traffic Safety Administration and it is not subjective in the way people assume. Each test has a fixed number of validated clues, and on each one the decision point is two or more.

NHTSA standardized field sobriety tests
Test	Validated clues	Decision point
Horizontal gaze nystagmus	3	2 or more
Walk and turn	8	2 or more
One leg stand	4	2 or more

On the eye test the three clues are lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to forty-five degrees. Two of those three is the decision point, which is a low bar and a specific one.

This matters because it turns a vague argument into a checkable one. An officer’s report that says a driver “performed poorly” is not the standard. The standard is which numbered clues were observed, on which test, and whether the report and the footage agree about them.

Where the Real Challenge Lives

The Tests Are Validated Only When They Are Given Correctly

NHTSA’s own manual states that its procedures describe how the tests are to be administered “under ideal conditions,” and that the battery has been scientifically validated only when conducted according to the established protocol. Administration that departs from the protocol is not the validated test.

That is the strongest ground available, and it is strong precisely because it is objective. It does not require arguing that an officer was biased or dishonest. It requires comparing what happened on the recording to what the manual says was supposed to happen. Instructions given, demonstration performed, the surface, the lighting, whether the driver was asked about physical limitations before being asked to stand on one leg.

The page this one replaces led with officer bias. That argument is hard to make, harder to prove, and unnecessary when a procedural deviation is visible on the body camera.

Keep the Charge in View

There Is No Field Sobriety Score in the DUI Statute

Section 55-10-401(1) requires that a substance impair the driver’s ability to safely operate a motor vehicle “by depriving the driver of the clearness of mind and control of oneself that the driver would otherwise possess.” Field sobriety tests appear nowhere in it. They are evidence offered toward that element, not the element itself.

Worth holding on to, because these cases can drift into a debate about whether somebody touched heel to toe. The question in front of the court is the statutory one. Six clues on a walk and turn is a fact a jury may consider on the way to answering it, and so is everything else about the stop.

The same logic runs the other way. A clean performance on all three tests does not end a case where a number exists, because § 55-10-401(2) supplies a separate route at 0.08% alcohol concentration. Where there is no number, which is every drug case, the tests carry much more weight. Our prescription medication DUI post covers that situation, and the implied consent page covers the breath and blood side.

Before Anyone Was Drinking

What Else Produces the Same Clues

The surface and the conditions

The manual describes ideal conditions. A sloped shoulder, gravel, rain, traffic passing three feet away and headlights in the eyes are not ideal conditions, and each of them is documented on the recording rather than argued from memory.
Physical and medical baseline

Inner ear problems, back and knee injuries, neurological conditions, age and weight all affect balance tests. The question worth asking is whether the officer asked about any of it before the test, because the manual contemplates that inquiry and the footage shows whether it happened.
Footwear and what the driver was wearing

Heel to toe on a straight line in boots, dress shoes or heels is a different task than in trainers, and it is another thing the video answers without anyone having to remember it.
The stop itself

Before any of this, there has to have been a lawful basis for the stop and for the detention that followed. If that is in question, the tests and everything after them are downstream of it.

None of that predicts an outcome. It describes what is actually examinable in a case built on these tests, which is a different and more useful thing than a list of arguments.

Common Questions

Challenging Field Sobriety Tests FAQ

Do I have to take field sobriety tests in Tennessee?

Section 55-10-406 deems the operator to have consented to breath tests, blood tests, or both. Field sobriety tests are not named in it and no penalty in that statute attaches to declining them. That is not the same as saying a refusal can never be mentioned in court, which is a separate question.

Is a urine test part of implied consent?

Not under § 55-10-406, which refers to breath tests, blood tests, or both tests. Descriptions of Tennessee implied consent that include urine are describing something the section does not say.

How many clues does it take to fail?

Under the NHTSA battery the decision point is two or more clues on each test. Horizontal gaze nystagmus has three validated clues, walk and turn has eight, and one leg stand has four.

What is the strongest way to challenge these tests?

Usually administration. NHTSA validates the battery only when it is conducted according to the established protocol and describes its procedures as applying under ideal conditions. Comparing the recording to the protocol is objective in a way that arguing about an officer’s judgment is not.

Can I be convicted on field sobriety tests alone?

The statute does not mention them. Section 55-10-401(1) asks whether the driver was impaired by depriving the driver of the clearness of mind and control of oneself the driver would otherwise possess. Field sobriety tests are evidence offered toward that question rather than a separate test the statute sets.

Does a medical condition matter?

Balance and coordination tests are affected by inner ear conditions, injuries, neurological conditions, age and weight. Whether the officer asked about physical limitations before administering the test is visible on the recording and is usually where that issue gets examined.

If the Tests Are In Your Case

Get the Footage Before Anything Else

Austin Tomlinson defends DUI cases in Davidson County and across Middle Tennessee, and takes every case himself. Body and dash camera recordings are kept on a retention schedule and then overwritten, so a preservation request early is worth more than any argument made late.

September 18, 2026

Disorderly Conduct and Public Intoxication in Nashville

Nashville Nightlife Charges

Disorderly Conduct and Public Intoxication in Nashville

Disorderly conduct and public intoxication are not what their names suggest. Being loud is not disorderly conduct and being drunk in public is not public intoxication. Both statutes require more.

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Both Charges Require an Element People Do Not Know About

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

Disorderly conduct under § 39-17-305 requires acting in a public place “with intent to cause public annoyance or alarm.” Public intoxication under § 39-17-310 requires being under the influence “to the degree that” somebody is endangered or people nearby are unreasonably annoyed. Both are Class C misdemeanors.

A Class C misdemeanor is the lowest grade Tennessee has, and it is still a criminal conviction that shows up on a background check for the rest of your life. That combination, low stakes on paper and permanent in practice, is exactly why disorderly conduct and public intoxication get pleaded out without anyone reading what the State would have had to prove.

§ 39-17-305

Disorderly Conduct Has Three Requirements, Not One

Subsection (a) reaches a person who, “in a public place and with intent to cause public annoyance or alarm,” does one of three things. Public place, that specific intent, and a listed act. Take away any one of the three and the subsection is not met.

The three acts are:

Fighting, or violent or threatening behavior

The statute says “engages in fighting or in violent or threatening behavior.” Arguing loudly is not on the list.
Refusing an order to disperse, in narrow circumstances

This is the one most often misdescribed. The statute reaches refusal to obey “an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency.” Not any instruction from an officer, and not general crowd control. There has to be a fire, a hazard or an emergency, and dangerous proximity to it.
Creating a hazardous or physically offensive condition

“By any act that serves no legitimate purpose.” The no-legitimate-purpose clause is part of the element rather than commentary on it.

Subsection (b) is a separate route to the same offense and reads differently. It reaches a person “who makes unreasonable noise that prevents others from carrying on lawful activities.” Preventing, not merely bothering. On a street built around amplified live music, what counts as unreasonable noise that prevents lawful activity is a genuine question rather than an obvious one.

§ 39-17-310

Being Drunk in Public Is Not Public Intoxication

The offense is committed by a person who appears in a public place under the influence of “a controlled substance, controlled substance analogue or any other intoxicating substance to the degree that” one of three things is true: the offender may be endangered, there is endangerment to other persons or property, or the offender unreasonably annoys people in the vicinity.

The words to the degree that are doing the work. Intoxication alone is not the offense, however visible it is. The statute requires the intoxication to have reached a level that produces one of those three consequences, and which one the State is relying on is a fair question to ask of any such charge.

This is the opposite of what most writing on the subject says, including the page this one replaces, which told readers that simply being visibly impaired in a way an officer deems unsafe is enough. It is a reasonable description of how arrests sometimes happen. It is not a description of the statute, and the difference between those two things is the entire value of knowing what the charge requires.

A Shared Element

Public Place Reaches Further Than the Street

Section 39-11-106(a)(32) defines a public place as “a place to which the public or a group of persons has access”, expressly including “places of amusement … places of business … and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.”

A honky-tonk is a place of business and a place of amusement. A hotel lobby is named in the definition. The corridor outside a hotel room is a public place; the room itself is not. Visitors who assume they got somewhere private when they came in off the street are often surprised by where that line actually sits.

The One Nobody Warns You About

Blocking the Sidewalk Is a More Serious Charge Than Either of These

Section 39-17-307 makes it an offense to, without legal privilege, intentionally, knowingly or recklessly obstruct “a highway, street, sidewalk, railway, waterway, elevator, aisle, or hallway to which the public, or a substantial portion of the public, has access.” That is a Class A misdemeanor, two full grades above disorderly conduct.

Grades, with § 40-35-111(e)
Offense	Section	Class and ceiling
Disorderly conduct	§ 39-17-305	Class C, 30 days, $50
Public intoxication	§ 39-17-310	Class C, 30 days, $50
Disobeying an officer’s reasonable order to move	§ 39-17-307(a)(2)	Class C, 30 days, $50
Obstructing a street or sidewalk	§ 39-17-307(a)(1)	Class A 11 months 29 days, $2,500

Note the split inside § 39-17-307. Refusing to move when asked is the Class C. Actually obstructing the passageway is the Class A. The statute also provides an enhancement to a Class E felony where the obstruction prevents emergency vehicle access, impedes first responders, or blocks emergency exits.

