On February 6, 2018, the Tennessee Court of Criminal Appeals issued a landmark decision for DUI cases that involve blood and breath tests throughout the State of Tennessee. The Court held that the collection of a $250.00 fee in DUI cases where a breath or blood test is taken and a conviction is obtained, is unconstitutional. The Court found, “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,” and held that the trial court’s failure to suppress blood test results on these grounds was in error. In other words, according to this decision, all breath tests and blood tests administered under this statute are inadmissible in evidence.
Tenn. Code Ann. Sec 55-10-413(f) mandates a $250.00 BADT fee to be paid by every defendant who submits to a blood or breath test and is ultimately convicted of DUI. The funds are to be deposited into the Tennessee Bureau of Investigation’s (TBI) toxicology unit and used for the maintenance of the program. Any surplus in funds is to be used for the employment of personnel, equipment and supplies, education and training of employees or other purposes to allow the bureau to operate efficiently.
In State v. Decosimo, No. E2017-00696-CCA-R3CD (Tenn. Court App. February 6, 2018), the Defendant filed a motion to suppress the results of her blood test based on this statute. She argued that the fee is unconstitutional because it creates a “contingent-fee-dependent system” that gives the TBI and its forensic scientists a financial incentive to ensure convictions. The State argued that the TBI forensics scientists are experts and are not required to be neutral and that their connection to the fees is too remote to constitute a due process violation because they are paid a salary. In its 28 page opinion, the court noted, that in 2016, the BADT fees reached over $3,000,000.00, and over the life of the BADT fee, collections have totaled over $22,000,000.00. The Court further noted, that fee systems have been historically condemned because Judges should not have a direct or pecuniary interest in the litigation before them and that fines and fees should not be used to generate revenue for a court or agency, but rather should be put in a state general fund.
In DUI cases the BAC test result is the most significant piece of evidence against a defendant, and are admitted into evidence as long as the tests are performed in compliance with TBI’s own standards and procedures. While Defendants have a right to have their blood retested, there are significant costs involved with that process including hiring an attorney to have an order signed to release the blood and having a private expert interpret the results. The Court addressed this issue stating:
“We agree with Decosimo that as a practical matter, the blood samples collected from defendants travel first to the TBI forensic scientists before they are eventually released at a time determined by the TBI, to the defense for independent testing, assuming that a court order is obtained before the samples are destroyed. We also agree that in most cases, the TBI’s official alcohol report will induce a defendant to enter a guilty plea unless BAC result appears scientifically impossible or is completely at odds with the defendant’s claim regarding the amount of alcohol consumed. Not surprisingly, because 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. 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 results at trial, and are unlikely to be given state funds to cover these expenses in a misdemeanor prosecution.”
Id at p. 21.
In making its findings, the Court further held, “…there is no question that the TBI, an agency of the State, has a direct pecuniary interest in securing convictions. The TBI forensic scientists also have a financial interest in securing convictions because the collection of the BADT fees affects their continued employment and salary, which give them an incentive to find that the defendant’s blood alcohol content is .08% or higher.” Id. at p. 25. The court rejected the State’s argument that TBI forensic scientists do not have a duty to remain neutral, stating, “The requirement of a neutral and objective forensic scientists fits well with the State’s duty to pursue truth and justice in criminal cases.” Id.
The Court noted the upward trend in revenue generated from this fund each year and the fact that could only serve to heighten the potential for bias among TBI scientists. In its final remarks, the Court stated, “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 disproven by the Defendant.”
How will this affect pending DUI’s across the State? That has yet to be determined. The appeal time has not run on the case, so the decision is not yet final. However, it is currently persuasive authority and could become binding authority if the State does not appeal. The attorneys at Best And Brock, are of the opinion that this affects all breath or blood test cases pending where a breath test or blood test was taken unless and until the statute changes. We intend to file suppression motions for breath or blood tests in all pending cases. We have been asked by past clients if this will affect old cases where convictions have already been entered. We do not believe there is any recourse for anyone whose case is past the appeal period at this time.
This case is a step in the right direction in keeping close checks and balance on an area of the law that has become very “defendant unfriendly”. Court costs in DUI cases, on a first offense with no priors usually total between $1,000.00 – $1,100.00 and that does not include DUI School fees, interlock fees, and attorney’s fees. With mandatory jail time at issue not only is a defendant’s record at stake but his or her very liberty is at stake every time a DUI arrest is made. For these reasons, it is imperative that good defense lawyers continue to educate themselves and those that work in the system about this are of the law and continue to fight hard for those accused to ensure essential fairness and balance in the system. Without that, justice cannot prevail.