Archive for category Chemical Tests
When the State’s Expert Witness Has a Financial Interest in DUI Convictions
Posted by Sara Compher-Rice in Breath, Chemical (Blood, Chemical Tests, Tennessee DUI Laws, Tennessee DUI News on March 19th, 2018
On February 6, 2018, the Tennessee Court of Criminal Appeals ruled that Tennessee Code Annotated § 55-10-413(f), which establishes a BADT fee, is unconstitutional as a violation of the Due Process Clause of the Fourteenth Amendment and article I, section 8 of the Tennessee Constitution.
What is a BADT fee?
The Tennessee DUI law in question provides that,
In additional to all other fines, fees, costs, and punishments now prescribed by law, . . . a blood alcohol or drug concentration test (BADT) fee in the amount of two hundred fifty dollars ($250) shall be assessed upon a conviction for driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218, for each offender who has taken a breath alcohol test on an evidential breath testing unit provided, maintained, and administered by a law enforcement agency for the purpose of determining the breath alcohol content or has submitted to a chemical test to determine the alcohol or drug content of the blood or urine. T.C.A. § 55-10-413(f)(2017).[1]
The statute further indicates that the fee shall be collected by the court clerk and deposited in the TBI toxicology unit intoxication testing fund and may be used by the TBI “to employ personnel, purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the bureau to operate in a more efficient and expeditious manner. T.C.A. § 55-10-413(f)(2) and (3)(2017).
As noted by the Tennessee Court of Criminal Appeals, this blood alcohol or drug concentration test (BADT) fee provides the Tennessee Bureau of Investigation (TBI) with a direct financial interest in securing DUI-related convictions because this fee is not collected if the defendant’s charges are dismissed, reduced, or if the defendant is acquitted.
Due Process Requires Fairness and Impartiality
“When discussing the importance of due process protections, this court has reiterated that ‘[w]e cannot allow public confidence in the complete fairness and impartiality of our tribunals to be eroded and nothing which casts any doubt on the fairness of the proceedings should be tolerated.’” State v. Decosimo, No. E2017-00696-CCA-R3-CD, at *24 (Tenn. Crim. App. Feb. 6, 2018)(citations omitted).
Although they are employed by the state, TBI forensic scientists are expected to remain neutral and unbiased to protect the integrity of the criminal justice system. The BADT fee, however, provides these forensic scientists with a pecuniary interest because they may benefit from the collected fee (continued employment, salaries, equipment, and training). The court also noted that although a TBI analyst could lost his job if test results are falsified, the analysts would “most certainly lose their jobs if funding for their positions disappears, a result of which these forensic scientist are no doubt well aware.” Such a fee system calls into question the TBI forensic test results and, therefore, violated due process. State v. Decosimo, No. E2017-00696-CCA-R3-CD, at *27 (Tenn. Crim. App. Feb. 6, 2018)(citations omitted).
Impact of the Unconstitutionality of the BADT Fee
Attorneys across the state of Tennessee are taking a closer look at all DUI cases involving a chemical test sample. Depending on the facts of the case, and the jurisdiction, DUI defendants could benefit from the suppression of the blood or breath test results from evidence. If the evidence of impairment is limited to the chemical test result, attorneys may even find success in arguing motions to dismiss the criminal case against the defendant.
The Tennessee Attorney General’s office has filed an application to the Tennessee Supreme Court for permission to appeal the Tennessee Court of Criminal Appeal’s decision. This Rule 11 application highlights the need for an urgent, “expeditious review” given the fact that the Decosimo ruling impacts thousands of past convictions as well as current and future DUI-related prosecutions. Although it is likely that the Tennessee Supreme Court will agree to hear the appeal, it remains to be seen whether they will ultimately uphold the Tennessee Court of Criminal Appeals’ ruling that the BADT fee is unconstitutional, or if the court will reverse the decision and find the fee constitutionally permissible.
