Appeals court: Fee to TBI for DUI convictions unconstitutional

A law that gives the Tennessee Bureau of Investigation $250 for each DUI conviction obtained using a blood or breath test is unconstitutional, an appeals court ruled this week, in a decision that could have a widespread impact on drunk driving cases across the state.

The decision from the Court of Criminal Appeals at Knoxville involved the DUI case of a woman who argued her blood test should be suppressed because the fee system violated her right to a fair trial and gave the TBI a financial motivation to get convictions. Her case, from Chattanooga, was consolidated with more than 20 similar cases of defendants who gave blood or breath samples to authorities.

The section of the Tennessee Code requires the $250 fee to be deposited into the TBI’s toxicology unit intoxicant testing fund. The fee is paid as part of a defendant's court costs if there is a conviction, for use by the TBI for agency operational costs. The fee isn't charged when a case is dismissed or a not guilty verdict is returned.

"While we acknowledge that TBI forensic scientists could lose their jobs if they falsify test results and these falsifications are discovered, we also recognize that forensic scientists would most certainly lose their jobs if funding for their positions disappears, a result of which these forensic scientists are no doubt well aware," the appeals court ruled. "Because the fee system at issue in this case calls into question the trustworthiness of the TBI forensic scientists’ test results, it violates due process."

The decision could be appealed. The Tennessee Attorney General's Office is reviewing the decision, spokesman Harlow Sumerford said Wednesday.

In Criminal Court in Memphis, DUI cases were being rescheduled Wednesday while lawyers formulated motions based on the ruling.

"It remains to be seen, but the impact could affect most of the DUI cases in the state," said defense attorney Mike Working.

Attorney Joe McClusky, who was filing motions on every case he had involving a blood draw or breath test, said it appeared from the ruling that the blood and breath tests would be suppressible in court.

"People with questions about their cases or past convictions should contact an attorney as soon as possible," he said.

The ruling would not impact other evidence in DUI cases such as observations of a responding officer, field sobriety tests, body cameras, car cameras or the behavior and statements of the suspect.

"Obviously in some cases this may be an issue, but it's definitely not fatal to all DUI prosecutions," prosecutor Sam Winnig, of Shelby County's DUI Task Force Prosecution Unit, said in court.

In Knoxville, DUI defense specialist Steve Oberman called the ruling a "very big deal."

Meanwhile, the public defender's office was assessing the ruling and preparing to move to have all blood tests in pending cases thrown out in court.

The state legislature introduced a $100 fee for blood and breath tests in 2005, and in 2010 it was raised to $250 following a proposal from the TBI. There was a total surplus from the fund from 2009 to 2012 of about $1.6 million, according to information in the court's ruling.

In the court record, TBI Director Mark Gwyn said the funds were used for equipment and training at the TBI and that back in 2008, "We were faced with some pretty deep cuts, cuts that would have at least caused us to do one of two things: (W)e would’ve had to shut down some disciplines with our crime laboratory, or we would’ve had to start charging local law enforcement for testing."

Gwyn said those options were not good, so the TBI wanted an increase on toxicology and blood alcohol testing fees.

"There’s been plenty of trial and defense attorneys that have taken our toxicology and our blood alcohol exams, outsourced them to private laboratories," Gwyn told the legislature. "Unfortunately, we had one incident in the Chattanooga area where a young forensic scientist (Kyle Bayer) made a mistake. He paid for that mistake ... We’re an open book. We’re as transparent as it can be, and we welcome anybody to come in and outsource any type of testing that they would like to see."

The state argued that any potential bias by TBI scientists can be remedied by independent testing, questioning of the scientist at trial or an instruction to the jury about the credibility of the scientists, but the appeals court noted that most DUI cases end in guilty pleas, not with trials, and that "independent testing is not an adequate safeguard because it impermissibly shifts the burden of proof from the State to the defense. Because the State has the duty to pursue truth and justice, it has the obligation to provide an accurate, unbiased BAC result, not a result that is deemed correct until disproved by the defendant."

"(B)ecause so few blood or breath samples are ever independently tested, TBI forensic scientists typically provide the only proof regarding a defendant’s blood alcohol content," the appeals court found. "Indigent defendants charged with DUI are particularly affected by this reality because they cannot afford to independently test their blood or breath sample, much less hire an expensive expert to challenge the BAC result at trial, and are unlikely to be given state funds to cover these expenses in a misdemeanor prosecution."

Full decision:

http://www.tncourts.gov/sites/default/files/rosemary_decosimo_opinion.pdf