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State v. Decosimo

Court of Criminal Appeals of Tennessee, Knoxville

February 6, 2018


          Session October 10, 2017

         Appeal from the Criminal Court for Hamilton County No. 287934 Paul G. Summers, Senior Judge

         Defendant-Appellant Rosemary L. Decosimo entered a plea of nolo contendere to driving under the influence per se and reserved a certified question regarding the trial court's denial of her motion to dismiss the indictment, or in the alternative, motion to suppress the test results from her blood test. She argues on appeal that the trial court erred in denying her motion on the basis that Tennessee Code Annotated section 55-10-413(f), which gives the Tennessee Bureau of Investigation $250 for each DUI conviction that is obtained using a blood or breath test, is unconstitutional. For the reasons that follow, we agree with Decosimo and reverse the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

          Jerry H. Summers, Benjamin McGowan, and Marya Schalk, Chattanooga, Tennessee, for the appellant, Rosemary L. Decosimo.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; M. Neal Pinkston, District Attorney General; Matthew O'Brien, Special Prosecutor Pro Tem; and Kate Lavery, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Robert L. Holloway, Jr., JJ., joined.



         In May 2013, the Hamilton County Grand Jury indicted Decosimo with failure to yield, driving without a license in her possession, failure to maintain her lane, driving under the influence (DUI), and DUI per se. On January 31, 2014, Decosimo filed a motion to dismiss the indictment, or in the alternative, to suppress the evidence from her blood test, arguing that Code section 55-10-413 is unconstitutional because it creates a fee system that violates the right to due process and a fair trial. Decosimo's motion was consolidated for the purpose of argument with the motions of over twenty similarly-situated defendants who also had provided blood or breath samples to law enforcement, and these motions were heard before the three Hamilton County Criminal Court Judges, sitting en banc.

         Hearing on Motion to Dismiss, or in the Alternative, Motion to Suppress.

         At the August 1, 2014 hearing on this consolidated motion, the defense argued that Code section 55-10-413(f) violated the defendants' right to due process and a fair trial. Defense counsel suggested that the trial court had four options in ruling on this motion: (1) the court could deny the motion; (2) the court could order that the jury be given an instruction that the TBI has a financial interest in obtaining DUI convictions and that the jury would determine the credibility of any breath or blood tests in light of this financial interest; (3) the court could suppress and exclude the results from the blood or breath tests; or (4) the court could dismiss the indictments in light of the egregiousness of the constitutional violations.

         The parties then submitted the following written stipulations of fact for the purposes of this hearing:

1. The above named defendants as well as the defendants listed on Exhibit A attached hereto (hereinafter "Defendants") are charged in the Hamilton County Criminal Court with driving under the influence (DUI), vehicular assault and/or vehicular homicide related to the operation of a motor vehicle while allegedly under the influence of an intoxicant.
2. Each of the Defendants has filed a Motion to Dismiss: Blood Testing Evidence which raise[s] identical issues of law and the hearing of which has been consolidated for hearing before the three judges of the Hamilton County Criminal Court.
3. Each of these Defendants provided, either voluntarily or involuntarily, a breath or blood sample to law enforcement in conjunction with their arrests.
4. In the case of the blood samples, the Defendants' blood was sent to the Tennessee Bureau of Investigation Forensic Services Division where it was tested for the presence and concentration of ethyl alcohol or other intoxicants.
5. In the case of the breath samples, the Defendants provided a breath sample which was tested by a breath analysis machine, specifically model EC/IR II, for the presence and concentration of ethyl alcohol. The breath analysis machines upon which this testing was performed are calibrated, maintained and certified by the Tennessee Bureau of Investigation.
6. In addition to testing the blood samples and calibrating and certifying the breath analysis machines, agents of the Tennessee Bureau of Investigation (TBI) are regularly called as witnesses in court at pretrial hearings and trial to testify regarding the testing process, equipment, results of testing, and other matters relevant to the chemical analysis of the blood or breath evidence. In some cases, the actual written reports of the chemical testing are admitted into evidence at pretrial hearings and/or trial.
7. Each of the Defendants, if convicted, will be subject to certain fees, specifically BADT and BAT fees, to be paid as part of their court costs.
8. No BADT or BAT fees are charged where a case is dismissed, a not guilty verdict returned, or where a defendant pleads to a non-DUI related offense.
9. By statute, these BADT and BAT fees are collected by the court clerk for the applicable court and are paid ultimately to the Tennessee Bureau of Investigation where they are used for all TBI agency operational costs as permitted by statute.

