Posts Tagged Tennessee DUI Blood Test

When the State’s Expert Witness Has a Financial Interest in DUI Convictions

On February 6, 2018, the Tennessee Court of Criminal Appeals ruled that Tennessee Code Annotated § 55-10-413(f), which establishes a BADT fee, is unconstitutional as a violation of the Due Process Clause of the Fourteenth Amendment and article I, section 8 of the Tennessee Constitution.

What is a BADT fee?

The Tennessee DUI law in question provides that,

In additional to all other fines, fees, costs, and punishments now prescribed by law, . . . a blood alcohol or drug concentration test (BADT) fee in the amount of two hundred fifty dollars ($250) shall be assessed upon a conviction for driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218, 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. T.C.A. § 55-10-413(f)(2017).[1]

The statute further indicates that the fee shall be collected by the court clerk and deposited in the TBI toxicology unit intoxication testing fund and may be used by the TBI “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. § 55-10-413(f)(2) and (3)(2017).

As noted by the Tennessee Court of Criminal Appeals, this blood alcohol or drug concentration test (BADT) fee provides the Tennessee Bureau of Investigation (TBI) with a direct financial interest in securing DUI-related convictions because this fee is not collected if the defendant’s charges are dismissed, reduced, or if the defendant is acquitted.

Due Process Requires Fairness and Impartiality

“When discussing the importance of due process protections, this court has reiterated that ‘[w]e cannot allow public confidence in the complete fairness and impartiality of our tribunals to be eroded and nothing which casts any doubt on the fairness of the proceedings should be tolerated.’” State v. Decosimo, No. E2017-00696-CCA-R3-CD, at *24 (Tenn. Crim. App. Feb. 6, 2018)(citations omitted).

Although they are employed by the state, TBI forensic scientists are expected to remain neutral and unbiased to protect the integrity of the criminal justice system. The BADT fee, however, provides these forensic scientists with a pecuniary interest because they may benefit from the collected fee (continued employment, salaries, equipment, and training). The court also noted that although a TBI analyst could lost his job if test results are falsified, the analysts would “most certainly lose their jobs if funding for their positions disappears, a result of which these forensic scientist are no doubt well aware.” Such a fee system calls into question the TBI forensic test results and, therefore, violated due process. State v. Decosimo, No. E2017-00696-CCA-R3-CD, at *27 (Tenn. Crim. App. Feb. 6, 2018)(citations omitted).

Impact of the Unconstitutionality of the BADT Fee

Attorneys across the state of Tennessee are taking a closer look at all DUI cases involving a chemical test sample. Depending on the facts of the case, and the jurisdiction, DUI defendants could benefit from the suppression of the blood or breath test results from evidence. If the evidence of impairment is limited to the chemical test result, attorneys may even find success in arguing motions to dismiss the criminal case against the defendant.

The Tennessee Attorney General’s office has filed an application to the Tennessee Supreme Court for permission to appeal the Tennessee Court of Criminal Appeal’s decision. This Rule 11 application highlights the need for an urgent, “expeditious review” given the fact that the Decosimo ruling impacts thousands of past convictions as well as current and future DUI-related prosecutions. Although it is likely that the Tennessee Supreme Court will agree to hear the appeal, it remains to be seen whether they will ultimately uphold the Tennessee Court of Criminal Appeals’ ruling that the BADT fee is unconstitutional, or if the court will reverse the decision and find the fee constitutionally permissible.

If you would like further information about Tennessee DUI laws, or your case, you may contact the Oberman and Rice Law Firm at (865) 249-7200.

[1] At the time of the defendant’s arrest in State v. Decosimo, the relevant statute number was T.C.A. § 55-10-419 (2012). Since that time, this code section was transferred to the current location of § 55-10-413 and minor changes have been made by the Tennessee legislature.

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Your blood can now be taken by someone not certified to do so.

In his March 7, 2012 post, Steve Oberman posed the question, “Would you want your blood taken by someone not certified to do so?” He was referring to Tennessee Senate Bill 2787/House Bill 2858, which eliminates the requirement that a phlebotomist permitted to draw blood from a Tennessee DUI suspect be certified or nationally registered.  I am sorry to report that this bill passed, becoming Public Chapter No. 0666, and became effective on April 4, 2012.

This new law allows blood to be drawn by a “trained phlebotomist who is operating under a hospital protocol, has completed phlebotomy training through an educational entity providing such training, or has been properly trained by a current or former employer to draw blood.”  The website explains the typical certification process for phlebotomists and provides training course length than ranges from 4 to 24 months.  As discussed in Steve’s previous post, Tennessee law does not specify the amount of training required.  Certainly a very minimal amount of training could qualify one under this new law considering  the fact that the person need only receive training from “a current or former employer.”