This matters on Lower Broadway specifically, where a crowd on a sidewalk outside a venue is the ordinary state of the world on a Friday night. If a charge arrives out of that situation, which section it was written under is worth checking before anything else, because the difference between a Class C and a Class A is the difference between thirty days and nearly a year of exposure.

The Costly Shortcut

Paying It to Make It Go Away Is a Conviction

A Class C misdemeanor is not a parking ticket. Resolving one by paying the fine and costs leaves a criminal conviction on the record, and a fifty dollar maximum fine makes that a very cheap way to acquire something permanent. For someone flying home on Sunday it is an enormously tempting trade, and it is the single most common way these cases go wrong.

The consequences that follow are not proportionate to the fine. Background checks for employment and housing do not grade offenses by class. Professional licensing boards do not either. Whether a conviction can later be cleared from the record depends on facts this page cannot know, and our expungement page covers how that process works.

These cases are heard in General Sessions, which has its own rules about what you give up to be heard that morning. Our post on General Sessions versus Criminal Court explains the waiver that gets signed and the ten day appeal that follows. If a resisting or evading count came with the charge, the resisting arrest post covers that one.

Common Questions

Disorderly Conduct and Public Intoxication FAQ

Can I be arrested just for being drunk on Broadway?

Section 39-17-310 requires being under the influence in a public place to the degree that the offender may be endangered, other persons or property are endangered, or the offender unreasonably annoys people in the vicinity. Intoxication by itself does not meet the statute.

Is being loud disorderly conduct in Tennessee?

Subsection (b) of § 39-17-305 reaches unreasonable noise “that prevents others from carrying on lawful activities.” Preventing is the standard, not merely disturbing. Subsection (a) is separate and requires a public place, intent to cause public annoyance or alarm, and one of three listed acts.

Do I have to obey an order to disperse?

For disorderly conduct, the statute is narrow. It reaches refusal of an official order to disperse “issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency.” A separate statute, § 39-17-307(a)(2), makes disobeying a reasonable order to move a Class C misdemeanor in its own right.

What are the maximum penalties?

Both are Class C misdemeanors, which under § 40-35-111(e)(3) carry not greater than 30 days and a fine not to exceed $50. Obstructing a street or sidewalk under § 39-17-307(a)(1) is a Class A misdemeanor, up to 11 months 29 days and a fine not to exceed $2,500.

Is a hotel lobby a public place?

Yes. Section 39-11-106(a)(32) defines public place to include hallways, lobbies and other portions of hotels not constituting rooms designed for actual residence. The room is not a public place. The corridor outside it is.

I live out of state. Can I just pay the fine and go home?

Paying it resolves the case as a conviction rather than making it disappear. A Class C misdemeanor conviction appears on background checks the same as any other, and the low fine does not limit what follows from it.

Before You Resolve It

Check Which Section It Was Written Under

Austin Tomlinson defends disorderly conduct, public intoxication and related charges in Davidson County, and takes every case himself. The section number on the citation decides what the State would have to prove and what the exposure actually is, so that is the first thing worth reading on it.

September 18, 2026

Prescription Medication DUI in Tennessee

DUI Defense

Prescription Medication DUI in Tennessee

Taking it exactly as prescribed is not a defense. The statute says so directly. What the State still has to prove is a different question, and a harder one than most people expect.

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The Statute Forecloses the Argument Everyone Wants to Make

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

Tennessee Code Annotated § 55-10-411(e) says it plainly. The fact that a person charged under § 55-10-401 “is or has been entitled to use one (1) or more intoxicants, alcohol, marijuana, controlled substances, controlled substance analogues, drugs, or other substances that cause impairment shall not constitute a defense against any charge of violating this part.”

A valid prescription, taken at the prescribed dose, on a doctor’s instruction, is not an answer to this charge. That sentence surprises almost everybody who reads it, and it is the first thing to understand before anything else about these cases makes sense.

Section 55-10-401(1) is the prong these cases are charged under, and it never mentions legality. It reaches driving while under the influence of any “intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system, or combination thereof.” A drug is a drug. Where it came from is not an element.

Opioid painkillers, benzodiazepines, sleep aids, muscle relaxers, some antihistamines and some antidepressants all sit inside that language. So does a combination of a prescription taken correctly and one glass of wine, which is a more common fact pattern than any single medication on its own.

The Actual Burden

Presence of the Drug Is Not the Offense

Section 55-10-401(1) requires that the substance “impairs the driver’s ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of oneself that the driver would otherwise possess.” That is a statement about the person behind the wheel, not about what a lab found in a tube.

Read the clause carefully, because there are two halves to it and the second one is the part that gets argued. Clearness of mind and control of oneself that the driver would otherwise possess. The comparison is to that person’s own baseline, and a person who takes a medication daily on a standing prescription has a different baseline than someone who took it for the first time that afternoon.

This is why a prescription DUI is a different kind of case from an alcohol DUI even though it is the same statute and the same penalties. There is no number that settles it. There is an officer’s account of how somebody looked and spoke and walked, a toxicology report that says a substance was present, and an argument about whether the first is explained by the second.

How It Differs From an Alcohol Case

Most of the Statute’s Machinery Only Works on Alcohol

Tennessee built its DUI framework around a measurable alcohol number, and nearly every shortcut in it is written in terms of alcohol concentration. On a prescription drug case those provisions simply do not apply, in either direction.

Alcohol case vs prescription drug case
	Alcohol	Prescription drug
Per se limit	0.08%, § 55-10-401(2)	None
Presumption of impairment	At 0.08%, § 55-10-411	None
Seven-day enhanced minimum	At 0.15% alcohol concentration	Not triggered
Usual test	Breath or blood	Blood
What the State proves	A number, or impairment	Impairment only
Lawful use a defense	No, § 55-10-411(e)	No, § 55-10-411(e)

The last row is the trade. The State loses every shortcut it has, and the driver gets nothing back for holding a valid prescription. Both halves of that are true at once, and any page telling you only one of them is telling you half the statute.

The seven-day row is worth a moment. Under § 55-10-402 a first offense carries a minimum of forty-eight hours, rising to “a minimum of seven (7) consecutive days” on a first conviction with a blood alcohol concentration of 0.15% or more. That enhancement is tied to alcohol concentration by its own terms, so no quantity of a prescribed medication reaches it.

How the Evidence Gets Collected

There Is No Breath Test for a Prescription, So These Cases Run on Blood

Section 55-10-406 covers implied consent and testing “for the purpose of determining the alcohol or drug content, or both.” A blood test may be taken with a search warrant, or without consent where exigent circumstances to the warrant requirement exist. Consent, a warrant, or exigency. Those are the routes.

That matters more here than in an alcohol case for a simple reason. A breath machine cannot detect a benzodiazepine. If the State wants evidence a drug was in the body, it has to get inside the body, and the paperwork behind that draw becomes a live part of the file rather than a formality.

Refusal has its own consequences. Section 55-10-406 requires the officer to advise that refusal will result in suspension of the driver license by the court, and may, depending on prior criminal history, require driving only a vehicle with a functioning ignition interlock device. A refusal after arrest and advisement is charged separately from the DUI itself. Our implied consent page covers that side in full.

The Same Statute, the Same Consequences

A Prescription DUI Is Not a Lesser Charge

First offense DUI, Tenn. Code Ann.
Consequence	Provision
Not less than 48 consecutive hours nor more than 11 months 29 days	§ 55-10-402
Fined not less than $350 nor more than $1,500	§ 55-10-403
Prohibited from driving in this state for one year	§ 55-10-404

Identical to an alcohol first offense. The medication being lawful changes the evidence the State has to assemble, not what happens on a conviction.

A conviction also reaches things the statute does not list. Employment that requires driving, professional licensing, insurance, and in some jobs a security clearance. Those consequences land the same way whether the substance came from a bar or a pharmacy.

Where These Cases Are Actually Fought

The Argument Is About the Gap Between Presence and Impairment

Presence is not timing

A toxicology result establishes that a substance was in the blood. Many medications remain detectable well past the window in which they affect anyone. What the report proves and what the charge requires are not the same thing, and the distance between them is where the case lives.
The baseline comparison

The statute asks about clearness of mind and control the driver would otherwise possess. For someone on a long-standing prescription, the honest comparison is to how that person functions on their ordinary dose, not to a person who has never taken it.
Whether the observations have another explanation

Slow speech, unsteadiness, delayed responses and poor balance are the observations these cases are built from. They are also symptoms of the conditions that get these medications prescribed in the first place, and of fatigue, injury and anxiety at a roadside stop at night.
How the blood was obtained

Consent, warrant or exigency under § 55-10-406. Which one the State is relying on, and whether the record supports it, is a threshold question before the toxicology means anything at all.

None of that is a prediction about how a case comes out. It is a description of what is genuinely in dispute in a prescription medication DUI, and of why these files take more work than an alcohol case with a number on it.

