                                                                                         02/06/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               October 10, 2017 Session

           STATE OF TENNESSEE v. ROSEMARY L. DECOSIMO

                Appeal from the Criminal Court for Hamilton County
                   No. 287934 Paul G. Summers, Senior Judge
                     ___________________________________

                           No. E2017-00696-CCA-R3-CD
                       ___________________________________

Defendant-Appellant Rosemary L. Decosimo entered a plea of nolo contendere to driving
under the influence per se and reserved a certified question regarding the trial court’s
denial of her motion to dismiss the indictment, or in the alternative, motion to suppress
the test results from her blood test. She argues on appeal that the trial court erred in
denying her motion on the basis that Tennessee Code Annotated section 55-10-413(f),
which gives the Tennessee Bureau of Investigation $250 for each DUI conviction that is
obtained using a blood or breath test, is unconstitutional. For the reasons that follow, we
agree with Decosimo and reverse the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jerry H. Summers, Benjamin McGowan, and Marya Schalk, Chattanooga, Tennessee, for
the appellant, Rosemary L. Decosimo.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; Matthew O’Brien,
Special Prosecutor Pro Tem; and Kate Lavery, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                       OPINION

       In May 2013, the Hamilton County Grand Jury indicted Decosimo with failure to
yield, driving without a license in her possession, failure to maintain her lane, driving
under the influence (DUI), and DUI per se. On January 31, 2014, Decosimo filed a
motion to dismiss the indictment, or in the alternative, to suppress the evidence from her
blood test, arguing that Code section 55-10-413 is unconstitutional because it creates a
fee system that violates the right to due process and a fair trial. Decosimo’s motion was
consolidated for the purpose of argument with the motions of over twenty similarly-
situated defendants who also had provided blood or breath samples to law enforcement,
and these motions were heard before the three Hamilton County Criminal Court Judges,
sitting en banc.

        Hearing on Motion to Dismiss, or in the Alternative, Motion to Suppress. At
the August 1, 2014 hearing on this consolidated motion, the defense argued that Code
section 55-10-413(f) violated the defendants’ right to due process and a fair trial.
Defense counsel suggested that the trial court had four options in ruling on this motion:
(1) the court could deny the motion; (2) the court could order that the jury be given an
instruction that the TBI has a financial interest in obtaining DUI convictions and that the
jury would determine the credibility of any breath or blood tests in light of this financial
interest; (3) the court could suppress and exclude the results from the blood or breath
tests; or (4) the court could dismiss the indictments in light of the egregiousness of the
constitutional violations.

      The parties then submitted the following written stipulations of fact for the
purposes of this hearing:

       1. The above named defendants as well as the defendants listed on Exhibit
       A attached hereto (hereinafter “Defendants”) are charged in the Hamilton
       County Criminal Court with driving under the influence (DUI), vehicular
       assault and/or vehicular homicide related to the operation of a motor
       vehicle while allegedly under the influence of an intoxicant.

       2. Each of the Defendants has filed a Motion to Dismiss: Blood Testing
       Evidence which raise[s] identical issues of law and the hearing of which
       has been consolidated for hearing before the three judges of the Hamilton
       County Criminal Court.

       3. Each of these Defendants provided, either voluntarily or involuntarily, a
       breath or blood sample to law enforcement in conjunction with their arrests.

       4. In the case of the blood samples, the Defendants’ blood was sent to the
       Tennessee Bureau of Investigation Forensic Services Division where it was
       tested for the presence and concentration of ethyl alcohol or other
       intoxicants.

       5. In the case of the breath samples, the Defendants provided a breath
       sample which was tested by a breath analysis machine, specifically model
                                           -2-
      EC/IR II, for the presence and concentration of ethyl alcohol. The breath
      analysis machines upon which this testing was performed are calibrated,
      maintained and certified by the Tennessee Bureau of Investigation.

      6. In addition to testing the blood samples and calibrating and certifying
      the breath analysis machines, agents of the Tennessee Bureau of
      Investigation (TBI) are regularly called as witnesses in court at pretrial
      hearings and trial to testify regarding the testing process, equipment, results
      of testing, and other matters relevant to the chemical analysis of the blood
      or breath evidence. In some cases, the actual written reports of the
      chemical testing are admitted into evidence at pretrial hearings and/or trial.

      7. Each of the Defendants, if convicted, will be subject to certain fees,
      specifically BADT and BAT fees, to be paid as part of their court costs.

