This case was brought before the appellate court to answer a certified question whether TCA § 55-10-413(f), which provides the TBI with a $250 fee for each BADT/BAT test used in every DUI/listed offense conviction, is unconstitutional in violation of due process and right to a fair trial under the Fifth, Sixth and Fourteenth Amendments and under article I, sections 8 and 9 of the Tennessee Constitution. This question is based on the fact that the $250 fee creates a “contingent-fee-dependent system” placing a financial incentive to ensure convictions and is therefore susceptible to bias because the tests play a determinative role in the prosecution and/or charge. The Court examined if the statute created pressure on TBI forensic scientists and expert witnesses to the extent that admission of their evidence would deprive defendants of due process or a fair trial. The court concluded that TCA § 55-10-413(f) violates due process principles and that the trial court effed in failing to grant the motion to suppress.
Relevant provisions from TCA § 55-10-413(f) are as follows: (see note 2 for full expert from case)
(a)(1)… a blood alcohol or drug concentration test (BADT) fee in the amount of two hundred and fifty dollars ($250) shall be assessed upon a conviction…for each offender who has taken a breath alcohol test on an evidential breath testing unit provided…(b)(1) The fee…shall be collected by the clerk… and forwarded to the state treasurer on a monthly basis for deposit in the Tennessee Bureau of Investigation (TBI) toxicology unit intoxicant testing fund…and designated for exclusive use by the TBI…(3) Moneys in the…fund…shall be used to fund a forensic scientist position in each of the three (3) bureau crime laboratories, to employ forensic scientists to fill these positions, and to purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the bureau to operate in a more efficient and expeditious manner. To the extent that additional funds are available, these funds shall be used to employ personnel, purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose… T.C.A. § 55–10–419 (2012) (emphases added).
The legislature first introduced a $100 fee for blood and breath test in 2005. See T.C.A. § 55–10–419 (2005) (identifying the fee as a blood alcohol concentration test (BAT) fee); 2006 Tenn. Pub. Acts, ch. 998, § 2 (identifying the fee as a blood alcohol or drug concentration test (BADT) fee rather than a blood alcohol concentration test (BAT) fee). In 2010, the legislature, based on a proposal and arguably urging from the TBI, raised the BADT fee to $250. See T.C.A. § 55–10–419 (2010). In 2012 the law was changed to make blood tests mandatory if an impaired person killed or injured another person causing a “huge increase in blood testing” (Levitt). Judges and prosecutors rely heavily on the accuracy of TBI’s test results and those results generally influence not only a defendants plans to fight a case or enter a guilty plea (85% plea rather than contest the results) but also the ultimate verdict.
Facts stipulated for this cases were as follows: each Defendant had filed a motion to dismiss blood testing evidence sent to the TBI Forensic Science Division; each defendant was subject to BADT/BAT fees; TBI investigators are regularly called to court as witnesses; and by statute the BADT/BAT fees are collected by the clerk and paid directly to the TBI for agency operational costs.
Testimony from TBI Director Mark Gwyn’s Feb. 11, 2014 Senate Judiciary Committee meeting was submitted into evidence as well as the financial report form the Blood Alcohol or Drug Concentration Test (BADT) fund where the $250 is deposited. (see note 1). During the testimony the Director stated that “they were facing budget cuts that would result in them losing staff or have to charge local law enforcement for testing so to avoid this the legislature increased the fee.” He acknowledged that between 2009 and 2012 the fund netted a surplus of approximately $1,600,000 with no indication as to the use of the surplus. The fees went directly to the TBI as an exception to the general rule of requiring distribution to the general fund prior to entity distribution.
THE FEE SYSTEM INCENTIVE
Fee systems have historically been condemned by the courts and “fines and fees should not be used to generate revenue for a government agency” with the general rule being that “officers acting in a judicial or quasi-judicial capacity are disqualified by their interests in the controversy to be decided.” Tumey v. Ohio, 273 U.S. 510, 522 (1927). The court acknowledged that due to the dispositive nature of the BAC test results in criminal prosecutions there was a close question as to the TBI forensic scientist’s role with respect to adjudicatory functions. Citing Marshall v Jerrico the Court stated Tumey-Ward test was designed for judicial or quasi-judicial functions and could not be applied to prosecutorial actions. The court stated:
“in the vast majority of prosecutions for DUI, vehicular assault, vehicular homicide ect. the BAC test results provided by t TBI forensic scientists is the most significant piece of evidence against the defendant. The results determine whether the defendant is found guilt of DUI per se under Code 55-10-401(2) or is subject to enhanced jail time pursuant to Code 55-10-402(a)(1)(B), that it affects the defendants decision to pursue a trial or enter a guilty plea, and it provides persuasive evidence to a judge or jury regarding whether a defendant was impaired… the DUI per se law…removes the State’s burden of proving that a defendant was driving while impaired and creates a strict liability offense that, in the overwhelming majority of cases, is based solely on the finding of the TBI forensic scientist regarding the defendant’s BAC. See T.C.A. § 55–10–401(2)…the TBI’s BAC results are “prima facie admissible into evidence in any judicial or quasi-judicial proceeding” so long as the tests are performed in compliance with the standards and procedures established by the TBI. See id. § 38–6–103(g).”