Common Questions

Prescription Medication DUI FAQ

Can I get a DUI in Tennessee for medication my doctor prescribed?

Yes. Section 55-10-401(1) reaches any drug or substance affecting the central nervous system that impairs the driver, and § 55-10-411(e) provides that being entitled to use the substance is not a defense to the charge.

Is there a legal limit for prescription drugs like the 0.08 for alcohol?

No. The 0.08% prong at § 55-10-401(2) is alcohol concentration, and the presumption of impairment in § 55-10-411 is also tied to alcohol. For a prescription drug the State has to prove actual impairment under § 55-10-401(1) rather than rely on a number.

What does the State have to prove?

That the substance impaired the driver’s ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of oneself that the driver would otherwise possess. Presence of the drug alone does not meet that.

Can they take my blood without a warrant?

Section 55-10-406 provides for testing with a search warrant, or without the operator’s consent where exigent circumstances to the warrant requirement exist. Which route the State used, and whether the record supports it, is a threshold issue in a drug case because there is no breath test for a prescription medication.

Are the penalties lower than an alcohol DUI?

No. A first offense carries not less than 48 consecutive hours nor more than 11 months 29 days under § 55-10-402, a fine of $350 to $1,500 under § 55-10-403, and a one year driving prohibition under § 55-10-404. The seven-day enhanced minimum is tied to blood alcohol concentration and is not triggered by a prescribed medication.

What should I bring to a first meeting?

The citation or arrest paperwork, the prescription and dosing instructions, how long you have been taking it, and anything you have about the stop itself. The timeline of when the dose was taken relative to driving is often the first useful fact in the file.

If You Are Already Charged

Following Your Doctor’s Instructions Is Not the Answer, but It Is Not Irrelevant Either

Austin Tomlinson defends DUI cases involving prescription medications in Davidson County and across Middle Tennessee, and takes every case himself. The prescription does not end the charge, but the dose, the schedule and how long you have been on it all bear on the element the State actually has to prove.

September 18, 2026

Probable Cause and Preliminary Hearings in Tennessee

Early Stages of a Case

Probable Cause and Preliminary Hearings in Tennessee

Probable cause and preliminary hearings sit at the lowest evidentiary bar in the whole case, and most people misunderstand the hearing in both directions. Winning it does not end the case, and losing it does not mean much either.

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Probable Cause Is the Lowest Bar Anyone Has to Clear

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

A preliminary hearing asks one question: is there probable cause to believe an offense was committed and that this person committed it. Not whether the State can prove it, not whether the evidence is admissible, and not whether anyone is guilty. It is the same standard that supports an arrest, applied by a judge instead of an officer.

That is why probable cause and preliminary hearings disappoint people who expect a trial and get written off by people who treat them as a formality. The hearing decides very little and it reveals a great deal, and those two facts are the whole point of the morning.

The constitutional root is article I, section 7 of the Tennessee Constitution, which secures the people “from unreasonable searches and seizures” and condemns general warrants issued “without evidence of the fact committed.” The idea underneath the standard is old and simple. The State has to be able to point at something before it takes hold of a person.

What probable cause requires in practice is facts rather than a hunch, and considerably less than proof. Officer observation, a witness account, physical evidence, or some combination can carry it. A single witness the defense believes is lying can carry it, because credibility at this stage is not weighed the way a jury would weigh it.

The Common Misread

The Hearing Is Not Where Suppression Gets Decided

Whether a search was lawful, whether a statement was taken in violation of Miranda, whether evidence comes in at trial, these are admissibility questions. The preliminary hearing decides probable cause. They are different questions, asked at different stages, and a motion to suppress belongs in the trial court after indictment.

The page this one replaces listed illegal search and lack of Miranda warnings among the “common defenses during the preliminary hearing.” That sets an expectation the morning cannot meet. A person who walks in expecting his search to be thrown out walks out believing something went wrong, when nothing did.

The connection is real but indirect. What a witness says under oath at the hearing about how a stop began, what was said, and in what order, is exactly the material a suppression motion is later built from. The hearing does not decide the issue. It supplies the record the issue gets decided on.

Title 40, Chapter 10

What the Preliminary Examination Statutes Actually Give You

Chapter 10 of Title 40 is titled Preliminary Examination, and almost nothing written for the public about this hearing mentions it. It contains four provisions worth knowing before you walk in.

Tenn. Code Ann. title 40, chapter 10
Section	What it provides
§ 40-10-101	The magistrate shall immediately inform you of the offense charged and of your right to aid of counsel “in every stage of the proceedings”
§ 40-10-102	The magistrate shall allow a reasonable time to send for counsel and “if necessary, shall adjourn the examination for that purpose”
§ 40-10-103	The magistrate shall, “on demand of either party, put all witnesses under the rule” On demand
§ 40-10-104	The bail amount is endorsed on the commitment and signed, and the sheriff may discharge on sufficient bail

The third row is the one worth the reading. Putting witnesses under the rule means they are separated and cannot sit in the courtroom listening to each other testify. Section 40-10-103 makes it mandatory on demand rather than discretionary, which matters most in exactly the cases where two accounts have had time to converge.

The second row matters for anyone who arrives at a first appearance without a lawyer and is asked whether they want to go ahead. A reasonable time to send for counsel is not a courtesy, and the statute contemplates adjourning the examination to make it real.

Not an Absolute Right

You Can Usually Waive the Hearing, and the State Can Object

Section 40-10-114 provides that the preliminary hearing “may not be waived by the defendant if the state makes a timely objection, for good cause shown.” Waiver is the norm and it is often correct, but it is not something the defense decides alone.

Waiving makes sense when a plea is already being negotiated, when the hearing would hand the State a chance to lock in testimony it does not yet have, or when a witness who might not appear later will certainly appear that day. Holding it makes sense when the account is the case and nobody has heard it under oath yet.

That is a real strategic decision with reasons running both directions, and it is made early, usually within days of an arrest, often before anyone has seen much of the file. It is one of the strongest arguments for having a lawyer involved before the first court date rather than after it.

The Part That Surprises People

A Dismissal at the Preliminary Hearing Does Not End the Case

If the judge finds no probable cause, the charge is dismissed in General Sessions. The State may still take the same facts to the grand jury, and an indictment starts the case again in the trial court. Article I, section 14 of the Tennessee Constitution says “no person shall be put to answer any criminal charge but by presentment, indictment or impeachment,” and the grand jury is its own route to exactly that.

Section 40-13-101 defines an indictment as “an accusation in writing presented by the grand jury of the county charging a person with an indictable offense.” The grand jury hears the State. There is no defense case there, no cross-examination and no judge weighing both sides.

The same mechanism runs in the other direction and removes the hearing entirely. A grand jury can indict before any preliminary hearing is held, and when that happens the General Sessions case ends and the defendant answers in the trial court. Nothing has gone wrong. It is simply the most common reason a hearing a client was waiting for vanishes from the docket. Our post on General Sessions versus Criminal Court maps where each stage happens.

So the honest framing is this. The preliminary hearing is not a gate that closes. It is a look at the case, under oath, earlier than you will get one anywhere else, and the value is in what you learn and preserve rather than in the ruling.

Where the Real Value Sits

Testimony Given Once, Before Anyone Has Smoothed It Out

The account gets fixed in place

An officer or a complaining witness answers questions under oath, on the record, close to the events and before months of preparation. Whatever is said becomes the version that any later account has to be reconciled with.
Cross-examination, with nothing to lose

The judge is not deciding guilt, so the ordinary risk of a bad answer is much lower than at trial. Questions that would be too dangerous in front of a jury can be asked here, and the answer is useful either way.
The suppression motion gets its raw material

Sequence is everything in a stop. When the lights came on, when the question was asked, when consent was requested, when the dog arrived. That timeline is built from testimony, and this is the first chance to get it on a record.
You see the shape of the State’s case

Which witnesses they lead with, what they do not bother to call, and how much of the file they are willing to show. That is information the defense does not otherwise receive until well after indictment.

Common Questions

Probable Cause and Preliminary Hearings FAQ

What does a judge decide at a preliminary hearing in Tennessee?

Only whether there is probable cause to believe an offense was committed and that the defendant committed it. Guilt is not decided and the standard is far below what a conviction requires.

Can I get evidence suppressed at the preliminary hearing?

The hearing decides probable cause, not admissibility. A motion to suppress belongs in the trial court after indictment. What the hearing does supply is sworn testimony about how the stop or search unfolded, which is often what the later motion is built from.

What happens if the judge finds no probable cause?

The charge is dismissed in General Sessions, but the State may still present the same facts to a grand jury. Section 40-13-101 defines an indictment as an accusation in writing presented by the grand jury, and an indictment starts the case in the trial court.

Can I waive my preliminary hearing?

Usually, but not unilaterally. Section 40-10-114 provides that the hearing may not be waived by the defendant if the state makes a timely objection for good cause shown.

Can I keep the witnesses from hearing each other testify?

Yes, on request. Section 40-10-103 provides that the magistrate shall, on demand of either party, put all witnesses under the rule, meaning they are kept separate and excluded during other testimony.