      8. No BADT or BAT fees are charged where a case is dismissed, a not
      guilty verdict returned, or where a defendant pleads to a non-DUI related
      offense.

      9. By statute, these BADT and BAT fees are collected by the court clerk
      for the applicable court and are paid ultimately to the Tennessee Bureau of
      Investigation where they are used for all TBI agency operational costs as
      permitted by statute.

       Decosimo also admitted as an exhibit TBI Director Mark Gwyn’s February 11,
2014 testimony before the Senate Judiciary Committee. As a part of this testimony,
Director Gwyn referenced the TBI’s financial report from the Intoxicant Testing fund
where the $250 Blood Alcohol or Drug Concentration Test (BADT) fees are deposited,
which depicted the total amount of revenue from this fund and the total expenses for the
fiscal years of 2009-2012. He stated that in 2009, the TBI had revenues from the
intoxicant testing fund of approximately $999,000 and expenses of $750,000; in 2010,
the TBI had revenues from the fund of around $1,011,000 and expenses of $690,000; in
2011, the TBI had revenues from the fund of approximately $1,500,000 and expenses of
$1,400,000; and in 2012, the TBI had revenues from the fund of around $2,500,000 and
expenses of $1,500,000, which accounted for a total surplus for the years 2009-2012 of
approximately $1,600,000. Director Gwyn stated that this surplus was used for
“equipment, training” in the TBI. He added, “in 2008, we were faced with some pretty
deep cuts, cuts that would have at least caused us to do one of two things: [w]e would’ve
had to shut down some disciplines with our crime laboratory, or we would’ve had to start
charging local law enforcement for testing.” He explained that because neither of these
options were good, the TBI decided to increase the BADT fee on toxicology and blood
                                           -3-
alcohol testing to $250. The TBI’s financial report for the Intoxicant Testing was also
admitted as an exhibit at the hearing. This report, which was consistent with Director
Gwyn’s testimony regarding the revenues and expenses, stated that the revenue from the
Intoxicant Testing fund supports “TBI operating expenditures in all its divisions, which
include travel, training, supplies and equipment” and that “[i]n any given year, when
revenue exceeds expenditures, those [surplus] funds are reserved, as directed by
Tennessee Code Annotated.”

       Director Gwyn said there was no way to project how many of these BADT fees
would be collected or what types of expenses the TBI would have in a given year.
However, he said that by increasing this fee, the TBI was able to avoid “lay[ing] off
forensic scientists” and was able to avoid “pass[ing] that [fee] back onto local law
enforcement who could not pay it at the end of the day.”

       When Senator Todd Gardenhire asked if there might be an incentive for the TBI to
do extra testing to get additional money to pay for its expenses, Director Gwyn
responded, “Absolutely not. There’s no way to do any extra testing.” Senator
Gardenhire then noted that some of the senators on the committee had suggested that to
avoid the appearance of impropriety, the money from these fees should flow into the
general fund, and the TBI could request appropriations to cover its expenses, which
would remove the appearance that the fee was a “revenue-generator.” To this, Director
Gwyn replied:

            Yes. I mean, I think someone can say almost anything they want to
      say. You know, does a patrol officer out here calibrate his radar gun so it
      shows someone speeding at a higher rate of speed to write a ticket to
      generate revenue from tickets?

             I think we just have to let our testing stand on its own. There’s been
      plenty of trial and defense attorneys that have taken our toxicology and our
      blood alcohol exams, outsourced them to private laboratories.

             Unfortunately, we had one incident in the Chattanooga area where a
      young forensic scientist [Kyle Bayer] made a mistake. He paid for that
      mistake. He was dismissed. We’ve outsourced all of the cases that [Kyle
      Bayer] had worked. We have 2,000 of them back, and there’s been no
      other mistakes.

             So, obviously, we don’t want the appearance that we’re doing
      anything wrong. We’re an open book. We’re as transparent as it can be,

                                          -4-
      and we welcome anybody to come in and outsource any type of testing that
      they would like to see.

              We just felt like that, on a conviction, part of the court fee could go
      to this so that we would not have to bring it back on local law enforcement
      and hurt them in that way, with some of them not being able to fund [these
      tests]. This type of testing is very expensive.

            [The Intoxicant Testing Fund] was not meant to make [the] TBI rich.
      And, as you can see, with a million and something left over, that could be
      used up probably in about two instruments within the laboratory.

