The Tennessee Court of Criminal Appeals handed a local attorney a landmark victory Tuesday — and in the process froze hundreds of DUI cases in Chattanooga as state authorities scrambled to decode the order.
"I can tell you this," Chattanooga defense attorney Josh Weiss said, "I'm not going to be pleading anyone guilty to a DUI any time soon, especially if the court says it's unconstitutional."
Tuesday's ruling stems from a local challenge by attorney Jerry Summers, who said his client, Rosemary Decosimo, shouldn't have been convicted of DUI in March 2017 when the state's top law enforcement agency was running a multimillion-dollar fee system for more than a decade that encouraged positive results in blood-alcohol tests.
When they're successfully prosecuted for DUI, defendants have to pay $250 directly to the Tennessee Bureau of Investigation to cover the cost of a blood alcohol or drug concentration test fee. The TBI has made $22 million off thousands of DUI cases since the Legislature allowed the agency to begin collecting in 2005, according to the appeals court's decision.
But the state only collects when it wins, Summers said, making the fee system biased, unconstitutional and a violation of a defendant's right to a fair trial. With the vast majority of DUI cases being settled before trial, defendants who operate on a bootstrap legal budget rarely have the opportunity to challenge the state's blood results, Summers said.
The appeals court sided with Summers: "We cannot ignore that the TBI receives a fee for each conviction where a blood or breath test is performed but does not receive a fee if a defendant's charges are dismissed or reduced or if the defendant is acquitted.
"Because the money from the $250 fee 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 [monetary] interest in securing convictions," the appeals court decided.
Summers said Wednesday he was humbled by the court's ruling. Summers is the same defense attorney who triggered a 2013 review of 3,800 TBI lab results in various cases after he discovered that a technician switched one of his clients' blood samples with another sample, leading to an unfounded DUI charge that prosecutors later dismissed.
TBI spokeswoman Susan Niland said she wouldn't have a response ready for deadline, but the agency has previously denied any conflict of interest. In 2014 testimony before the General Assembly, Director Mark Gwyn said his agency increased the fee from $100 to $250 because the TBI was on the verge of eliminating 16 positions, eight of whom were forensic scientists.
Will the ruling overturn hundreds of cases? And will blood and breathalyzer results be inadmissible in DUI cases as long as the TBI profits from convictions? That's what Hamilton County court officials wondered Wednesday.
Until they know whether the Tennessee attorney general is going to appeal Tuesday's ruling, local prosecutors are going to hold off on prosecuting any DUIs with blood tests, said Melydia Clewell, spokewoman for Hamilton County District Attorney Neal Pinkston.
Since appeals can take years, some defense attorneys said they plan to act now since their clients are entitled to a speedy trial.
One said he scheduled a client with a DUI charge for trial as soon as possible. Others said they plan to file motions to toss out blood results. In the meantime, the Chattanooga Police Department said it's not changing its DUI enforcement.
"Our DUI investigators or officers will still collect breath or blood evidence as they normally have," spokesman Rob Simmons said. "This [ruling] is brand new and is being handled by the courts. As of right now, it is not impacting the enforcement actions of our officers."
Can prosecutors win a DUI case without blood tests?
"They can still prosecute them with field sobriety tests and an officer's testimony, but recently they've been reluctant to do so," said defense attorney Rip Biggs. "If they don't have video or don't have the blood, they don't prosecute further. If it's a multiple DUI offender, they offer a DUI first. If it's a first offender, they offer reckless driving."
Attorney Andrea Hayduk said a jury found her client not guilty last month based on a field sobriety test and police video. Hayduk said officers used a breathalyzer on her client but misplaced a test strip, meaning they couldn't introduce that evidence at trial.
"I think breathalyzers are all they can rely on now," she said.
Records show prosecutors have filed nearly 2,700 DUI cases in Hamilton County Criminal Court since 2012. Though a vast number of those cases have been resolved, Clewell said Wednesday she didn't know how many cases were pending.
State Sen. Todd Gardenhire, R-Chattanooga, said he and his colleagues haven't discussed Tuesday's ruling. But there could be a legislative fix: Divert the $250 away from the TBI's coffers and back to the legislature's general fund.
"I'm a big believer in, if there's a fine assessed on anything, that it goes to the general fund instead of designated departments," Gardenhire said. "Go through the general assembly to get your appropriation instead of building up a pool of fines and then spending it. That way, you remove any hint of impropriety. And I'm not insinuating there's any impropriety here. But you have to be careful with citizens."
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow him on Twitter @zackpeterson918.
This story was updated Feb. 8, 2018, at 12:53 p.m. to correct the first name of Mark Gwyn. A previous version of the story incorrectly called him Tony Gwyn.