Why did my preliminary hearing get cancelled?

Most often because the grand jury indicted before the hearing was held. The General Sessions case then ends and the case is answered in the trial court. It is a normal path rather than a sign anything went wrong.

Before the First Court Date

The Decisions Here Get Made Early and Are Hard to Revisit

Austin Tomlinson handles preliminary hearings in Davidson County and across Middle Tennessee, and takes every case himself. Whether to hold the hearing or waive it is decided within days of an arrest, which is why the call is worth making before that date rather than after it.

September 18, 2026

Tennessee Self-Defense Laws: What Stand Your Ground Requires

Justification Defenses

Tennessee Self-Defense Laws: What Stand Your Ground Requires

Tennessee self-defense laws put two conditions in front of the no-duty-to-retreat rule, before anyone gets to the question of what you reasonably believed. That is where these claims are lost.

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Stand Your Ground Has Two Conditions Before It Starts

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

Both halves of Tennessee Code Annotated § 39-11-611(b) open the same way. The no-duty-to-retreat rule belongs to “a person who is not engaged in conduct that would constitute a felony or Class A misdemeanor and is in a place where the person has a right to be.” Only then does the statute reach what you reasonably believed.

Almost every plain-English summary of Tennessee self-defense laws, including the version this page replaces, starts at the reasonable belief and never mentions the two conditions in front of it. They are not fine print. They are the most common reason a self-defense claim fails here.

Consider what the first condition reaches. Not a felony in progress, not a violent act, but any conduct that would constitute a felony or a Class A misdemeanor. A person carrying a firearm he is prohibited from possessing, or in the middle of a drug transaction, or committing a simple assault of his own, is outside the rule before the fight starts. He is not without any defense at all, but he has lost the version of it that lets him hold ground.

The second condition, being somewhere you have a right to be, does most of its work in trespass cases and in places somebody has already been asked to leave. Both conditions are decided on facts that exist before the first punch, which is why these cases are so often about the ten minutes before the incident rather than the incident.

A Separate and Narrower Test

There Is No Forcible Felony Rule in Tennessee

Section 39-11-611(b)(2) allows force intended or likely to cause death or serious bodily injury only where “(A) the person has a reasonable belief that there is an imminent danger of death, serious bodily injury, or grave sexual abuse; (B) the danger … is real, or honestly believed to be real at the time; and (C) the belief of danger is founded upon reasonable grounds.” All three, and nothing about the label on the crime being committed.

Some states permit deadly force to prevent a forcible felony as a category, so that burglary or robbery is by itself enough. Tennessee did not write that. The page this one replaces said it did, and that is the single most consequential error it contained.

Section 39-11-614(c) closes the same door from the other side. A person “is not justified in using deadly force to prevent or terminate the other’s trespass on real estate or unlawful interference with personal property.” Property alone is never the justification. Force to protect property is permitted under § 39-11-614(a) at the level reasonably believed immediately necessary, but deadly force needs a source elsewhere.

This does not mean a person is helpless against someone breaking into his house. It means the justification comes from the danger to people rather than from the burglary, and in a home invasion the presumption in the next section is usually what supplies it. The difference matters because the two work in different circumstances, and knowing which one you are relying on is the difference between a defense and an assumption.

The Castle Presumption

The Presumption Is Real, and It Has Four Exceptions

Under § 39-11-611(c), a person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury, where the force is used against someone unlawfully and forcibly entering. Subsection (d) then lists four situations where that presumption does not apply.

Tenn. Code Ann. § 39-11-611(d)
The presumption does not apply where	Why it matters
The person force is used against has a right to be there, or is a lawful resident	Removes the presumption between people who live together. Most missed
That person is attempting to remove a child or grandchild in their lawful custody	Custody disputes at a doorway
The person using force is engaged in a felony or Class A misdemeanor, or furthering unlawful activity	The same disqualifier as stand your ground
The person entering is a law enforcement officer performing official duties	Applies whether or not the entry was welcome

The first row is the one people are most surprised by. The castle presumption is generally assumed to be at its strongest inside the home, and it is removed in the setting where two people who both live there are the ones in the room.

Losing the presumption is not the same as losing the defense. It means the reasonable belief has to be proved rather than assumed, and everything in § 39-11-611(b) still applies. But the presumption is the part doing the heavy lifting in most home cases, and knowing when it falls away is the point of reading the statute rather than a summary of it.

The Statutory Bars

Three Situations Where Force Is Not Justified at All

You consented to the exact force used

Section 39-11-611(e)(1). An agreed fight is the ordinary example, and it is why “he wanted to go outside and settle it” is a bad fact rather than a neutral one.
You provoked the other person’s use of unlawful force

Section 39-11-611(e)(2), unless the encounter is abandoned. Provocation is not permanent, but walking it back has to be real and it has to be visible to whoever is later deciding what happened.
You were resisting a known law enforcement officer

Section 39-11-611(e)(3), unless the officer used or attempted greater force than necessary and you reasonably believed force was immediately necessary to protect against it. Both parts are required. Our post on resisting arrest works through that exception in detail, because it is the only route around the rule that an unlawful arrest is no defense.

Defense of someone else runs through § 39-11-612 and asks two questions. Would you have been justified under § 39-11-611 in the circumstances as you reasonably believed them to be, and did you reasonably believe the intervention was immediately necessary. You step into the shoes of the person you are protecting, as you reasonably understood the situation, which is why a mistaken but reasonable reading of a fight can still support the defense.

Who Has to Prove What

You Do Not Have to Prove You Acted in Self-Defense

Section 39-11-201(a)(3) requires the State to prove beyond a reasonable doubt “the negation of any defense to an offense defined in this title if admissible evidence is introduced supporting the defense.” Subsection (c) states that a person charged with an offense “has no burden to prove innocence.”

The practical shape of that is a two-step. Enough admissible evidence has to get in front of the jury to support the defense, which is a real threshold and not an automatic one. Once it is there, the State has to disprove self-defense beyond a reasonable doubt, the same standard it carries on every other element.

This is why what gets said at the scene matters so much. The evidence supporting the defense is usually the defendant’s own account, the physical scene, and whatever anyone recorded. An account given in the first hour, without a lawyer, to officers writing a report, tends to become the version everyone else argues about for the next year.

The Part Almost Nobody Covers

Justified Force Carries Immunity From Civil Liability

Section 39-11-622 provides that a person who uses force as permitted in §§ 39-11-611 through 39-11-614 “is justified in using such force and is immune from civil liability for the use of such force.” If a court dismisses a civil action on that basis, the statute says the court shall award the defendant attorney’s fees, court costs, compensation for loss of income and all expenses incurred in the defense.

The page this one replaces told readers that civil lawsuits may follow even after an acquittal, with no mention of the immunity at all. Tennessee wrote the opposite into the code, and it is not a small provision: a mandatory fee award changes whether a civil case gets filed in the first place.

It is not unlimited. The immunity does not reach force used against a law enforcement officer acting in the performance of official duties who identified themselves or was known to be an officer, and it does not reach property damage, death or injury to “an innocent bystander or other person against whom the force used was not justified.” A round that misses and hits someone else is outside it.

Common Questions

Tennessee Self-Defense Laws FAQ

Does Tennessee have a stand your ground law?

Yes, with two conditions. Section 39-11-611(b) gives the no-duty-to-retreat rule to a person who is not engaged in conduct that would constitute a felony or Class A misdemeanor and who is in a place where the person has a right to be. Both conditions come before the question of reasonable belief.

Can I use deadly force to stop a burglary or robbery in Tennessee?

Not because of the label on the offense. Section 39-11-611(b)(2) permits deadly force only on a reasonable belief of imminent danger of death, serious bodily injury or grave sexual abuse. Section 39-11-614(c) states a person is not justified in using deadly force to prevent or terminate a trespass or unlawful interference with personal property.

Does the castle doctrine apply against someone who lives with me?

The presumption in § 39-11-611(c) does not apply where the person against whom force is used has a right to be there or is a lawful resident, under subsection (d). The underlying self-defense law still applies, but the reasonable belief has to be proved rather than presumed.

Do I have to prove I acted in self-defense?

No. Under § 39-11-201(a)(3) the State must prove beyond a reasonable doubt the negation of the defense once admissible evidence supporting it is introduced, and subsection (c) provides that a person charged with an offense has no burden to prove innocence.

Can I be sued after a justified use of force in Tennessee?

Section 39-11-622 grants immunity from civil liability for force used as permitted in §§ 39-11-611 through 39-11-614, and requires an award of attorney’s fees, court costs, lost income and expenses if the court dismisses the civil action. It does not cover force against an identified law enforcement officer performing official duties, or injury to an innocent bystander.

Can I defend somebody else?

Section 39-11-612 allows it where, under the circumstances as you reasonably believe them to be, you would be justified under § 39-11-611 in protecting against the unlawful force threatening that person, and you reasonably believe the intervention is immediately necessary.