            So, but, at the will of whatever the legislature thinks, you know,
      obviously, I will abide by that. But, you know, and I guess that’s the best
      answer. I mean, we don’t want any negative cloud hanging over our head,
      obviously.

            But, I think, no matter sometimes what you do, it’s hard to—you
      know, you can be painted in a bad light no matter what you do.

            And we could have probably asked to have a fee placed on all testing
      whether they were convict[ed] or not convict[ed], but we didn’t think that
      was the way to go either.

             We just felt like that, if there was a conviction, it went through the
      court process, and that person, they had an attorney or whoever and they
      chose to take that sample and get it outsourced to check behind us, then that
      would take care of any need for any type of reason of why we would have
      wrongly accused someone[.]

Director Gwyn stated that in years’ past, when the TBI’s budget had been reduced, the
TBI “cut back on training, and we gave up positions where I was down to nothing but
agents left to cut and forensic scientists,” which he said affected the cases being worked
and the efficiency of the lab testing and could result in the “shut down of the court
system.” He added that one of the ways he had tried to alleviate the backlog for testing
was to see if there was a way “to generate some revenue internally” so that the TBI did
not “have to keep coming back . . . every year asking for appropriations, more and more
appropriations[.]”

       The defense also submitted, by stipulation, an exhibit containing testimony of
Director Gwyn that was made in lieu of a personal appearance at the motion hearing.
                                           -5-
Therein, Director Gwyn stated that the increase to $250 BADT fee was “necessary to
offset state budget cuts that would have severely hampered state law enforcement
efforts.” He acknowledged that in 2008-09, the actual cost to the TBI for a blood alcohol
test was $84 and for a toxicology test was $275 and that in the three years prior to the
increase in the BAT/BADT fee, the TBI charged a BADT fee of $100. Director Gwyn
said that if the BADT fee had not been increased from $100 to $250, eight Special
Agents positions and eight Special Agent/Forensic Scientists positions would have been
at risk for being eliminated. Director Gwyn acknowledged that AIT Laboratories1 was
charging the TBI a flat rate of $35 for ethyl alcohol testing in its retesting of a large batch
of TBI samples. However, he said this amount was “not comparable with the total
toxicological services provided by TBI” and “did not include any courtroom testimony.”
He also asserted that 35% to 40% of the samples submitted to the TBI for toxicological
analysis required a full drug screen in addition to the ethyl alcohol analysis. Director
Gwyn stated that the proceeds from the increased BADT fee were used to cover all TBI
operational costs, including retesting samples at AIT Laboratories, testing for drugs other
than alcohol, courtroom testimony, and travel and training for its forensic scientists.
Finally, he said that convictions could be based on a breath alcohol analysis, a blood
alcohol analysis, a drug screen, or a combination of testing and that the type of testing
performed was unrelated to the amount of the fee.

        The defense also submitted an exhibit containing documents from a case involving
Dale Ferrell, who had been charged with vehicular homicide and DUI. The documents
showed that the State filed a motion to dismiss the indictment against Ferrell after it
discovered that TBI Agent Kyle Bayer, a forensic scientist, had failed to follow TBI
protocol and had switched another defendant’s sample with Ferrell’s sample. As a result,
Agent Bayer’s TBI report showed that Ferrell had a blood alcohol concentration (BAC)
of .24%, when Ferrell’s actual blood alcohol concentration was .01%. After discovering
this error, the TBI had all samples tested by Agent Bayer retested by AIT Laboratories.
Additional records regarding the retesting of some of the blood samples originally tested
by Agent Bayer were admitted as an exhibit. For the majority of the samples, the
retesting showed a BAC that was the same or slightly higher than Agent Bayer’s test
result; however, for 43 out of the approximately 250 samples, the retesting showed a
slightly lower BAC than Agent Bayer’s test result.

