Approved bill seeks to fix $250 DUI testing fee found unconstitutional

A bill given final legislative approval last week and awaiting Gov. Bill Haslam’s signature will eliminate direct payment of a $250 fee for drug and alcohol blood tests to the Tennessee Bureau of investigation, a provision of current state law that the state Court of Appeals found unconstitutional last year. The money will now go to the state’s general fund.

The bill (HB1959, as amended) was approved unanimously with very little debate or discussion beyond the sponsors – Rep. William Lamberth (R-Cottontown) and Sen. John Stevens (R-Huntingdon) — explaining that it is intended to fix the legal problems found by the Court of Appeals decision.

Under current law, persons convicted of DUI pay a $250 fee that goes directly to TBI for the cost of a blood alcohol or drug concentration test. Those acquitted of the charges do not pay the fee.

“We cannot ignore that the TBI receives a fee for each conviction where a blood or breath test is performed but does not receive a fee if a defendant’s charges are dismissed or reduced or if the defendant is acquitted.

“Because the money from the $250 fee is placed directly in the intoxicant testing fund, which is ‘designated for exclusive use by the TBI,’ there is no question that the TBI, an agency of the state, has a direct [monetary] interest in securing convictions,” said the decision, which has been appealed to the state Supreme Court. (Previous post HERE.)

The bill simply says the fee money will go to the state’s general fund of tax dollars rather than the TBI. The legislature decides each year how to distribute general fund money to various state government departments and agencies, including the TBI, in the state budget. The amended bill’s fiscal note says enactment will mean increasing the state’s general fund revenue by $6.8 million per year while decreasing the amount going directly to TBI by the same amount. General fund money can then be sent to the TBI to cover the testing costs, , at least theoretically eliminating the direct conflict that the Court of Appeals declared unconstitutional.

Excerpt from a Times Free Press report in March on the Supreme Court agreeing to hear the case:

Because of that ruling, which stems from a 2012 DUI case in Chattanooga, many defense attorneys believe Tennessee courts can’t allow blood or breathalyzer testing into evidence in DUI cases as long as TBI’s crime lab continues to receive that fee. They say the fee serves as a conflict of interest that brings the testing results into question.

DUI cases are more challenging for prosecutors to win without blood tests in evidence. In addition to that, public confidence in DUI enforcement will erode with this ruling in place, according to Tennessee Assistant Solicitor General Jonathan Shaub, who appealed the ruling last month in a 21-page brief.

According to state Supreme Court’s order, arguments will take place May 31 in Nashville. Before that time, Shaub and Chattanooga attorney Jerry Summers can file additional arguments with the court.