If It Has Already Happened

The Conditions Are Decided on Facts From Before the Incident

Austin Tomlinson defends assault and homicide cases where self-defense is the issue, in Davidson County and across Middle Tennessee, and takes every case himself. The two conditions in § 39-11-611(b) turn on where you were and what you were doing before anything started, so those are the first questions worth answering.

September 18, 2026

Tennessee Resisting Arrest Laws: What Counts as Resisting

Obstruction Offenses

Tennessee Resisting Arrest Laws: What Counts as Resisting

Tennessee resisting arrest laws require force. Most descriptions of them, including the one this page replaces, leave that out and describe a much broader offense than Tennessee actually wrote.

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The Statute Requires Force, and It Is Not Called Resisting Arrest

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

Tennessee Code Annotated § 39-16-602(a) makes it an offense to intentionally prevent or obstruct an officer from effecting a stop, frisk, halt, arrest or search “by using force against the law enforcement officer or another.” Those last words are an element of the offense. It is a Class B misdemeanor, or a Class A misdemeanor where a deadly weapon is used.

The section is titled “Resisting stop, frisk, halt, arrest or search.” Nowhere in it is the phrase everybody uses. That is not a technicality. Tennessee resisting arrest laws cover a narrower set of conduct than the name suggests, and the difference is where these cases are won.

Being uncooperative is not the offense. Arguing is not the offense. Going limp, refusing to answer, asking why you are being stopped, none of that is what § 39-16-602 describes. The State has to prove force was used against the officer or against someone else.

That said, this is a real element to contest rather than a loophole to hide behind, and it is worth being straight about why. Section 39-11-106 defines force as “compulsion by the use of physical power or violence” and adds that it “shall be broadly construed.” Pulling an arm away from an officer’s grip is the classic contested case, and it is genuinely contested. It is not automatically force and it is not automatically nothing.

The Confusion Worth Clearing Up

Resisting and Running Are Two Different Offenses

Fleeing is not resisting. Running from an officer is evading arrest under § 39-16-603, a separate statute. On foot it is a Class A misdemeanor, which is a higher grade than resisting. In a vehicle it is a felony.

Tennessee obstruction offenses, side by side
Conduct	Section	Class
Obstructing a stop or arrest by using force	§ 39-16-602(a)	Class B misdemeanor
Same, using a deadly weapon	§ 39-16-602(d)	Class A misdemeanor
Fleeing or hiding on foot from an attempted arrest	§ 39-16-603(a)	Class A misdemeanor
Fleeing in a vehicle after a signal to stop	§ 39-16-603(b)	Class E felony
Same, creating a risk of death or injury to others	§ 39-16-603(b)	Class D felony
Giving a false name to an officer	§ 39-16-611	Class C misdemeanor
Approaching within 25 feet after an order to stop	§ 39-16-612	Class B misdemeanor

Note the grades. The offense everyone worries about, resisting, is the lowest of them. Running is a full grade higher, and the vehicle version carries a mandatory minimum of thirty days, sixty if the flight created a risk to anyone else.

Evading on foot also has its own knowledge element. Section 39-16-603(a) reaches a person who flees or conceals themselves knowing the officer “is attempting to arrest the person” or who “has been arrested.” Walking away from an encounter that has not become an arrest attempt is a different situation from running from one that has.

The Reversal Nobody Explains

An Unlawful Arrest Is a Defense to One of These and Not the Other

Section 39-16-602(b) states that “except as provided in § 39-11-611, it is no defense to prosecution under this section that the stop, frisk, halt, arrest or search was unlawful.” Section 39-16-603 says the reverse for evading: “it is a defense to prosecution under this subsection that the attempted arrest was unlawful,” and it says it for both the on-foot and the vehicle version.

Read those together, because they describe the same night. The arrest was bad. If you ran, that is a defense to the charge you are facing. If you pushed back, it is not.

This is the single most commonly repeated error about Tennessee resisting arrest law, and the page this one replaces repeated it. “The arrest was unlawful” gets listed as a defense to resisting in article after article. The statute rules it out in terms. A person who believes otherwise has a reason to physically resist an arrest he thinks is wrong, and Tennessee has written the law specifically to remove that reason.

The Narrow Door

Excessive Force Is the Exception, and It Has Two Parts

The exception referenced in § 39-16-602(b) lives at § 39-11-611(e)(3). Force may not be used to resist an arrest, search, stop and frisk or roadblock halt known to be made by an officer, unless the officer “uses or attempts to use greater force than necessary” and the person “reasonably believes that the force is immediately necessary to protect against” it.

Both halves have to be there. An officer using more force than the situation called for is not by itself enough. The response also has to be immediately necessary and reasonably believed to be so, which means proportionate and in the moment rather than retaliatory or after the fact.

Where this argument actually gets made is on the recording. Body camera, dash camera, a bystander’s phone, the timing of when hands went where. These cases turn on a few seconds of footage far more often than they turn on testimony, which is a practical reason to preserve anything you have and to say nothing that commits you to a version of events before anybody has watched it.

Commonly Charged, Often Wrong

Things That Are Not Resisting Arrest

Not carrying identification

Section 39-16-611 makes it an offense to intentionally give a false or fictitious name to an officer who has lawfully detained or arrested you, a Class C misdemeanor. The same section says a person’s failure or inability to produce a physical form of identification or driver license “is not a violation.” Not having your wallet is not a crime and it is not resisting.
Staying silent

Declining to answer questions is a constitutional right rather than obstruction. It does not become force because an officer finds it unhelpful.
Arguing, filming or asking why

None of it is force under § 39-11-106. Filming does have one statutory limit worth knowing: under § 39-16-612 it is a Class B misdemeanor to intentionally approach within twenty-five feet of an officer after being ordered to stop approaching or to retreat, during a traffic stop, an active investigation or an immediate safety threat. The distance is the offense, not the camera.
Tensing up, or being difficult to handcuff

This is the genuinely contested ground rather than a clear answer. It is where the force element is argued, and where the difference between an officer’s narrative and the footage usually decides the case.

Why This Charge Appears At All

Resisting Rarely Arrives On Its Own

A Class B misdemeanor carries up to six months and a fine not to exceed five hundred dollars under § 40-35-111(e)(2). On its own that is at the lower end of what Tennessee prosecutes. It is rarely on its own.

It arrives attached to whatever the encounter started as, and it changes the character of the file. A simple possession case reads differently with a resisting count on it. So does a DUI. The count is also frequently the most negotiable thing in the file, which makes it worth understanding rather than absorbing.

If the underlying charge came with it, the pages on assault, drug charges and DUI cover the other half, and the court structure post explains where a misdemeanor like this is actually heard.

Common Questions

Tennessee Resisting Arrest Laws FAQ

Can I be charged with resisting arrest without touching the officer?

Section 39-16-602(a) requires that the obstruction be by using force against the officer or another person. Force is defined at § 39-11-106 as compulsion by the use of physical power or violence, and the statute says it is to be broadly construed. Non-compliance without force does not meet the element.

Is an unlawful arrest a defense to resisting arrest in Tennessee?

No. Section 39-16-602(b) says it is no defense that the stop, frisk, halt, arrest or search was unlawful. The only exception is § 39-11-611(e)(3), which requires both that the officer used or attempted greater force than necessary and that the person reasonably believed force was immediately necessary to protect against it.

Is running from the police the same charge?

No. Fleeing is evading arrest under § 39-16-603. On foot it is a Class A misdemeanor, a higher grade than resisting. In a vehicle it is a Class E felony with a thirty day minimum, or a Class D felony with a sixty day minimum if the flight created a risk of death or injury to others.

Do I have to show identification to an officer in Tennessee?

Section 39-16-611 makes intentionally giving a false or fictitious name to an officer who has lawfully detained or arrested you a Class C misdemeanor. The same section provides that failure or inability to produce a physical form of identification or driver license is not a violation.

What is the penalty for resisting arrest in Tennessee?

A Class B misdemeanor, which under § 40-35-111(e)(2) is not greater than six months and a fine not to exceed five hundred dollars. It becomes a Class A misdemeanor under § 39-16-602(d) where a deadly weapon is used.

Can I film the police during a stop?

Filming is not force and is not resisting. Distance is separately regulated. Under § 39-16-612 it is a Class B misdemeanor to intentionally approach within twenty-five feet of an officer after the officer has ordered you to stop approaching or to retreat during a traffic stop, an active investigation or an immediate safety threat.

If the Charge Is Already There

The Question Is What the Footage Shows, Not Whether You Cooperated

Austin Tomlinson defends resisting and evading charges in Davidson County and across Middle Tennessee, and takes every case himself. Body camera footage gets overwritten on a schedule, so the sooner a preservation request goes out, the more there is to work with.

September 18, 2026

General Sessions vs Criminal Court in Tennessee

Tennessee Court Structure

General Sessions vs Criminal Court in Tennessee

One of these courts cannot touch your case until you sign away the grand jury and the jury trial. Most explanations of the difference never mention it.