The court examined the application of the Tumey-Ward test on the case, the court ultimately stated they were unable to conclude the TBI’s forensic scientists performed adjudicatory functions yet acknowledged the important role the evidence plays at trial.
ABA rule Section 1.53 states the purpose of fines imposed through judicial proceedings is to enforce the law, not to provide financial support for the courts or other government agencies, hence why all fines are suppose to go directly to the state general fund first. The Court weighed the fact that the TBI receives a fee for each conviction with BAC/BAT test but didn’t receive a fee if charges were dismissed, reduced or for an acquittal with the money going directly to the TBI for TBI exclusive use. Concluding “there is no question as to the direct pecuniary interest in securing convictions”, the court also found that the TBI forensic scientists have a specific financial interest in securing convictions because the fees are used for their employment salary, rising to an incentive level that would impact the scientists ability to be neutral and objective. Importantly, testimony was introduced with regard to a former TBI Agent Kyler Bayer, who was found to have switched a defendant’s BAT samples which resulted in a higher reported BAC level of .24% when the actual BAC for said defendant was .01%. There wasn’t a direct explanation offered for Bayers actions other than the switch was an inadvertent and isolated incident. The TBI retested all of the samples done by Bayer, the majority of which showed the same or slightly higher than Bayer’s results but 43 out of about 250 samples on retesting showed a slightly lower BAC than Bayer’s results. The court did not directly relate the actions of Bayer to the potential complications that could arise from scientists failing to be neutral in the testing. The court did state that a direct pecuniary interest existed between the BADT/BAT fees and the operational expenses of the TBI. That while there is no direct contingent fee paid to the scientists, the BADT feed provide substantial funding to employ them. The court ultimately concluded that the TBI, and specifically the forensic science division, is dependent on the BADT fees.
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. 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 court further stated that TBI forensic scientists, while they are employees of the state, they must serve as objective, independent experts in order to protect the integrity of the criminal justice system as they engage in the objective testing of blood samples to determine the defendant’s BAC therefore they must remain neutral and unbias. The court fails to address if the TBI forensic scientists would be able to maintain such an unbias neutral position with the current command structure and neglected to offer any alternatives such as removing the TBI forensic scientist unit into an independent entity.
The state attempted and failed to offer counters to any possible bias of the forensic scientists through independent testing of samples, cross examination at trial or a jury instruction. The court held these procedural safeguards insufficient to remedy the due process violations because independent testing would shift the burden to the defense and because so many DUI cases result in a guilty plea neither cross examination nor a jury instruction would be sufficient.
Importantly, it was stated that:
“Some variation should be expected between any two scientific measurements. When comparing retested data one must consider that ethyl alcohol is a volatile compound and many factors such as sample age, volume of sample available for retesting, sample condition, and the number of times the blood tube has been opened may influence the results. Additionally… TBI result supplied is the lower of two analyses and has been truncated from four decimal points supplied by the instrument down to two for reporting purposes.”
The court does not directly address the potential implications of factors contributing to results obtained or the fact that ethyl alcohol is referred to as a “volatile compound”. They acknowledged that the blood samples that are collected from the defendants travel first to the TBI for forensic testing and at a time determined by the TBI are eventually released to defense for independent testing, if they aren’t destroyed first. Few samples are ever independently tested or challenged, therefore TBI forensic scientists typically provide the only proof of defendant’s blood alcohol content. Based on what was admitted into testimony in regards to factors that impact testing, the future of BAC testing requirements and documentation should be updated to include said factors.
THE FUTURE NOT ADDRESSED
The Court neglected to address the fact that the TBI has been operating on the BADT/BAT funded system since 2010. Future litigation will determine if this due process violation qualifies as a “Watershed Rule.”