         Decosimo also admitted as an exhibit TBI Director Mark Gwyn's February 11, 2014 testimony before the Senate Judiciary Committee. As a part of this testimony, Director Gwyn referenced the TBI's financial report from the Intoxicant Testing fund where the $250 Blood Alcohol or Drug Concentration Test (BADT) fees are deposited, which depicted the total amount of revenue from this fund and the total expenses for the fiscal years of 2009-2012. He stated that in 2009, the TBI had revenues from the intoxicant testing fund of approximately $999, 000 and expenses of $750, 000; in 2010, the TBI had revenues from the fund of around $1, 011, 000 and expenses of $690, 000; in 2011, the TBI had revenues from the fund of approximately $1, 500, 000 and expenses of $1, 400, 000; and in 2012, the TBI had revenues from the fund of 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 Gwyn stated that this surplus was used for

         "equipment, training" in the TBI. He added, "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." He explained that because neither of these options were good, the TBI decided to increase the BADT fee on toxicology and blood alcohol testing to $250. The TBI's financial report for the Intoxicant Testing was also admitted as an exhibit at the hearing. This report, which was consistent with Director Gwyn's testimony regarding the revenues and expenses, stated that the revenue from the Intoxicant Testing fund supports "TBI operating expenditures in all its divisions, which include travel, training, supplies and equipment" and that "[i]n any given year, when revenue exceeds expenditures, those [surplus] funds are reserved, as directed by Tennessee Code Annotated."

         Director Gwyn said there was no way to project how many of these BADT fees would be collected or what types of expenses the TBI would have in a given year. However, he said that by increasing this fee, the TBI was able to avoid "lay[ing] off forensic scientists" and was able to avoid "pass[ing] that [fee] back onto local law enforcement who could not pay it at the end of the day."

         When Senator Todd Gardenhire asked if there might be an incentive for the TBI to do extra testing to get additional money to pay for its expenses, Director Gwyn responded, "Absolutely not. There's no way to do any extra testing." Senator Gardenhire then noted that some of the senators on the committee had suggested that to avoid the appearance of impropriety, the money from these fees should flow into the general fund, and the TBI could request appropriations to cover its expenses, which would remove the appearance that the fee was a "revenue-generator." To this, Director Gwyn replied:

Yes. I mean, I think someone can say almost anything they want to say. You know, does a patrol officer out here calibrate his radar gun so it shows someone speeding at a higher rate of speed to write a ticket to generate revenue from tickets?
I think we just have to let our testing stand on its own. There's been plenty of trial and defense attorneys that have taken our toxicology and our blood alcohol exams, outsourced them to private laboratories.
Unfortunately, we had one incident in the Chattanooga area where a young forensic scientist [Kyle Bayer] made a mistake. He paid for that mistake. He was dismissed. We've outsourced all of the cases that [Kyle Bayer] had worked. We have 2, 000 of them back, and there's been no other mistakes.
So, obviously, we don't want the appearance that we're doing anything wrong. 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.
We just felt like that, on a conviction, part of the court fee could go to this so that we would not have to bring it back on local law enforcement and hurt them in that way, with some of them not being able to fund [these tests]. This type of testing is very expensive.
[The Intoxicant Testing Fund] was not meant to make [the] TBI rich. And, as you can see, with a million and something left over, that could be used up probably in about two instruments within the laboratory.
So, but, at the will of whatever the legislature thinks, you know, obviously, I will abide by that. But, you know, and I guess that's the best answer. I mean, we don't want any negative cloud hanging over our head, obviously.
But, I think, no matter sometimes what you do, it's hard to-you know, you can be painted in a bad light no matter what you do.
And we could have probably asked to have a fee placed on all testing whether they were convict[ed] or not convict[ed], but we didn't think that was the way to go either.
We just felt like that, if there was a conviction, it went through the court process, and that person, they had an attorney or whoever and they chose to take that sample and get it outsourced to check behind us, then that would take care of any need for any type of reason of why we would have wrongly accused someone[.]

