Tennessee's top state attorneys plan to appeal controversial DUI fee ruling

Tennessee's top state attorneys plan to appeal controversial DUI fee ruling

February 13th, 2018 by Zack Peterson in Local Regional News

In this 2015 staff file photo, a sign comparing the costs of a taxi ride and a DUI conviction is seen on the back window of a Tennessee Highway Patrol vehicle painted to resemble a taxi during a news conference with members of the Chattanooga Police Department, Hamilton County Sheriff's Office and Georgia State Patrol in Chattanooga, Tenn., discussing DUI enforcement efforts during the holiday season.

Photo by Staff File Photo /Times Free Press.

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As local attorneys grapple with a controversial ruling that threw hundreds of DUI cases into limbo, Tennessee's top prosecutors said Monday they're going to appeal the decision as soon as possible to the highest court in the state.

The Criminal Court of Appeals ruled last week the Tennessee Bureau of Investigation was overseeing an "unconstitutional" fee system that only required defendants pay a $250 blood test fee upon their conviction.

Because of that ruling, which stems from a 2012 DUI case in Chattanooga, many attorneys believe Tennessee courts can't allow blood or breathalyzer testing into evidence in DUI cases as long as TBI's crime lab continues to receive the fee. They say the fee serves as a conflict of interest that brings the testing results into question.

And in Chattanooga's criminal courts, the ruling is already making waves: At least two defense attorneys filed motions Monday to throw out blood tests in pending DUIs, and several others are drafting similar requests in upwards of 50 cases.

DUI cases are more challenging for prosecutors to win without blood tests in evidence. And since last week's ruling has the potential to upend thousands of cases beyond Chattanooga, the Tennessee Attorney General's Office plans to file a quick appeal to the Tennessee Supreme Court before its 60-day time limit is up.

"Because the intermediate court ruling will impact the handling of all pending DUI cases in trial courts, we will do our best to impress on the Court the need for expeditious action on the application," Rachel Willis, the deputy attorney general for the state of Tennessee, wrote in an email Monday to local prosecutors. "And if it is granted, we will consider asking for an expedited appeal."

In the meantime, local prosecutors have hit the brakes on DUI cases with blood tests at the same time defense attorneys are plowing forward. The end result: Judges have to patiently set new court dates and hope no backlog crops up.

"In light of last week's ruling, [my] case is ripe to benefit from a motion to suppress," defense attorney Meredith Ziebold told Hamilton County Criminal Court Judge Barry Steelman.

Ziebold said her client didn't perform any field sobriety tests, but the officer preserved on-scene video and got a blood test. Ziebold said she didn't believe the case could go to trial without blood. But after discussing it with a prosecutor, she returned to the courtroom and said they needed to set a new court date.

"[The prosecutor] has asked that we put both cases off to see what's going on," Ziebold said. "Subject to the court's approval, we'd like to put that on April 9 at 9 a.m."

Melydia Clewell, spokeswoman for Hamilton County District Attorney General Neal Pinkston and his prosecutors, said authorities aren't worried about a backlog in court. Even without a controversial ruling like this, criminal cases can take years to finish between rescheduled dates, with defendants going through multiple attorneys or prosecutors waiting on state labs to test guns, blood samples and other evidence.

The big question is whether last week's ruling becomes a permanent piece of case law that judges must consider while ruling in future cases. The Tennessee Supreme Court, which sits at the top of the state's legal hierarchy, would have a big hand in determining that.

Attorneys from the Tennessee Attorney General's Office believe the ruling is persuasive authority, Clewell said. Persuasive authority is something a judge can consider but isn't bound to follow.

"Let's say there's a case out of Georgia's Supreme Court dealing with Georgia law, but it may have the same kind of issues," said attorney Robin Flores, who filed motions to dismiss or suppress blood evidence in four cases Monday. "In Tennessee, it doesn't apply to Tennessee law. But it may persuade a judge to say, 'Hey, look, we agree with that.'"

Hamilton County's three Criminal Court judges heard about the issue when attorney Jerry Summers raised it in 2014. His client, Rosemary Decosimo, 27, is at the center of the controversial ruling, and Summers said her blood results and others needed to be suppressed because the fee-system violates the right to a fair trial.

The TBI, which has always denied any kind of bias or conflict of interest, often tests people's blood for the presence of alcohol and drugs in DUI cases. But in addition to that, "agents of the 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," according to Criminal Court documents.

Ruling together, the Hamilton County judges said jurors could be given a special instruction in DUI cases if attorneys were concerned about the possibility of bias.

Ultimately, Summers' client pleaded guilty to DUI in March 2017, and he appealed her conviction afterwards.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.