If you would like further information about Tennessee DUI laws, or your case, you may contact the Oberman and Rice Law Firm at (865) 249-7200.
[1] At the time of the defendant’s arrest in State v. Decosimo, the relevant statute number was T.C.A. § 55-10-419 (2012). Since that time, this code section was transferred to the current location of § 55-10-413 and minor changes have been made by the Tennessee legislature.
“No Refusal” Sobriety Checkpoints on New Year’s Eve
Posted by Steve Oberman in Chemical Tests, Legal Rights, Tennessee DUI Checkpoints, Tennessee DUI Chemical Tests, Tennessee DUI Information, Tennessee DUI Laws, Tennessee DUI News on December 30th, 2016
On New Year’s Eve, as 2016 draws to a close, Tennessee Highway Patrol troopers will be out in force with multiple sobriety checkpoints throughout the state.
In East Tennessee, “No Refusal” Sobriety Checkpoints are planned in Knox, Loudon, Roane, Campbell, and Sevier County. For the exact locations and a full list of all planned checkpoints throughout the state, click here.
The term “No Refusal” relates to the use of chemical tests (blood, breath, or urine) to measure the concentration of alcohol or drugs in a person’s system. Usually, a person who is arrested for DUI has the right to refuse to consent to a chemical test, although there are exceptions to the right to refuse and there are consequences to refusing. If an arrestee refuses to consent, a law enforcement officer has the option of obtaining a search warrant that requires the arrestee to submit to a chemical test.
During “No Refusal” enforcement periods, like this holiday weekend, the Tennessee Highway Patrol typically has a Tennessee judge (or judges) on call. If a person is arrested for DUI and refuses to submit to a chemical test, and if the judge determines that the requisite legal grounds exist, the judge will issue a search warrant. This search warrant allows the officer to obtain a chemical test (most often a blood sample), even over the objection or refusal of the motorist placed under arrest.
Anyone arrested for DUI, or another related charge, should immediately contact a Tennessee DUI lawyer familiar with Tennessee DUI laws. For more information about the crime of driving under the influence (DUI) or about your legal rights with respect to a Tennessee Highway Patrol checkpoint, Steve, Sara, or AZ are available by calling 865-249-7200. You may also wish to visit www.tndui.com for more information about the offense of driving under the influence in Tennessee. Even during this busy holiday season, the DUI Defense attorneys at Oberman & Rice are available to speak with you 24/7.
About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants. Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. (NCDD) and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee. Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the NCDD.
He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 8th edition (Wolters Kluwer/Aspen). Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions. He is a popular international speaker, having spoken at legal seminars in 30 states, the District of Columbia and three foreign countries.
Tennessee Laws Get Tougher
At least two Tennessee laws have made it more difficult to defend persons accused of driving under the influence and, in another change, the DUI penalty when accompanied by someone under the age of 18 has increased.
The 2012 Tennessee Legislature amended Tennessee Code Annotated § 55-10-406, also known as the Implied Consent Law. This law applies when an officer requests the suspect to submit to chemical testing (blood, breath, or urine). The amendment clarified that an individual may be compelled to submit to a chemical testing if the testing is mandated by:
- A Court Order;
- A search warrant; or
- When a law enforcement officer has probable cause to believe that a driver of a motor vehicle involved in an accident resulting in the injury or death of another is guilty of vehicular homicide, aggravated vehicular homicide, or DUI.
The Legislature also amended Tennessee Code Annotated § 55-10-402 to clarify that no defense to DUI exists when a person is under the influence of an intoxicant even if they are entitled to lawfully use the substance/intoxicant.
Moreover, the penalty for a person convicted of DUI who was accompanied by a person under the age of 18 was enhanced. It now requires a mandatory minimum period of 30 days in jail and a mandatory minimum fine of $1,000.00. This law, which amended Tennessee Code Annotated § 55-10-403, states that the incarceration enhancement must be served in addition to, and at the conclusion of, any jail time and fine otherwise imposed for the underlying DUI offense. Likewise, the fine enhancement must be in addition to any fine imposed by law as a result of the Tennessee DUI conviction.
