Section 1340-02-02-.18 - COMMON EVIDENTIARY PROBLEMS AND PRECEDENT(1) Privileges. All privileges recognized by constitution, statute, common law, or by these or other applicable rules, apply to contested case proceedings under the Act. (a) Fifth Amendment. In accordance with state and Federal law: 1. A person who asserts the Fifth Amendment right against self-incrimination in response to any discovery or at a hearing shall personally assert that right.2. If a claimant invokes the Fifth Amendment, then the inference is that the response called for is adverse to the claimant's case. This inference shall be taken by an administrative judge and shall be used to support the department's burden of proof in accordance with applicable law.(b) Informant's Privilege. The name of a confidential informant shall not be revealed, provided, however, that in the event the name of a confidential informant is ordered revealed, the department may, in its discretion, either dismiss its case or appeal such order. If an appeal is taken, the case shall be stayed until such appeal is concluded.(2) The Rule. In all contested cases, the testimony of witnesses shall be taken in open hearings. Under the rule, witnesses may be excluded prior to their testimony, except that a representative of the seizing agency or business entity may sit with counsel as provided in Rule 1340-02-02-.16(1)(f).(3) Admissibility. The standard for admissibility of evidence is set forth at T.C.A. § 4-5-313. These proceedings are not governed exclusively by the Tennessee Rules of Evidence.(4) Toxicology. Any controlled substance, controlled substance analogue, counterfeit, intoxicant, marijuana, narcotic drug producing stimulating effects on the central nervous system, legend drug, any scheduled drug, prescription drug or any other substance set forth in T.C.A. § 39-17-401, et seq. may be identified for the purpose of the contested case by the testimony of a qualified representative of a seizing agency, statements of the claimant or claimant's co-conspirator(s), field test, breath alcohol content (BAC) test, toxicology report or testimony of a toxicologist. (a) If the claimant objects to the introduction of a toxicologist report without the testimony of the toxicologist, the claimant may request that a toxicologist testify at the hearing.(b) The department shall be granted a continuance, in the event of such request, to subpoena the toxicologist, and the hearing shall be reset to allow introduction of the toxicologist's testimony and report.(c) Failure to request a toxicologist or keeper of the records within ten (10) days of the date of the hearing constitutes a waiver.(5) Statements against interest of the claimant by persons in possession of seized property are relevant and may be admitted into evidence pursuant to T.C.A. § 4-5-313.(6) Affidavits shall be filed pursuant to T.C.A. § 4-5-313.(7) A final order by the Commissioner on an issue that has not been reversed, remanded, or significantly modified by a court, or that has been affirmed by a court, establishes legal precedent that administrative judges shall follow in cases under the Act.(8) A Certified Driving Record shall be admissible in these hearings without requiring the Legal Division to produce the keeper of the records. (a) If the claimant objects to the introduction of a Certified Driving Record without the testimony of the keeper of the records, the claimant may request that the keeper of the records testify at the hearing.(b) The department shall be granted a continuance, in the event of such request, to subpoena the keeper of the records and the hearing shall be reset to allow introduction of the testimony of the keeper of the records.(c) Failure to request the appearance of the keeper of the records within ten (10) days of the hearing constitutes a waiver.(9) Any Field Test for alcohol and controlled substances and breath alcohol tests shall be admissible in these hearings to meet the preponderance of the evidence without requiring the State to produce the person who administered the Field Test. (a) If the claimant objects to the introduction of a Field Test without the testimony of those who administered the tests, the claimant may request that those who administered the tests testify at the hearing.(b) The department shall be granted a continuance, in the event of such request, to subpoena those who administered the tests, and the hearing shall be reset to allow introduction of the testimony of those who administered the tests.(c) Failure to request the appearance of those who administered the tests within ten (10) days of the date of the hearing constitutes a waiver.(10) Arrest records shall be admissible in these hearings.Tenn. Comp. R. & Regs. 1340-02-02-.18
Original rule filed December 5, 1994; effective February 18, 1995. Amendment filed October 31, 1996; effective February 28, 1997. Amendment filed December 10, 2014; effective 3/10/2015.Authority: T.C.A §§ 4-3-2009, 4-5-219, 4-5-312, 4-5-313, 40-33-201, et seq., as amended, and 53-11-201, et seq.