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General Sessions Is Not a Smaller Version of Criminal Court

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

Almost every criminal case in Tennessee starts in General Sessions Court. What that court can do with your case depends on something you decide, not on the charge. It cannot try a misdemeanor at all unless you first give up the grand jury and the jury trial, in writing. Criminal Court is where felonies go after a grand jury indicts, and where a jury is available without giving anything up.

The usual framing of General Sessions vs Criminal Court is that one handles small cases and the other handles big ones. That is roughly true about outcomes and completely wrong about how the two courts work. The line between them is a set of rights, and one of them gets waived by agreeing to be heard.

The Part Most Articles Skip

General Sessions Cannot Try You Until You Waive

Tennessee Code Annotated § 40-1-109 gives General Sessions jurisdiction to try a misdemeanor only where the person charged “enters a plea of guilty in writing or requests a trial upon the merits and expressly waives an indictment, presentment, grand jury investigation and jury trial.” The statute adds that “the waiver shall be in writing as provided in Rule 5 of the Tennessee Rules of Criminal Procedure.”

Read that again, because it inverts the usual description. General Sessions does not possess misdemeanor trial power and then extend you a choice. It has no such power until the waiver is signed. Without it, the case moves toward a grand jury like any other.

The reason sits in the state constitution. Article I, section 14 says “that no person shall be put to answer any criminal charge but by presentment, indictment or impeachment.” Article I, section 6 says “that the right of trial by jury shall remain inviolate.” Those two protections are what § 40-1-109 asks you to set aside so the case can be resolved that morning instead of months later.

That trade is often the right one. Resolving a misdemeanor quickly, at a sentence the judge has already indicated, beats waiting a year for the same result. But it is a trade, and it should be made deliberately rather than discovered afterward on a form someone slid across a table.

The Comparison

What Each Court Can Actually Do

Tennessee trial courts, criminal side
	General Sessions	Criminal Court
How your case arrives	Arrest warrant or citation	Grand jury indictment or presentment
Can it try a misdemeanor	Only on a written waiver, § 40-1-109	Yes
Jury available	No	Yes
Felony role	Preliminary hearing, then bind over	Trial and sentencing
Maximum sentence	11 months 29 days, § 40-35-111(e)	Up to life, § 40-35-111(b)
Discovery	Limited, and fast	Full, under the criminal rules
If you lose	Appeal for a new trial, 10 days	Appeal on the record to the Court of Criminal Appeals

The last row is the one people misread. An appeal from General Sessions is not a review of what the judge did. It is a fresh trial in a different court, which is why the deadline is ten days and not thirty.

What Is On the Table

The Sentencing Ranges That Set the Ceiling

Section 40-35-111 fixes the ranges. General Sessions is capped by the misdemeanor ceiling in subsection (e). Everything in subsection (b) belongs to Criminal Court.

Tenn. Code Ann. § 40-35-111
Class	Authorized sentence
Class C misdemeanor	Not greater than 30 days, fine not to exceed $50
Class B misdemeanor	Not greater than 6 months, fine not to exceed $500
Class A misdemeanor	Not greater than 11 months 29 days, fine not to exceed $2,500
Class E felony	Not less than 1 year nor more than 6 years
Class D felony	Not less than 2 years nor more than 12 years
Class C felony	Not less than 3 years nor more than 15 years
Class B felony	Not less than 8 years nor more than 30 years
Class A felony	Not less than 15 years nor more than 60 years

Two common charges sit closer to that line than people expect. Theft is a Class A misdemeanor where the property is “$1,000 or less” under § 39-14-105(a), so exactly one thousand dollars is still the misdemeanor. And under § 55-10-402 a first, second and third offense DUI are all misdemeanors. Not until a fourth conviction does DUI become a Class E felony, with a fifth graded Class D and a sixth or subsequent Class C.

The Felony Route

How a Case Travels From One Court to the Other

The preliminary hearing

A felony begins with a hearing in General Sessions on whether there is probable cause. It is not a trial and nobody is found guilty. The State puts on enough to move the case forward and the defense cross-examines. That cross-examination is often the only time a witness answers questions under oath before trial, which is why the hearing matters far more than its low legal standard suggests.
Waiving it is a decision, and the State gets a say

The hearing can be given up, but not unilaterally. Section 40-10-114 provides that “the preliminary hearing may not be waived by the defendant if the state makes a timely objection, for good cause shown.” Waiving is sometimes correct and sometimes throws away the only early look at the proof.
The grand jury

A finding of probable cause sends the case to the grand jury. Section 40-13-101 defines an indictment as “an accusation in writing presented by the grand jury of the county charging a person with an indictable offense.” The grand jury hears the State only. There is no defense case at this stage.
Criminal Court

On indictment the case is arraigned in Criminal Court, and the parts of a criminal case most people picture begin: full discovery, motions to suppress, plea negotiation with the sentence ranges above in view, and a jury trial if it goes that far.

A case can also skip the first two steps. The grand jury can indict directly, and when it does the General Sessions case simply ends and the defendant answers in Criminal Court. Nothing has gone wrong when that happens, but it does remove the preliminary hearing, and it is worth knowing why the hearing you were expecting disappeared from the docket.

Ten Days, and One Box

The Jury You Waived Comes Back Only If You Ask On the Way Out

A General Sessions conviction can be appealed within ten days under § 27-5-108, and the appeal is a brand new trial rather than a review. But the jury is not automatic. Section 27-3-131(b) provides that “demand for a jury trial shall be made at the time of filing an appeal under § 27-5-108 … If such demand is not made at the time of filing the appeal, the right to a trial by jury is waived.”

Sit with that sequence. You waived the jury to be heard in General Sessions. You lost. The appeal is the one moment the jury is available again, and § 27-3-131(a) allows the new trial “with or without a jury.” Say nothing when you file and the jury is gone a second time, this time permanently, and the new trial proceeds in front of a judge.

It is lost by omission, not by any decision anyone announces out loud. It is also the single most concrete reason to have a lawyer file the appeal rather than walking the paper to the clerk yourself, and the reason the ten-day deadline deserves more respect than it usually gets.

Middle Tennessee

It Is Not Called Criminal Court Everywhere

Tennessee does not use one name for the felony court. Some judicial districts have a Criminal Court, others give criminal jurisdiction to Circuit Court, and the difference is historical rather than substantive. The procedure above is the same either way.

Where a felony is heard, by county
County	District	The felony court
Davidson	20th	Criminal Court, multiple divisions
Sumner	18th	Criminal Court
Wilson	15th	Circuit Criminal Court
Williamson	21st	Circuit Court, criminal matters filed there

Rutherford, Cheatham and Smith counties follow the same pattern under their own district structures. If you are unsure which court holds your case, the number on your citation or bond paperwork and the clerk’s office will tell you in a minute.

This matters for a practical reason rather than a legal one. People miss court dates because they went to the right courthouse and the wrong floor, or because a notice said Circuit Court and they were looking for Criminal Court. A failure to appear is its own charge and it is entirely avoidable. Our areas served pages list the courthouse for each county we practice in.

Why the Distinction Is Worth Knowing

The Court You Are In Changes What Is Worth Doing

In General Sessions the clock is short and the record is thin. Cases are resolved in minutes, the evidence you get is limited, and the leverage usually comes from what the State has not assembled yet rather than from what you can disprove. The real question is often whether to resolve it now or to decline the waiver and let the case take the longer route.

In Criminal Court the file is complete, motions are available and a jury is on the table, which changes the arithmetic on both sides. It also means a different kind of exposure. The sentence ranges in the table above are the reason a felony indictment is not simply a harder version of the same problem.

Neither court is the good one. They ask different things of a defense, and the decisions that carry the most weight, whether to waive, whether to hold the preliminary hearing, whether to appeal and what to demand when you do, all get made early and mostly cannot be revisited.

Common Questions

General Sessions vs Criminal Court FAQ

Can I get a jury trial in General Sessions Court?

No. General Sessions has no jury. Under § 40-1-109 the court gains power to try a misdemeanor only when the defendant expressly waives indictment, presentment, grand jury investigation and jury trial in writing. If you want a jury, that is the waiver you decline.

Is General Sessions Court less serious than Criminal Court?

The sentence ceiling is lower, at 11 months 29 days under § 40-35-111(e), but a conviction there is a real conviction with the same record consequences. The case is also decided far faster and on far less information, which cuts both ways.

How long do I have to appeal a General Sessions conviction?

Ten days, under § 27-5-108. The appeal is a new trial rather than a review of the first one. Demand the jury at the time you file, because § 27-3-131(b) treats the right as waived if the demand is not made then.

What happens at a preliminary hearing?

A General Sessions judge decides whether there is probable cause to send a felony to the grand jury. Guilt is not decided. The defense can cross-examine the State’s witnesses, which is frequently the earliest and best look at the proof.

Can I skip the preliminary hearing?

Usually, but not always. Section 40-10-114 provides that the hearing may not be waived if the State makes a timely objection for good cause shown. Whether waiving helps depends on what the hearing would produce.

Is a third DUI handled in Criminal Court?

A third offense DUI is still a misdemeanor under § 55-10-402. A fourth conviction is a Class E felony, a fifth is Class D and a sixth or subsequent is Class C. The felony grades are what move the case to the felony court.

