This story was updated May 31, 2018, at 11:59 p.m. with more information

Some Tennessee Supreme Court justices seemed sympathetic to a local attorney's argument Thursday that a fee system used in DUI prosecutions is unconstitutional. But without a legal framework for how to deal with possible abuses, others weren't as swayed.

"I don't think anyone is going to argue with you that it stinks to high heaven," Chief Justice Jeffrey Bivins said to Chattanooga attorney Jerry Summers. "But that doesn't rise to the level of a constitutional violation. What framework do we use?"

It was a question Summers and the justices would go back and forth on multiple times during his 30-minute presentation to the state's highest court. The justices will release their opinion at a later date.

Since his client was charged with DUI in 2012, Summers has argued the state's top law enforcement agency, the Tennessee Bureau of Investigation, runs a multimillion-dollar fee system that encourages positive results in blood-alcohol tests. When defendants are convicted of DUI or other impaired driving offenses, they must pay $250 to the Tennessee Bureau of Investigation to cover the cost of a blood alcohol or drug concentration test, Summers said. According to court records, the TBI has made $22 million off thousands of DUI cases since the Legislature allowed the agency to begin collecting in 2005.

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.

When the Court of Criminal Appeals agreed with parts of Summers' argument in February, many defense attorneys argued that blood and breathalyzer results can't be admitted as evidence as long as the TBI's crime lab operates under that fee system. That prompted a quick appeal to the Tennessee Supreme Court from state attorneys and a bill in the Legislature that would funnel the $250 fees to the state's General Fund instead of the TBI.

Was it bad public policy to allow the TBI to collect that fee, Justice Sharon Lee asked Tennessee Assistant Solicitor General Jonathan Shaub on Thursday.

"Certainly, someone can perceive a conflict of interest, as this case demonstrates," Shaub replied during his 30-minute presentation. "The Legislature decided to change that."

Shaub argued TBI forensic scientists have no financial incentive to falsify results. But if they do mess up blood samples, they are fired, he said. Plus, if defendants really weren't as impaired as the results claim, they can cross examine forensic scientists in court, Shaub said.

"There are almost 150 employees. Each lab has to be accredited by international standards. They are routinely checked and audited. One scientist made a mistake and was let go and dismissed," Shaub said. "The idea that a forensic scientist would falsify evidence and risk his or her job, the accreditation of the lab, perhaps criminal charges I don't think the average person would do that."

But Summers said not enough defendants can afford an independent blood test or good legal representation. There could be post-conviction issues to address, he said. Plus, there's always the potential for mistakes when DUI prosecutions are tied up in politics and massive amounts of money, he argued.

"I have a very simple premise," Summer said. "When you equate justice with money, justice loses."

But can the TBI wholesale falsify results, Justice Holly Kirby asked.

"I mean, how is that real?" she asked.

Kirby pointed out that forensic scientists don't know whether a particular blood sample belongs to a defendant who will challenge the results. "How far do we take it in holding that a case is unconstitutional because of something that's conceivable?" she asked.

"Many, many labs have had problems with the very things we're talking about," Summers replied.

Indeed, the TBI had to review 3,800 lab test results from various criminal cases in 2013 after a vehicular homicide case in Chattanooga was dismissed due to a lab error. Massachusetts dropped more than 21,000 tainted drug convictions — the single largest dismissal in U.S. history — last April that were associated with a chemist who admitted to doctoring results. And in North Carolina, agents either withheld or distorted evidence in more than 230 cases over a 16-year period, news accounts show.

Since February, Chattanooga prosecutors have held off on DUI cases with blood results until the Tennessee Supreme Court has ruled. Melydia Clewell, a spokeswoman for local prosecutors, said Thursday that remains the case.

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