Laws such as these emphasize the importance of hiring a Tennessee lawyer who is educated about the newest laws and prepared to aggressively defend you. Too many people are wrongfully accused of driving under the influence and related charges. If you would like further information about these laws, or your case, you may contact the Oberman and Rice Law Firm at (865) 249-7200.
Your blood can now be taken by someone not certified to do so.
Posted by Sara Compher-Rice in Chemical (Blood, Chemical Tests, Tennessee DUI Chemical Tests, Tennessee DUI Laws, Tennessee DUI News on April 12th, 2012
In his March 7, 2012 post, Steve Oberman posed the question, “Would you want your blood taken by someone not certified to do so?” He was referring to Tennessee Senate Bill 2787/House Bill 2858, which eliminates the requirement that a phlebotomist permitted to draw blood from a Tennessee DUI suspect be certified or nationally registered. I am sorry to report that this bill passed, becoming Public Chapter No. 0666, and became effective on April 4, 2012.
This new law allows blood to be drawn by a “trained phlebotomist who is operating under a hospital protocol, has completed phlebotomy training through an educational entity providing such training, or has been properly trained by a current or former employer to draw blood.” The website www.phlebotomycertificationguide.com explains the typical certification process for phlebotomists and provides training course length than ranges from 4 to 24 months. As discussed in Steve’s previous post, Tennessee law does not specify the amount of training required. Certainly a very minimal amount of training could qualify one under this new law considering the fact that the person need only receive training from “a current or former employer.”
The lawyers at Oberman & Rice continue to monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases. Should you have any questions about a pending Tennessee DUI law or issue, you may contact Steve, Sara, or Nate by calling (865) 249-7200. You may also wish to review our website for additional information about Tennessee DUI Laws by clicking here.
Would you want your blood taken by someone not certified to do so?
Posted by Steve Oberman in Chemical (Blood, Chemical Tests, Frequently Asked Questions, Legal Rights, Tennessee DUI Chemical Tests, Tennessee DUI Information, Tennessee DUI Laws, Tennessee DUI News on March 7th, 2012
In 2012 Senate Bill 2787, Senator Brian Kelsey, a Republican from Germantown (part of Shelby County), has sponsored a bill allowing a person who is “properly trained,” but not necessarily certified to draw the blood of a person suspected of DUI to determine alcohol and/or drug content. What should concern Tennessee citizens is that this bill removes the requirement found in current law (T.C.A. Section 55-10-410 which deals with drawing blood in driving under the influence/implied consent violation situations) that the person drawing the blood shall be:
A registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed emergency medical technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified and/or nationally registered phlebotomist or at the direction of a medical examiner or other physician holding an unlimited license to practice medicine in Tennessee under procedures established by the department of health.
Remarkably, there are no provisions in this bill detailing the amount of training or even requiring that the person drawing the blood pass a proficiency test. Nor are there provisions requiring a judge to determine that probable cause (the legal grounds required for arrest) exists before the blood is taken from the body.
While I am certainly far from a health care professional, I have had substantial experience as a non-certified phlebotomist when I worked in a hospital blood laboratory, albeit about 35 years ago. I am aware of some of the potential complications from an improper blood draw such as thrombophlebitis, infection, damage to blood vessels, hematoma/bruising, and damage to the nerves near the venipuncture site.
Moreover, the proposed law gives no consideration to the fact that the officer may suffer from a contagious disease, is working in poor lighting conditions, or may be distracted by law enforcement duties during the blood draw. If a medical condition occurs during a blood draw—the criminally accused would have no immediate access to a healthcare provider for treatment. In some situations, such as infection, the symptoms, etc. may manifest long after the actual blood draw.