Before Your First Court Date

Know What You Are Being Asked to Give Up

Austin Tomlinson appears in General Sessions and Criminal Court across Davidson County and Middle Tennessee, and takes every case himself. Bring your citation or bond paperwork, because the court, the division and the date on it answer most of the first questions.

September 18, 2026

Gun Rights After a Conviction in Tennessee

Weapons Charges

Gun Rights After a Conviction in Tennessee

Gun rights after a conviction do not end the same way for everyone, and Tennessee rewrote the way rights come back in 2025. Most of what is written about this is describing the old process.

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Tennessee Grades This by What the Prior Conviction Was

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

There is no single “felon in possession” offense in Tennessee. Section 39-17-1307 sets three different grades, and which one applies turns entirely on what the earlier conviction was. The spread runs from a Class E felony to a Class B felony.

That is the first thing most articles on this subject get wrong. “A felony means you can never own a gun again” is a summary of the federal rule, not a description of what Tennessee charges, and the difference decides what someone is actually facing.

Tenn. Code Ann. § 39-17-1307
The prior conviction	Section	Class
Felony crime of violence, an attempt, or a felony involving a deadly weapon	§ 39-17-1307(b)(1)(A)	Class B felony
Felony drug offense	§ 39-17-1307(b)(1)(B)	Class C felony
Any other felony, handgun	§ 39-17-1307(c)(1)	Class E felony
Misdemeanor domestic violence conviction, or subject to a qualifying order of protection	§ 39-17-1307(f)	Class A misdemeanor

Note the last row. It does not require a felony at all. A misdemeanor domestic violence conviction, and in some circumstances simply being subject to an order of protection, is enough to make possession an offense.

Rewritten in 2025

Restoration Now Runs Through the Citizenship Rights Statute

Tennessee restructured Title 40, chapter 29 in 2025. The right to possess a firearm is now written directly into the definition of citizenship rights at § 40-29-101, which lists among those rights “(E) The right to possess a firearm.” The petition runs through § 40-29-103, filed in circuit court. Section 40-29-105 was repealed.

This is why anything written before 2025 is describing a process that no longer exists in that form. A petition has to list every state and federal felony conviction, address eligibility and carry proof behind it, with notice to the district attorney.

The firearm part is narrower than the rest of it, and this is the provision that decides most cases. A court cannot restore firearm rights unless full citizenship rights are being restored and the person is not independently prohibited under § 39-17-1307(b), (f)(1), (h)(1)(D), (i) or (j).

That list reaches well past felony convictions. Subsection (b) covers a felony that was a crime of violence, involved a deadly weapon, or was a drug felony. The others reach circumstances that do not require a felony conviction at all, which is exactly why people are surprised to find the door closed after a petition they expected to succeed.

The Dangerous Assumption

Expungement and Firearm Restoration Are Not the Same Thing

They are separate processes, under separate statutes, with separate tests, decided on separate records. Getting one does not hand you the other, and an assumption in the wrong direction here means possessing a firearm while still prohibited.

Expungement runs through § 40-32-101 and the sections around it, and asks whether the charge or conviction qualifies to be cleared from the record. Restoration of the right to possess a firearm runs through § 40-29-103 and asks the separate question set out above. A person can qualify for one and not the other.

The older version of this page said an expungement restores firearm rights completely. That is not a safe thing for anyone to act on, and it has been removed. If the goal is to carry lawfully again, the question to ask is not “can this be expunged,” it is “am I independently prohibited, and by which provision.” The expungement page covers the clearing-the-record side.

The Second Set of Rules

A Tennessee Order Does Not Settle the Federal Question

Federal law prohibits firearm possession by a person convicted of a crime punishable by more than one year, at 18 U.S.C. § 922(g)(1). That provision runs on its own rules, and a state restoration order does not automatically resolve it.

Tennessee’s own prohibition points at the federal one. The independent-prohibition test references § 922(g) as that statute existed on January 1, 2021, so the state question and the federal question are tied together without being the same question.

The practical consequence is that “my rights were restored” is an incomplete answer. The complete answer covers both, and anyone told only the state half has been told half of what they needed.

If the Charge Already Exists

Where These Cases Are Actually Contested

Which prior, exactly

The difference between a Class E and a Class B felony is the characterization of the earlier conviction. What the prior actually was, how it was pled and what the judgment says are all live questions rather than background facts.
Possession, not proximity

The State has to prove possession. A firearm in a shared vehicle or a shared home is an argument about knowledge and control, and it is an argument that can be met.
Whether a separate count attaches

A firearm alongside another felony can bring a § 39-17-1324 count with a mandatory minimum that runs consecutive. The gun and weapons charges page works through that separately.

Common Questions

Gun Rights After a Conviction FAQ

Does every felony ban me from owning a gun in Tennessee?

Every felony creates a prohibition, but Tennessee charges possession at different grades depending on the prior. A felony crime of violence or one involving a deadly weapon makes possession a Class B felony, a felony drug offense a Class C, and any other felony with a handgun a Class E.

If my record is expunged, can I own a firearm again?

Do not assume so. Expungement and restoration of the right to possess a firearm are separate processes under separate statutes. Ask specifically whether you remain independently prohibited before you possess anything.

How do I get my gun rights back in Tennessee?

By petition in circuit court under § 40-29-103, rewritten in 2025, with notice to the district attorney. The court cannot restore firearm rights unless full citizenship rights are being restored and you are not independently prohibited under § 39-17-1307(b), (f)(1), (h)(1)(D), (i) or (j).

I only have a misdemeanor. Am I clear?

Not necessarily. Under § 39-17-1307(f) a misdemeanor domestic violence conviction, or being subject to a qualifying order of protection, makes possession a Class A misdemeanor offense in its own right.

A Tennessee court restored my rights. Does federal law follow?

Not automatically. 18 U.S.C. § 922(g)(1) operates on its own terms, and a state order does not by itself resolve the federal prohibition. Both need answering before you possess a firearm.

Before You Act On It

Ask Which Provision Applies to You, Not Whether Felons Can Own Guns

Austin Tomlinson handles weapons charges and restoration questions in Davidson County and across Middle Tennessee, and takes every case himself. Bring the judgment from the earlier case if you have it, because that document usually answers the first question.

September 18, 2026

Simple Possession, Schedule VI and THC in Tennessee

Drug Charges

Simple Possession in Tennessee: Schedule VI and THC

Most of what gets written about simple possession in Tennessee repeats a half-ounce rule that is not in the possession statute at all. Here is what the law actually says, with the sections, and what changed in 2026.

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What Simple Possession Actually Is

Written and reviewed by Austin Tomlinson, TN BPR #039453 Last updated September 18, 2026

Simple possession or casual exchange is charged under Tenn. Code Ann. § 39-17-418. For a first offense it is a Class A misdemeanor, carrying up to 11 months and 29 days. It covers possessing a controlled substance for personal use, and it covers passing a small amount to someone else without profit.

The charge is not limited to marijuana. It applies across the schedules, which is why the same section that handles a gram of cannabis also handles a loose pill with no prescription. What changes with the substance is not the section, it is what the statute layers on top of it.

Section 39-17-418 carries its own enhancements. Possession of methamphetamine or of fentanyl and its analogues brings a minimum of 30 days confinement, served at 100%. And where a person has two or more prior convictions under this section involving Schedule I heroin, a further conviction moves to a Class E felony. Those are the exceptions. Everything else in the section starts as a Class A misdemeanor.

The Part Most Sites Get Wrong

The Half-Ounce Figure Is a Distribution Rule, Not a Possession Limit

The half-ounce number that appears in almost every article on this subject comes from § 39-17-418(b), which makes it an offense to distribute a small amount of marijuana not in excess of one-half ounce, 14.175 grams. It is a provision about handing something over. It is not a ceiling below which possession becomes legal, and it is not the line that decides whether possession is a misdemeanor.

This matters in a practical way. People arrive at a first appearance believing that because they had less than half an ounce the charge is automatically minor, or that because they had slightly more it is automatically a felony. Neither follows. Simple possession under subsection (c)(1) is a Class A misdemeanor without reference to weight. Weight starts to control further up, in the sale, delivery and manufacture offenses, where Tennessee grades by quantity and the felony classes and fines climb with it. Those tiers are set out on the drug charges page.

What weight really does at the misdemeanor level is evidentiary. A larger amount, along with packaging, scales, cash or messages, is what the State points to when it argues the charge should have been possession with intent rather than simple possession. That is an argument about inference, and it is an argument that can be met.

Definitions That Decide Cases

Schedule VI, and What Counts as Marijuana

Marijuana sits in Schedule VI, the schedule Tennessee created for it rather than placing it alongside Schedule I drugs. The definition that matters more in practice is in § 39-17-402, because it decides what the State has to prove the substance was.

Under § 39-17-402 marijuana means all parts of the cannabis plant, the seeds, the resin, and every compound, derivative, mixture or preparation of it, including concentrates and oils. That last phrase is the one that catches people. A cartridge or a jar of wax is not a separate, lesser thing under Tennessee law. It is marijuana by definition.