       The defense also presented testimony from Raymond W. Fraley, an attorney in
Lincoln County, who stated that he had handled over 2000 DUI cases. Fraley said that
over the years, he noted that there was an increase in emphasis on blood and breath tests

       1
           AIT Laboratories is an independent lab that the TBI hired to retest blood samples after it
discovered that Agent Kyle Bayer, a forensic scientist, had inadvertently switched two samples when he
failed to follow TBI protocol.
                                                -6-
and that there were now crimes and penalties that were proved through a chemical test
result, like DUI per se for individuals with a BAC of 0.08% or increased jail time for
individuals with a BAC of 0.20% or more. Fraley said he did not always have blood
samples independently tested because in some cases, for example, when a defendant had
admitted to drinking several beers, retesting would not be helpful. He asserted that some
of the errors in TBI testing would escape notice because the test result, whether correct or
incorrect, would not necessarily be at odds with what the defendant disclosed to his
attorney, i.e., that he had some drinks prior to submitting to the blood or breath test. He
also said that judges and prosecutors relied heavily on the accuracy of the TBI’s test
results and that these test results influenced whether a defendant would fight the case,
which was very expensive, or enter a guilty plea.

       Fraley acknowledged that the $250 fee for independent testing of the sample was
“moderately inexpensive.” However, he said that in those cases where he gets a variance
from the TBI test results, he then files a motion to dismiss, for which he must charge his
client an additional legal fee. Fraley added that in cases he has to try in circuit or
criminal court, experts can cost his clients $15,000 to $40,000. As to the claim that any
TBI bias could be explored through cross-examination, Fraley countered that cross-
examination was not an appropriate safeguard because 85% of DUI cases settled prior to
trial.

       Fraley stated that he had his clients’ blood independently tested in less than 15%
to 20% of his cases and that in those cases, the independent test results had not differed
from the TBI test results. He stated that the TBI had recently started doing duplicate
testing of blood samples, which he believed was “good science.”

       Fraley said he was aware of a case in Marshall County, where Agent Kyle Bayer
had found that the sample had a BAC of 0.09% but an independent test of the sample
showed that it had a BAC was 0.07%. In addition, he was aware of a case in Maury
County, where Agent Bayer said the BAC was 0.21%, and the independent test of the
sample showed that it had a BAC of 0.17%. Fraley stated that in one of his own cases, he
took the deposition of Agent Bayer’s supervisor, Jeff Crews, who claimed that Agent
Bayer had made only one mistake with his test results, which was not true, in light of the
two aforementioned cases in Marshall County and Maury County. Fraley noted that the
information he received about the retests of the samples originally tested by Agent Bayer
came from the State’s experts or from practitioners that he knew and that there was no
committee overseeing the retests to determine if there were further inaccuracies. During
this hearing, the State made a continuing objection to all of Fraley’s testimony, with the
exception of his anecdotal experiences.



                                           -7-
       The defense also presented the testimony from Lloyd Levitt, an attorney in
Hamilton County, who testified that he had handled over 1000 DUI cases. Levitt stated
that the Official Alcohol Report from the TBI was “the driving factor in any DUI case”
and that the BAC results included in this report greatly influenced the prosecutor’s desire
to reduce the charge. Levitt said that since the 2012 change in the law making blood tests
mandatory if an impaired person killed or injured another person, there had been “a huge
increase in blood testing.” He stated that the TBI had gotten overwhelmed with the
increasing number of blood draws following the 2012 change in the law, which had
resulted in a four- to five-month delay in receiving the test results and sometimes a delay
of over a year if the samples were sent back for a retest. Levitt agreed that the increasing
number of blood draws meant that the TBI was receiving substantially more money from
the $250 BADT fees assessed for each conviction.

       At the conclusion of the hearing, the court heard arguments from defense counsel
and the State. Defense counsel noted that the fact that this $250 BADT fee went directly
to the TBI was an exception to the general rule in Tennessee that all revenue went into
the State’s general fund before being disbursed to the various state entities. He admitted
that there was no overwhelming evidence that the TBI was biased or was trying to
manipulate the blood test results in order to increase its chances of receiving the BADT
fee. However, he asserted that he did not have to show actual bias, only an appearance of
impropriety, in order to establish that the statute violates due process. He also said that
the fact that Code section 38-6-103(g) makes TBI test results prima facie admissible in
any judicial or quasi-judicial proceeding only further enhances the appearance of
impropriety. Defense counsel said it was very difficult to defend DUI cases because 85%
percent of defendants, when faced with the TBI test results, pled guilty rather than hiring
an expert to contest the TBI’s test results. He also noted that the experts who were
available to most defendants worked for the TBI, and these experts had a financial
incentive to convict in order for the TBI to collect the BADT fee. Defense counsel
asserted that just as it would be unconstitutional for trial judges to receive a $250 fee for
each conviction, it was also wrong for the TBI to receive a $250 bounty for convicting
individuals.

