Prosecutors scramble for “more time”, in hopes
for the Tennessee Supreme Court granting Certiorari and overruling a recent ruling of
the Court of Criminal Appeals Decision (Eastern Tennessee Division) in State of
TN vs. Rosemary Decosimo.
In a landmark case, causing anxiety from
Memphis to Johnson City, TN… The Court of Criminal Appeals has issued a ruling
in State vs. Decosimo declaring the Statute on DUI’s Blood Draw TennCodeAnn
section 55-10-413(f) “unconstitutional” in violation of the Due Process Clause
of the 14th Amendment.
There hasn’t been this much talk since the TBI
analyst was caught a few years ago tampering with blood samples. But this case explains “why” he would do that…
(a question I have always pondered upon).
There has been an administrative “fee” of $250
that has paid to the TBI on every blood draw in Tennessee (that leads to a conviction). If the DUI was Nolled, dismissed, Reduced, or
retired… then the fee was NOT owed (and NOT paid). The fee itself went “straight” to the TBI
crime lab, and was used for various upgrades, etc. It did not go to the General Fund. And the court declared that the process of charging a "fee" for convictions (in other words... charging a fee for cases that it is proven by the blood test that someone has a blood alcohol content of .08% or more) is one that cannot be "trusted". They, in a sense, found that the process was "tainted" and created "bias". (And one can see why when you realize it was
over 22 Million Dollard over a 12 year period). ... That ain't no Chump Change!
The state contends that any possible bias on
the part of the forensic scientists can be offset by procedural safeguards,
such as independent testing of samples, a thorough cross-examination of the
forensic scientist at trial, or a jury instruction addressing the credibility
of the TBI forensic scientists. (I have
even heard DA’s say they will just “not charge the fee”) in order to get around
the ruling.
But the Court of Criminal Appeals declined to
agree with the State’s Argument. They specifically said that “those safeguards”
fail to remedy the due process violations resulting from the fee system itself.
They went on to say that “because the
state has the duty to pursue truth and justice, it has an obligation to provide
an accurate, unbiased BAC result, not a result that is deemed correct until
disproved by the defendant.”
Thus… because TennCodeAnn 55-10-413 violates
the Due Process Clause of the Fourteenth Amendment and Article I, Section 8 of
the Tennessee Constitution, they remanded the case back to the trial court and
reversed the decision of the Trial Court (which had denied a Motion to Suppress
the blood).
If you have had your blood taken by the TBI Crime Lab, before you just "take a plea"... call me!
1-844-DUI-DAVE
David Ridings, Nashville DUI Attorney.