The same section carves things out. It excludes mature stalks and fiber, FDA-approved prescription medication, hemp as defined in § 43-27-101, and oil containing cannabidiol with less than nine tenths of one percent (0.9%) THC where the person holds proof that they or an immediate family member has a qualifying diagnosis. The statute lists intractable seizures or epilepsy along with Alzheimer’s disease, ALS, cancer, inflammatory bowel disease, multiple sclerosis, Parkinson’s disease, HIV or AIDS, sickle cell disease and quadriplegia.

That carve-out is narrow and it is conditional. It is not a medical cannabis program, and the proof requirement is part of the exclusion rather than a defense raised later.

Updated for 2026

The Hemp Line Moved, and It Moved Against THCa

Until recently the practical rule people relied on was simple: under 0.3% delta-9 THC by dry weight and the product was hemp rather than marijuana. That gap is what the THCa market was built in, and Tennessee has closed it.

Two things changed. Regulation of hemp-derived cannabinoid products moved from the Department of Agriculture to the Alcoholic Beverage Commission. And the rules now reach products at or above 0.3% dry weight measured to include THCa, rather than measuring delta-9 alone. Measured that way, a great deal of what was sold as hemp is not hemp. The effective date for that part was pushed back to July 1, 2026.

For anyone facing a charge the significance is narrow but real. Whether a substance was hemp or marijuana is a question about the law in force on the date of the alleged offense, not the law today. A product bought lawfully under the old measurement is not retroactively a crime, and a charge brought on the new measurement has to be proved on it. Where the substance sat near the line, the testing method is a live issue rather than a formality.

Frequently Misread

Federal Rescheduling Did Not Change Your Tennessee Charge

Marijuana was reclassified federally from Schedule I to Schedule III in April 2026. A Tennessee simple possession charge is brought under Tennessee law, in a Tennessee court, under § 39-17-418. The federal schedule is not the schedule that charge runs on.

Tennessee places marijuana in Schedule VI under its own code. Moving the federal classification does not move the state one, and it does not create a medical program here. Tennessee has no medical cannabis program beyond the narrow cannabidiol exclusion described above.

What Actually Follows

What a Conviction Does, and One Thing It Does Not

Simple possession, first offense
Question	Answer
Offense class	Class A misdemeanor, § 39-17-418(c)(1)
Maximum jail	11 months and 29 days
Court	General Sessions, unless it is bound over
Driver license	Not a listed ground § 55-50-502 does not provide for revocation on a drug conviction unconnected to driving
On your record	Yes, unless diverted or later expunged

The license point is worth stating plainly because the opposite is repeated constantly, including on the version of this page that stood here before. Tennessee’s suspension and revocation statute lists motor vehicle grounds. A first simple possession conviction with no driving element is not among them.

The consequences that are real tend to be the quiet ones. A drug conviction on a record is visible to employers running background checks, and it reaches professional licensing, some housing applications, and immigration consequences that run on their own track. For anyone holding a security clearance the reporting duty arrives long before the case ends, which is covered on the clearance and VA benefits page.

The Outcome Worth Aiming At

Diversion, and Getting It Off the Record

Unlike DUI, which is excluded by statute, most simple possession charges are eligible for judicial diversion. Completed successfully, diversion ends in dismissal rather than conviction, and the record can then be expunged.

Judicial diversion under § 40-35-313 turns on the offense and the record, not on the substance. It is available once. Someone previously granted judicial or pretrial diversion is out, which is the bar that catches people most often, and it is the reason a first charge is worth treating seriously rather than disposing of quickly.

Where a case ends in dismissal, diversion or acquittal, the path to clearing it runs through § 40-32-101 and the sections around it. That process, including what Tennessee reorganized in 2025, is set out on the expungement page.

Common Questions

Simple Possession in Tennessee FAQ

Is possession under half an ounce legal in Tennessee?

No. The half-ounce figure in § 39-17-418(b) describes a distribution offense, not a possession threshold. Possession of any amount for personal use is a Class A misdemeanor on a first offense.

Will I lose my driver license over a possession charge?

Not by operation of the license statute. Tenn. Code Ann. § 55-50-502 sets out grounds for suspension and revocation, and a drug conviction with no driving element is not among them. If the stop involved driving, that is a different question and worth asking about directly.

Is a vape cartridge treated differently from plant material?

Not by definition. Section 39-17-402 defines marijuana to include concentrates and oils. What changes with a concentrate is the weight-to-potency relationship, which can matter if the State argues the amount points to intent to sell.

I bought it legally at a store. Is that a defense?

It is a fact worth putting on the table early. Whether a product was hemp or marijuana depends on the measurement the law required on the date of the offense, and the standard for hemp-derived cannabinoid products changed in 2026. Keep the packaging, the receipt and any certificate of analysis.

Marijuana is Schedule III federally now. Does that help me?

Not on a state charge. Tennessee schedules marijuana under its own code at Schedule VI and charges it under § 39-17-418. The federal reclassification in April 2026 does not change either.

Can I get it off my record?

Often, yes. A dismissal, an acquittal or a successfully completed diversion can be expunged. A conviction is harder and depends on the offense and how much time has passed.

If You Are Charged

The First Court Date Is Not the Time to Work It Out

Austin Tomlinson defends drug charges in Davidson County and across Middle Tennessee, and handles every case himself. Tell him what you were charged with and what happened, and he will tell you what the realistic range of outcomes is, including the bad ones.

September 18, 2026

Category: Uncategorized

The Implied Consent Statute Covers Breath and Blood, Not These

Three Tests, Fifteen Clues, and a Decision Point of Two

The Tests Are Validated Only When They Are Given Correctly

There Is No Field Sobriety Score in the DUI Statute

What Else Produces the Same Clues

The surface and the conditions

Physical and medical baseline

Footwear and what the driver was wearing

The stop itself

Challenging Field Sobriety Tests FAQ

Do I have to take field sobriety tests in Tennessee?

Is a urine test part of implied consent?

How many clues does it take to fail?

What is the strongest way to challenge these tests?

Can I be convicted on field sobriety tests alone?

Does a medical condition matter?

Get the Footage Before Anything Else

Both Charges Require an Element People Do Not Know About

Disorderly Conduct Has Three Requirements, Not One

Fighting, or violent or threatening behavior

Refusing an order to disperse, in narrow circumstances

Creating a hazardous or physically offensive condition

Being Drunk in Public Is Not Public Intoxication

Public Place Reaches Further Than the Street

Blocking the Sidewalk Is a More Serious Charge Than Either of These

Paying It to Make It Go Away Is a Conviction

Disorderly Conduct and Public Intoxication FAQ

Can I be arrested just for being drunk on Broadway?

Is being loud disorderly conduct in Tennessee?

Do I have to obey an order to disperse?

What are the maximum penalties?

Is a hotel lobby a public place?

I live out of state. Can I just pay the fine and go home?

Check Which Section It Was Written Under

The Statute Forecloses the Argument Everyone Wants to Make

Presence of the Drug Is Not the Offense

Most of the Statute’s Machinery Only Works on Alcohol

There Is No Breath Test for a Prescription, So These Cases Run on Blood

A Prescription DUI Is Not a Lesser Charge

The Argument Is About the Gap Between Presence and Impairment

Presence is not timing

The baseline comparison

Whether the observations have another explanation

How the blood was obtained

Prescription Medication DUI FAQ

Can I get a DUI in Tennessee for medication my doctor prescribed?

Is there a legal limit for prescription drugs like the 0.08 for alcohol?

What does the State have to prove?

Can they take my blood without a warrant?

Are the penalties lower than an alcohol DUI?

What should I bring to a first meeting?

Following Your Doctor’s Instructions Is Not the Answer, but It Is Not Irrelevant Either

Probable Cause Is the Lowest Bar Anyone Has to Clear

The Hearing Is Not Where Suppression Gets Decided

What the Preliminary Examination Statutes Actually Give You

You Can Usually Waive the Hearing, and the State Can Object

A Dismissal at the Preliminary Hearing Does Not End the Case

Testimony Given Once, Before Anyone Has Smoothed It Out

The account gets fixed in place

Cross-examination, with nothing to lose

The suppression motion gets its raw material

You see the shape of the State’s case

Probable Cause and Preliminary Hearings FAQ

What does a judge decide at a preliminary hearing in Tennessee?

Can I get evidence suppressed at the preliminary hearing?

What happens if the judge finds no probable cause?

Can I waive my preliminary hearing?

Can I keep the witnesses from hearing each other testify?

Why did my preliminary hearing get cancelled?

The Decisions Here Get Made Early and Are Hard to Revisit

Stand Your Ground Has Two Conditions Before It Starts

There Is No Forcible Felony Rule in Tennessee

The Presumption Is Real, and It Has Four Exceptions

Three Situations Where Force Is Not Justified at All

You consented to the exact force used

You provoked the other person’s use of unlawful force

You were resisting a known law enforcement officer

You Do Not Have to Prove You Acted in Self-Defense

Justified Force Carries Immunity From Civil Liability