It’s a rare day when an Appellate Court admits a law enforcement agency has a financial incentive to secure convictions. Tennessee’s Court of Criminal appeals just did.
Because the money from the $250 BADT fees is placed directly in the intoxicant testing fund which is “designated for exclusive use by the TBI,” there is no question that the TBI, an agency of the State, has a direct pecuniary interest in securing convictions.
The Tennessee Bureau of Investigations, or TBI, is the primary state agency analyzing blood samples and breath tests administered for DUI cases. Such analysis requires a person trained to examine each sample properly, and those people have to be paid for their time.
It isn’t a good look, though, when the money putting food on the analyst’s table comes from a fund that gets bigger with every DUI conviction. Yet a few lines in a state statute did just that, placing the money from every DUI conviction the Bureau garnered in a special fund dedicated to fattening TBI analysts’ pockets.
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.
This was different from other fines and fees in that the moneys paid by defendants went straight to the TBI, for exclusive use by the TBI. It paid for the creation of a forensic scientist position, paid the scientists, and bought all their shiny toys.
Best practices for distribution of funds collected by a court would ideally see the money first hit the state’s General Fund, then distributed to the Tennessee Bureau of investigations. What made the TBI different? They told the state they needed more money.
TBI Director Gwyn, in his testimony before the Senate Judiciary Committee on February 11, 2014, explained that in 2008 the TBI was “faced with some pretty deep cuts” that would have required the TBI to “shut down some disciplines with our crime laboratory” or to “start charging local law enforcement for testing.”
So at the behest of the TBI, the state legislature raised the fee from $100 to $250 and made sure the money went straight to the Bureau for “efficient and expeditious” operation. The only problem was “efficient and expeditious” didn’t always equate to correct.
Testimony from one attorney found TBI Agent Kyle Bayer, one of the Bureau’s forensic scientists, failed to follow protocols and often produced faulty results when testing blood samples. Another attorney testified the TBI’s “Official Alcohol Report” was “the driving factor” in any DUI case. A 2012 change in the laws making blood tests mandatory if an impaired driver killed someone resulted in a four to five month delay in returned results.
In response, the State argued the only way the fine was unconstitutional was if defendants could show the TBI was falsifying test results to obtain the $250 fine for its coffers. Furthermore, since their forensic scientists were serving as experts and not judges, they weren’t required to be neutral.
To paraphrase the Tennessee Court of Criminal Appeals, “That would be a big fat nope.” In a surprise twist, the Court held the additional $250 fine per conviction denied DUI defendants their right to due process.
The requirement of a neutral and objective TBI forensic scientist fits well with the State’s duty to pursue truth and justice in criminal cases…The need for an unbiased TBI forensic scientist is also consistent with holdings prohibiting the State’s suppression of evidence or its use of false testimony, which likewise implicate due process concerns…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. (emphasis mine)
Not every defendant charged with DUI can afford independent testing. If the TBI has a backlog in testing, there’s an incentive for defendants to plead guilty and settle their case before lab results return. Since each guilty plea netted TBI another $250, they were obligated to make sure their results were accurate and unbiased.
The law has changed since Rosemary Decosimo challenged the TBA’s financial interest in securing DUI convictions. Ms. Decosimo will get another hearing more in line with her rights to due process as a result of this appeal. That doesn’t change the unknown number of defendants who didn’t get a fair chance at trial because the TBI, and the state legislature, prioritized money and convictions over a defendant’s constitutional rights.