        Finally, as to the independent retests in the wake of discovery of Agent Bayer’s
error, defense counsel acknowledged that most of the 2800 samples that were retested did
not have a large variance; however, he asserted that several of the retested samples
showed a BAC that was lower than Agent Bayer’s results. Defense counsel said that he
was not arguing that the TBI falsified BAC test results but was contending that the $250
fee violated the defendants’ right to due process because it created the appearance of
impropriety and the potential for abuse based upon financial interest.



                                            -8-
        In response, the State argued that due process was not violated by the collection of
fines and that the only way the defense could succeed in its motion was if it showed that
the TBI forensic scientists were falsifying test results in order to obtain this $250 BADT
fee for each conviction.

       Before the trial court entered an order regarding this motion, the defense
supplemented the record with the TBI’s summary of Agent Kyle Bayer’s blood alcohol
tests and the AIT Laboratory’s retests of these samples, which the defense received in
response to its Open Records Act request. In a cover letter that was part of this response,
TBI Assistant Director Robert Daniel Royse made the following statements:

              On October 3, 2013[,] TBI was notified of a discrepancy in blood
       alcohol testing results. Both an independent and an internal reanalysis of
       the data associated with these samples indicate that Kyle Bayer
       inadvertently switched two blood tubes at the time of analysis. While all
       indications were that this was an isolated incident, confidence in the results
       issued by our Laboratory is of paramount importance to the TBI.
       Therefore, arrangements were made for an independent laboratory to
       reanalyze every positive Blood Alcohol Analysis performed by this
       examiner. Through the State of Tennessee’s competitive bidding process
       AIT Laboratories was awarded the contract for retesting, which totaled
       2,827 samples.

              The scope of this independent laboratory retesting was to determine
       if any samples had been switched by Kyle Bayer. Review of these 2,827
       retested samples indicates that in all other cases the correct blood sample
       was originally analyzed by TBI. Some variation should be expected
       between any two scientific measurements. When comparing the retested
       data one must consider that ethyl alcohol is a volatile compound and many
       factors such as sample age, volume of sample available for retesting,
       sample condition, and the number of times the blood tube has been opened
       may influence the results. Additionally, it must be noted that the supplied
       TBI result is the lower of two analyses and has been truncated from four
       decimal points supplied by the analytical instrument down to two decimal
       places for reporting purposes; therefore[,] any statistical comparison
       between truncated and non-truncated data may be problematic.

             The enclosed data lists the first and second retest as performed by
       AIT Laboratories, the average of the AIT Laboratories’ retested data, and
       for comparison the original TBI result as reported. Any identifying

                                           -9-
      information, e.g. subjects’ names and laboratory case numbers, has been
      redacted to protect the privacy of those individuals.

The summary of Agent Kyle Bayer’s blood alcohol tests and the AIT Laboratory’s retests
showed that in some cases the retested samples had a BAC that was lower than Agent
Bayer’s results, which meant that the 0.08% and 0.20% thresholds for DUI per se and
enhanced DUI punishment were not met on retest.

       Denial of Motion to Dismiss, or in the Alternative, Motion to Suppress. On
December 11, 2014, the three Hamilton County Criminal Court Judges, sitting en banc,
entered an order denying the motion but granting the defense’s request for a jury
instruction. In this order, the trial court made the following findings of fact and
conclusions of law:

      [W]hat the Court must determine is whether the statute in issue creates such
      pressure on TBI forensic scientists and expert witnesses that admission of
      their evidence deprives defendants of due process or a fair trial.

              The statutory financial interest is not negligible. It is true that, in
      any one case, the interest is small. Were there no statute, i.e., were there no
      reason to consider more than one case at a time, thorough cross-
      examination and jury instruction would suffice to preserve a defendant’s
      rights to due process and a fair trial.

             The statute, however, not only creates a contingent-fee system, like
      the one in Brown [v. Edwards, 721 F.2d 1442 (5th Cir. 1984)]; it creates a
                                                                       -
      contingent-fee-dependent system. In the aggregate of cases, the financial
      interest is very large. The statutory fees fund laboratory positions,
      equipment, professional development, and more.