The lawyers at Oberman & Rice continue to monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases.  Should you have any questions about a pending Tennessee DUI law or issue, you may contact Steve, Sara, or Nate by calling (865) 249-7200.  You may also wish to review our website for additional information about Tennessee DUI Laws by clicking here.


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Would you want your blood taken by someone not certified to do so?

In 2012 Senate Bill 2787, Senator Brian Kelsey, a Republican from Germantown (part of Shelby County), has sponsored a bill allowing a person who is “properly trained,” but not necessarily certified to draw the blood of a person suspected of DUI to determine alcohol and/or drug content. What should concern Tennessee citizens is that this bill removes the requirement found in current law (T.C.A. Section 55-10-410 which deals with drawing blood in driving under the influence/implied consent violation situations) that the person drawing the blood shall be:

A registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed emergency medical technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified and/or nationally registered phlebotomist or at the direction of a medical examiner or other physician holding an unlimited license to practice medicine in Tennessee under procedures established by the department of health.

Remarkably, there are no provisions in this bill detailing the amount of training or even requiring that the person drawing the blood pass a proficiency test.  Nor are there provisions requiring a judge to determine that probable cause (the legal grounds required for arrest) exists before the blood is taken from the body.

While I am certainly far from a health care professional, I have had substantial experience as a non-certified phlebotomist when I worked in a hospital blood laboratory, albeit about 35 years ago.  I am aware of some of the potential complications from an improper blood draw such as thrombophlebitis, infection, damage to blood vessels, hematoma/bruising, and damage to the nerves near the venipuncture site.

Moreover, the proposed law gives no consideration to the fact that the officer may suffer from a contagious disease, is working in poor lighting conditions, or may be distracted by law enforcement duties during the blood draw. If a medical condition occurs during a blood draw—the criminally accused would have no immediate access to a healthcare provider for treatment.  In some situations, such as infection, the symptoms, etc. may manifest long after the actual blood draw.

Not surprisingly, the proposed law provides that the person drawing blood shall not incur any civil or criminal liability as a result of drawing the blood, except for damages that may result from negligence.  This means that a law enforcement officer with minimal training would be allowed to draw blood from a suspect with their arm on the hood of the police vehicle or similar unsterile environment.  This could be done without supervision from any other person, opening the door to abuse and negligence that would be difficult to prove except in a rare circumstance where the invasion of one’s body would be documented by video.

In 2006, Ann Japenga, a reporter for the New York Times, wrote about her debilitating injury that, after much suffering, was determined to have been caused by the needle going through her vein and causing dangerous but invisible bleeding into her arm.  The injury, caused by a phlebotomist in her doctor’s office, required surgery “to prevent permanent loss of the use of [her] arm, as well as a condition called “claw hand” that causes your digits to curl up like a sea anemone.”  The full article can be accessed here:

Simply allowing the injured party to sue for negligence, as Senator Kelsey proposes, is not an appropriate remedy.  This type of case would have limited allowances for recovery.  With few exceptions, Tennessee law limits recovery against governmental entities to the amount of $300,000.00 pursuant to The Governmental Tort Liability Act.  Furthermore, this type of recovery would likely require the services of a civil lawyer who would (and should) charge a fee for his or her services.  Accordingly, the injured party would likely receive less than two-thirds of a recovery after attorney fees.  Moreover, expert fees, deposition costs and other trial expenses would have to be borne by the injured party.

If you have ever had a medical professional who is certified to draw your blood need to “stick” you on several occasions to obtain a sufficient sample, you can only imagine the type of abuse a suspect would receive from an uncertified law enforcement official.  I urge you to contact your Legislator to vote against this bill.

It is also most interesting that Senator Kelsey is sponsoring another bill making it a crime that carries a penalty of up to 30 days in jail for a law enforcement officer to unlawfully install a tracking device on a person or object (2012 Senate Bill 3046).  If he doesn’t trust a police officer to comply with a citizen’s right to privacy, how in the world would he expect an officer not to abuse a suspect when they stick a sharp object into their arm or other part of their body?

The lawyers at Oberman & Rice frequently monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases.  Should you have any questions about a Tennessee DUI issue, you may contact Steve, Sara, or Nate by calling (865) 249-7200.  You may also wish to review our website for additional information about Tennessee DUI Laws by clicking here.

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