Not surprisingly, the proposed law provides that the person drawing blood shall not incur any civil or criminal liability as a result of drawing the blood, except for damages that may result from negligence. This means that a law enforcement officer with minimal training would be allowed to draw blood from a suspect with their arm on the hood of the police vehicle or similar unsterile environment. This could be done without supervision from any other person, opening the door to abuse and negligence that would be difficult to prove except in a rare circumstance where the invasion of one’s body would be documented by video.
In 2006, Ann Japenga, a reporter for the New York Times, wrote about her debilitating injury that, after much suffering, was determined to have been caused by the needle going through her vein and causing dangerous but invisible bleeding into her arm. The injury, caused by a phlebotomist in her doctor’s office, required surgery “to prevent permanent loss of the use of [her] arm, as well as a condition called “claw hand” that causes your digits to curl up like a sea anemone.” The full article can be accessed here: http://www.nytimes.com/2006/05/30/health/30case.html.
Simply allowing the injured party to sue for negligence, as Senator Kelsey proposes, is not an appropriate remedy. This type of case would have limited allowances for recovery. With few exceptions, Tennessee law limits recovery against governmental entities to the amount of $300,000.00 pursuant to The Governmental Tort Liability Act. Furthermore, this type of recovery would likely require the services of a civil lawyer who would (and should) charge a fee for his or her services. Accordingly, the injured party would likely receive less than two-thirds of a recovery after attorney fees. Moreover, expert fees, deposition costs and other trial expenses would have to be borne by the injured party.
If you have ever had a medical professional who is certified to draw your blood need to “stick” you on several occasions to obtain a sufficient sample, you can only imagine the type of abuse a suspect would receive from an uncertified law enforcement official. I urge you to contact your Legislator to vote against this bill.
It is also most interesting that Senator Kelsey is sponsoring another bill making it a crime that carries a penalty of up to 30 days in jail for a law enforcement officer to unlawfully install a tracking device on a person or object (2012 Senate Bill 3046). If he doesn’t trust a police officer to comply with a citizen’s right to privacy, how in the world would he expect an officer not to abuse a suspect when they stick a sharp object into their arm or other part of their body?
The lawyers at Oberman & Rice frequently monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases. Should you have any questions about a Tennessee DUI issue, you may contact Steve, Sara, or Nate by calling (865) 249-7200. You may also wish to review our website for additional information about Tennessee DUI Laws by clicking here.
Is it possible to fight a blood or breath test in a DUI case?
Posted by in Breath, Chemical (Blood, Chemical Tests, Court Procedures, Frequently Asked Questions, Hiring a Tennessee DUI Attorney, Tennessee DUI Chemical Tests, Tennessee DUI Information on February 29th, 2012
A Tennessee DUI lawyer should never take a chemical or breath test at face value. Different testing procedures are used across Tennessee to determine the amount of alcohol in a driver’s blood. Some Tennessee law enforcement agencies choose to draw blood from a DUI suspect, others use a breath test, and some even obtain a urine sample for analysis.
No matter what testing mechanism is used, the tests are not foolproof. Machines malfunction. Like a toaster, dishwasher, or hair dryer, machines wear down and break over time. Devices that collect and analyze blood, breath and urine are no different. Some machines and methods are less reliable than others. The tests are further subject to error by those persons involved in the collection and analysis processes.
A Tennessee DUI attorney should be familiar with the different tests and machines used in Tennessee. Hiring a motivated Criminal Defense lawyer gives someone the opportunity to fight all of the facts. In some cases, it may be possible to prevent the chemical test result from being used as evidence.
Additional information about Tennessee DUI offenses can be found on our websites at www.tndui.com and www.duiknoxville.com. You may also speak with one of our attorneys, You may reach Steve Oberman, Sara Compher-Rice or Nate Evans, by calling (865) 249-7200.
DUI Convictions & Breath Tests: A Love Affair Gone Wrong?
