published Saturday, February 1st, 2014

Attorneys seek to dismiss Hamilton County DUI cases

Motion to consolidate cases
Motion to consolidate cases
Motion to dismiss bloood testing evidence
Motion to dismiss bloood testing evidence

Two attorneys have filed motions seeking to dismiss blood testing evidence in 22 DUI cases, arguing that the Tennessee Bureau of Investigation has a financial conflict of interest.

The motion that raises constitutional questions was submitted Friday by Jerry Summers and Benjamin McGowan, attorneys with Summers and Wyatt. The motion argues that the state's law enforcement agency has an incentive to convict more people of drunken driving because state law mandates that anyone convicted of DUI pay a $250 fine.

The fee does not go into the state's general fund. Instead, it goes directly into the TBI's toxicology unit. The law states that the money will be used to fund forensic science positions, buy equipment, provide education and aid the unit by "allowing the bureau to operate in a more efficient and expeditious manner."

"In essence, a fee system which links, directly and inextricably, payment to TBI to the procurement of conviction violates fundamental fairness and substantive due process," the motion states. "This is not merely a question of bias or interest ... but rather infects the legitimacy of the toxicology evidence itself -- evidence upon which juries so heavily rely upon."

For the 2013 fiscal year, the state toxicology labs collected $2.9 million.

Just in Hamilton County, residents paid $42,076 in blood-alcohol fees to the toxicology unit. In 2013 through the end of November, a total of $79,050 had been paid, records show.

McGowan said in a telephone interview that the financial incentive creates an "obvious conflict of interest in the outcome of the case."

Another motion requests that all three of Hamilton County's Criminal Court judges hear arguments on the motions at one time in an effort to be more efficient.

This is not the first time that Summers has called into question results from the TBI toxicology unit or the unit has come under fire.

A total of 2,800 cases handled by the Toxicology Unit were called into question in October after a former special agent switched two blood alcohol samples in a vehicular homicide case in Hamilton County.

The agent returned results showing the suspect represented by Summers had a blood-alcohol level of 0.24, but the person's actual level was 0.01.

TBI fired the special agent handling the results and the agency is sending samples to a private lab, AIT laboratories, for retesting.

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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