published Saturday, August 2nd, 2014

Chattanooga lawyer challenge could alter DUI fees statewide

Judges Barry Steelman, Don Poole and Rebercca Stern, from left, hear a case from Jerry Summers Friday at the City-County Courts building.
Judges Barry Steelman, Don Poole and Rebercca Stern, from left, hear a case from Jerry Summers Friday at the City-County Courts building.

A seasoned local attorney has challenged how the state’s top law enforcement agency collects fees on DUI convictions, alleging bias and constitutional rights violations.

Jerry Summers argued to Hamilton County Criminal Court Judges Rebecca Stern, Don Poole and Barry Steelman on Friday that a $250 fee, what Summers calls a “bounty,” paid by defendants convicted of DUI charges, creates a “conflict of interest” because the money goes straight to the Tennessee Bureau of Investigation.

If any of the three local Criminal Court judges who heard his case agree, it could fundamentally alter how the TBI funds its alcohol testing.

In the hearing, local prosecutor Kate Lavery called Summers’ theory a “terrible accusation” that implies forensic scientists at the TBI laboratory have intentionally falsified lab results to help the agency get the $250 fee.

Summers told the judges he would “not impugn the integrity of a statewide agency unless I’ve got proof.”

Steelman cut in, asking if Summers had any data supporting impropriety.

“I mean, I haven’t heard any,” Steelman said.

Summers said data wasn’t required; the mere “appearance of impropriety” was enough to trigger possible constitutional due process problems.

Summers asked the court to dismiss charges against his 23 clients facing DUI charges. Short of a dismissal, he asked that juries be given special instruction on the potential “conflict of interest” in future trials.

He said a true remedy would be for the fee to be sent to the state Legislature’s general fund, which would remove appearances of bias or impropriety since the money would be collected and distributed by a third party.

To support his theory and allegations, Summers pointed out that earlier this year, TBI Director Mark Gwyn testified to the Tennessee state Senate Judiciary Committee that the fee was raised from $100 to $250 in 2010 to avoid layoffs and other cutbacks at the forensic testing division of the TBI crime lab.

Summers showed that from 2009 through 2012 the agency reaped a $1.6 million profit from the testing, all of which went straight to the agency. There was no increase in testing costs.

The test costs between $100 and $150, according to court documents.

Summers and co-counsel Ben McGowan told the judges about the separate case of Dale Edward Ferrell, who was charged with vehicular homicide and DUI in the fatal March 16, 2013, crash that killed Knoxville architect Edward Bankston. His trial was the “genesis” of 2,800 retests of DUI blood samples by an Indiana laboratory.

Ferrell’s charges were later dismissed when errors showed that his reported 0.24 blood-alcohol level was inaccurate.

A review resulted in the firing of then-TBI special agent Kyle Bayer. All of his tests were retested at the out-of-state lab.

Steelman asked how many of the 2,800 came back with errors. A report by the TBI earlier this year, when 2,000 had been tested, showed that none but Ferrell’s had.

Summers disputed this, claiming that some of the tests had differences of 0.01 or more. Different levels of punishment are triggered at levels of 0.08, the legal alcohol limit for driving, at 0.15 and at 0.21, Summers noted.

The judges are expected to rule on Summers’ request by the third week of September.

Contact staff writer Todd South at tsouth@timesfreepress.com or 423-757-6347. Follow him on Twitter @tsouthCTFP.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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