- In 2009, the TBI had revenues from the fund of approximately $999,000 and expenses of $750,000; in 2010, revenues of around $1,011,000 and expenses of $690,000; in 2011, revenues of approximately $1,500,000 and expenses of $1,400,000; and in 2012, around $2,500,000 and expenses of $1,500,000, which accounted for a total surplus for the years 2009–2012 of approximately $1,600,000. Director stated the surplus was used for “equipment, training” in the TBI. He added, “in 2008, we were faced with some pretty deep cuts… [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 because neither of these options were good, the TBI decided to increase the BADT fee on toxicology and blood alcohol testing to $250.” …He added that one of the ways he had tried to alleviate the backlog for testing was to see if there was a way “to generate some revenue internally” so that the TBI did not “have to keep coming back … every year asking for appropriations, more and more appropriations[.]”
…Director Gwyn said that if the BADT fee had not been increased from $100 to $250, eight Special Agents positions and eight Special Agent/Forensic Scientists positions would have been at risk for being eliminated….Director Gwyn stated that the proceeds from the increased BADT fee were used to cover all TBI operational costs, including retesting samples at AIT Laboratories, testing for drugs other than alcohol, courtroom testimony, and travel and training for its forensic scientists.
- At the time of Decosimo’s arrest, Code section 55–10–419 (2012), which imposed a $250 BADT fee for blood and breath tests and required the deposit of this fee into the TBI’s toxicology unit intoxicant testing fund, provided:
(a)(1) In addition to all other fines, fees, costs and punishments now prescribed by law, including the fee imposed pursuant to § 55–10–403(h), a blood alcohol or drug concentration test (BADT) fee in the amount of two hundred and fifty dollars ($250) shall be assessed upon a conviction for a violation of § 39–13–106, § 39–13–213(a)(2), § 39–13–218, § 39–17–418, § 55–10–205 or § 55–10–401, for each offender who has taken a breath alcohol test on an evidential breath testing unit provided, maintained and administered by a law enforcement agency for the purpose of determining the breath alcohol content or has submitted to a chemical test to determine the alcohol or drug content of the blood or urine.
*9 (2) In addition to all other fines, fees, costs and punishments now prescribed by law, including the fee imposed pursuant to § 55–10–403(h), a blood alcohol or drug concentration test (BADT) fee in the amount of one hundred dollars ($100) shall be assessed upon conviction for a violation of § 39–13–106, § 39–13–213(a)(2), § 39–13–218 or § 55–10–401, if the blood or urine of the convicted person was analyzed by a publicly funded forensic laboratory or other forensic laboratory operated by and located in counties having a population of not less than eighty-seven thousand nine hundred (87,900) nor more than eighty-eight thousand (88,000), according to the 2000 federal census or any subsequent federal census, for the purpose of determining the alcohol or drug content of the blood.
(b)(1) The fee authorized in subdivision (a)(1) shall be collected by the clerks of the various courts of the counties and forwarded to the state treasurer on a monthly basis for deposit in the Tennessee [B]ureau of [I]nvestigation (TBI) toxicology unit intoxicant testing fund created as provided in subsection (c), and designated for exclusive use by the TBI for the purposes set out in subsection (c).
(2) Moneys shall be deposited to the fund pursuant to subsection (b), and as may be otherwise provided by law, and shall be invested pursuant to § 9–4–603. Moneys in the fund shall not revert to the general fund of the state, but shall remain available for appropriation to the Tennessee bureau of investigation, as determined by the general assembly.
(3) Moneys in the TBI toxicology unit intoxicant testing fund and available federal funds, to the extent permitted by federal law and regulation, shall be used to fund a forensic scientist position in each of the three (3) bureau crime laboratories, to employ forensic scientists to fill these positions, and to purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the bureau to operate in a more efficient and expeditious manner. To the extent that additional funds are available, these funds shall be used to employ personnel, purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the bureau to operate in a more efficient and expeditious manner.
T.C.A. § 55–10–419 (2012) (emphases added).
- Footnotes from the Case:
- TBI’s report, which stated that the State made approximately 29,554 DUI arrests, with an 89% conviction rate, and that defendants who were convicted of DUI paid a fee of $250 to the TBI. Senator Gardenhire made the statement that with an 89% conviction rate, this would mean that the TBI received over $6,000,000 each year from these fees. He then questioned why the TBI only reported earning $3,000,000 from these fees. Ed Jones, the Deputy Director of the TBI responded that this disparity could be caused by the difference between the time of arrest and the time of adjudication, and Director Gwyn added that the TBI had never received $6,000,000 in any given year from this fee.
- This supplemental exhibit included the Department of Revenue’s responses to the defense’s public records request for the total amounts collected from the $250 BADT fee imposed by Code section 55–10–413(f) as well as the following table, which corresponded to the Department of Revenue’s more detailed response that listed the BADT fee collections for each county:
Year BADT Collection
State v. Decosimo, No. E201700696CCAR3CD, 2018 WL 733218 (Tenn. Crim. App. Feb. 6, 2018).