         Director Gwyn stated that in years' past, when the TBI's budget had been reduced, the TBI "cut back on training, and we gave up positions where I was down to nothing but agents left to cut and forensic scientists, " which he said affected the cases being worked and the efficiency of the lab testing and could result in the "shut down of the court system." 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[.]"

         The defense also submitted, by stipulation, an exhibit containing testimony of Director Gwyn that was made in lieu of a personal appearance at the motion hearing. Therein, Director Gwyn stated that the increase to $250 BADT fee was "necessary to offset state budget cuts that would have severely hampered state law enforcement efforts." He acknowledged that in 2008-09, the actual cost to the TBI for a blood alcohol test was $84 and for a toxicology test was $275 and that in the three years prior to the increase in the BAT/BADT fee, the TBI charged a BADT fee of $100. 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 acknowledged that AIT Laboratories[1] was charging the TBI a flat rate of $35 for ethyl alcohol testing in its retesting of a large batch of TBI samples. However, he said this amount was "not comparable with the total toxicological services provided by TBI" and "did not include any courtroom testimony." He also asserted that 35% to 40% of the samples submitted to the TBI for toxicological analysis required a full drug screen in addition to the ethyl alcohol analysis. 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. Finally, he said that convictions could be based on a breath alcohol analysis, a blood alcohol analysis, a drug screen, or a combination of testing and that the type of testing performed was unrelated to the amount of the fee.

         The defense also submitted an exhibit containing documents from a case involving Dale Ferrell, who had been charged with vehicular homicide and DUI. The documents showed that the State filed a motion to dismiss the indictment against Ferrell after it discovered that TBI Agent Kyle Bayer, a forensic scientist, had failed to follow TBI protocol and had switched another defendant's sample with Ferrell's sample. As a result, Agent Bayer's TBI report showed that Ferrell had a blood alcohol concentration (BAC) of .24%, when Ferrell's actual blood alcohol concentration was .01%. After discovering this error, the TBI had all samples tested by Agent Bayer retested by AIT Laboratories. Additional records regarding the retesting of some of the blood samples originally tested by Agent Bayer were admitted as an exhibit. For the majority of the samples, the retesting showed a BAC that was the same or slightly higher than Agent Bayer's test result; however, for 43 out of the approximately 250 samples, the retesting showed a slightly lower BAC than Agent Bayer's test result.

         The defense also presented testimony from Raymond W. Fraley, an attorney in Lincoln County, who stated that he had handled over 2000 DUI cases. Fraley said that over the years, he noted that there was an increase in emphasis on blood and breath tests and that there were now crimes and penalties that were proved through a chemical test result, like DUI per se for individuals with a BAC of 0.08% or increased jail time for individuals with a BAC of 0.20% or more. Fraley said he did not always have blood samples independently tested because in some cases, for example, when a defendant had admitted to drinking several beers, retesting would not be helpful. He asserted that some of the errors in TBI testing would escape notice because the test result, whether correct or incorrect, would not necessarily be at odds with what the defendant disclosed to his attorney, i.e., that he had some drinks prior to submitting to the blood or breath test. He also said that judges and prosecutors relied heavily on the accuracy of the TBI's test results and that these test results influenced whether a defendant would fight the case, which was very expensive, or enter a guilty plea.

         Fraley acknowledged that the $250 fee for independent testing of the sample was "moderately inexpensive." However, he said that in those cases where he gets a variance from the TBI test results, he then files a motion to dismiss, for which he must charge his client an additional legal fee. Fraley added that in cases he has to try in circuit or criminal court, experts can cost his clients $15, 000 to $40, 000. As to the claim that any TBI bias could be explored through ...

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