published Wednesday, October 30th, 2013

Thousands of Tennessee DUI cases in jeopardy

Thousands of DUI results statewide could be in jeopardy after a TBI employee was fired this week for mishandling evidence.

Of the 2,800 cases handled by the former special agent, there are 323 cases in Hamilton County alone.

All samples obtained in the cases will be retested for blood-alcohol content. Based on those results, convictions could potentially be overturned or pending cases dismissed. The TBI said it plans to add an additional step to its testing process to ensure the same mistake doesn't happen in the future.

Former Special Agent Kyle Bayer was fired on Monday after an internal investigation revealed he mistakenly switched two blood alcohol samples in a vehicular homicide case in Hamilton County.

"All indications are that this was an isolated incident by an examiner who, despite extensive training, switched two adjacent blood samples at the onset of the analysis process and then failed to follow a number of procedural checkpoints which would have caught the error," writes Robert Daniel Royse, assistant director of TBI, in a letter dated Tuesday and obtained by the Times Free Press.

The case came to light after Chattanooga defense attorney Jerry Summers sent a client's blood sample off to a private lab, Aperian Lab Solutions, to cross-check the results.

Dale Edward Ferrell, who was charged with vehicular homicide and DUI, submitted a blood sample after a fatal car crash on March 16 resulted in the death of Knoxville architect Edward Bankston.

TBI results showed that Ferrell's blood alcohol came back at 0.24 -- three times the legal limit, which is 0.08.

Summers submitted the same sample to Aperian, which returned a result of .01.

As a result of the switched results, Ferrell's charges of DUI and vehicular homicide were dismissed by the Hamilton County District Attorney's Office.

Summers has 11 clients whose cases could potentially be affected depending on other evidence.

On Tuesday afternoon, the district attorney's office authorized the release of the names of 323 defendants potentially affected in Hamilton County along with their TBI test results to be distributed to the Chattanooga Criminal Defense Bar and Chattanooga Bar Association. Results ranged from zero to 0.40, according to the list.

TBI plans to send all of Bayer's cases to a private lab for retesting.

"I'm glad the TBI is diligently looking into this. Hopefully if there have been people convicted wrongfully, it will be corrected," Summers said Tuesday afternoon. "There may be several people who might be wrongfully convicted and that's not the way our justice system should work."

It's unclear how much the testing will cost and which lab has been selected. Efforts to reach TBI officials were unsuccessful.

Royse's letter states that TBI is hopeful the retesting results will be back by the end of February.

"But again, we have no control over certain aspects of the contracting procedure," he writes.

Royse's letter also stated that an extra step has been added to the lab process.

"As a corrective action, an additional procedural checkpoint by a second analyst was added to the blood alcohol methodology."

Contact staff writer Beth Burger at bburger@timesfreepress.com or 423-757-6406. Follow her on Twitter at twitter.com/abburger.

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