Posted by Steve Oberman in Chemical Tests on June 19th, 2010
On June 10, 2010 The Washington Post reported that nearly 400 drunk-driving convictions in Washington D.C. were based on flawed breath tests. For those unfamiliar with breath tests, “trained” officers using specialized equipment perform breath tests by having the suspect blow into the machine that supposedly determines the blood alcohol level. Police departments across the nation rely on these devices to prove your guilt. However, these tests, like all chemical tests, are highly susceptible to human and mechanical error.
In this investigation, police officers were charged with the task of calibrating these devices to ensure accuracy. However, according D.C. Attorney General Peter Nickles, city police improperly adjusted the machines. The machines, as calibrated, showed a driver’s blood-alcohol content to be approximately 20% higher than it actually was. On average, the jailed suspects spent at least 5 days in jail.
This can happen to you. Years ago, Tennessee dealt with a similar problem of flawed tests. In 1990, a police officer exposed how easily these so called “high tech” devices could be manipulated. During a trial, an attorney discovered that a Davidson County police officer demonstrated how, with a mere twist of the calibration knob, a breath test result could be adjusted from .01 % (when calibrated properly) to as high as .22 %. Based on this evidence, the judge dismissed the defendant’s case. While great pains were taken to remedy the problem, there is still a possibility that the device you are tested on will give false readings.
In Tennessee, breath tests create a rebuttable presumption that you are intoxicated. Essentially, the burden is on you to prove that you were not intoxicated. Without assistance from a trained professional, this can be very difficult to do. DUI convictions can ruin your life. Do you drive for a living? Do you have minor children who cannot take care of themselves? Or is driving fundamental to your life in some other way? If you answered yes to any of these questions, then you should understand that a DUI conviction might prevent you from fulfilling your responsibilities. Not only will you have to incur the costs of the conviction (court costs, fees, insurance premiums), you will also have to bear the stigma of being labeled a drunk driver.
Procedures and machines differ from state to state, police department to police department. The number of mistakes and errors that the police can make when preparing these devices is too numerous to list. However, an absence of human error cannot render these tests reliable. It suffices to say that, until we can ensure the machines are properly maintained and the tests are properly administered, this love affair between the police and their breath tests poisons our justice system and calls the validity of DUI convictions into question. If you have been stopped, cited, or arrested for any DUI related offense, contact a DUI attorney.
The attorneys at the Oberman and Rice Law Firm are available to assist you 24 hours a day. For information on how to select a Tennessee DUI attorney, click here. For information about a Tennessee DUI charge, you may contact Steve Oberman or Sara Compher-Rice at (865) 249-7200.
Taking a Chemical Test May Cost You $250
Posted by Sara Compher-Rice in Chemical Tests, Tennessee DUI Consequences on June 18th, 2010
Tennessee law currently mandates a $100.00 fee be assessed to any person who submits to a breath, blood or urine test upon conviction of Driving Under the Influence (DUI), Vehicular Assault by Intoxication, Vehicular Homicide, or Aggravated Vehicular Homicide. As of July 1, 2010, the Tennessee Legislature has increased this fee, also known as the “blood alcohol or drug concentration fee” to $250.00. Public Chapter No. 1020 can be reviewed by clicking here.
If a person submits to a blood, breath, or urine test and registers above .08% (the legal limit for Driving Under the Influence in Tennessee), not only could this test result help to convict the person of Driving Under the Influence or one of the more serious offenses noted above, but the submission may ultimately cost the same person an extra $250.00 in addition to mandatory fines and other court costs.
These increased out of pocket costs related to a Tennessee Driving Under the Influence (DUI) conviction, make it even more imperative that anyone charged with the offense of DUI in Tennessee contact a lawyer who regularly handles DUI cases and is familiar with the issues related to chemical testing. If you have been charged with a DUI in Knoxville, Tennessee or elsewhere in the state of Tennessee, feel free to contact our office for more information by calling (865) 249-7200 or visit our website, www.tndui.com.
-
-
You are currently browsing the archives for the Chemical Tests category.
-