             Arguably, the statutory, contingent-fee dependent system encourages
      both personal and institutional bias in scientific work much of the value of
      which even the state recognizes depends on the lack of influence on the
      scientist. Apparently, too, such a system is unnecessary, the state not
      disputing the existence of acceptable alternatives. Furthermore, that the
      parties do not cite and the Court does not find any precedent for giving
      forensic scientists and laboratories a statutory financial interest in DUI
      convictions suggests that other states, who, presumably, share this state’s
      legitimate goal of discouraging DUI in part by making offenders
      responsible for laboratory costs, do not regard such an interest as fair.

                                          - 10 -
              Despite the magnitude of the aggregate financial interest, however,
       the Court concludes that it does not necessitate the exclusion of the results
       of breath or blood tests. Presumably, it is impossible to calibrate breath-test
       machines to overstate any positive result. Thus, no financial interest on the
       calibrator’s part can affect the results of breath tests.

              As for blood tests, presumably, despite the evidence of
       acknowledged and unacknowledged errors in blood tests, it is impossible to
       calibrate blood-test machines to overstate any positive result. The sole
       acknowledged error in the record was a transposition error; perhaps the
       unacknowledged errors in the record lie within the margin of error.
       Presumably, too, despite the statement in the reports in the record that
       “[t]he above represents the interpretations and opinions of the analyst[,”]
       blood tests are subject to minimal, if any, interpretation or opinion.

              Although deliberate falsifications attributable to financial interest
       remain a possibility, presumably, what protects defendants from accidental
       transposition errors also protects them from deliberate falsifications: the
       availability of independent analysis of blood, at state expense in appropriate
       cases, and the availability of underlying “technical notes and data” that,
       according to a statement in the reports in the record, the laboratory
       maintains in its case records. Thus, the financial interest in obtaining DUI
       convictions is offset by financial and other interests in continuing to have
       employment and avoiding criminal liability, making the possibility of a
       deliberate falsification attributable to financial interest remote without
       necessarily changing defendants’ calculations regarding the advisability of
       independent analysis.

        Denial of Application for Interlocutory Appeal. Following entry of the
December 11, 2014 order, Decosimo and the other defendants filed a consolidated motion
for an interlocutory appeal, which the trial court granted. Thereafter, this court denied
the defendants’ application for an interlocutory appeal, and the Tennessee Supreme Court
denied the defendants’ application to appeal from this court’s order of denial. The State
also filed a motion for an interlocutory appeal regarding the trial court’s decision to grant
a jury instruction regarding the $250 BADT fee, but this motion was dismissed by the
trial court on the grounds that the motion was untimely, that another hearing on the
State’s motion would subject the defendants to additional and unnecessary burden and
expense, and that the State could file an extraordinary appeal pursuant to Rule 10 of the
Tennessee Rules of Appellate Procedure. Following the denial of the interlocutory
appeal, the trial judge assigned to Decosimo’s case recused himself from the case, and the
case was reassigned to a special judge.
                                           - 11 -
       September 27, 2016 Hearing. At a hearing on September 27, 2016, Decosimo
made an oral motion for the special judge to reconsider the previous ruling made by the
three criminal court judges, sitting en banc, regarding her motion to dismiss, or in the
alternative, motion to suppress. Although the special judge denied this motion, he did
allow information from the TBI’s March 3, 2015 Budget Hearing before the Senate
Judiciary Committee2 as well as new financial information from the Tennessee
Department of Revenue regarding the BADT fees collected on convictions for vehicular
assault, vehicular homicide, aggravated vehicular homicide, simple possession or casual
exchange of a controlled substance, reckless driving, and DUI to be made exhibits to this
hearing.

       Plea Submission Hearing. At the March 8, 2017 plea submission hearing,
Decosimo reiterated her assertion that Code section 55-10-413(f) was unconstitutional,
and the trial court heard additional argument regarding the defense’s request that the trial
court reconsider its previous ruling on the motion to dismiss, or in the alternative, motion
to suppress. During the course of this hearing, the trial court commented that Decosimo’s
argument regarding the unconstitutionality of the statute rested on her showing that the
TBI had manipulated the test results in order to obtain convictions. When the trial court
asserted its belief that the $250 BADT fee was no different from any other court cost
assessed following a conviction, defense counsel replied that the BADT fee to the TBI
was different because it went directly into the TBI special fund, over which the TBI has
total control, rather than State of Tennessee’s general fund. The trial court also asserted
that because the district attorney had the authority to determine whether an individual is
charged, a buffer existed between the citizen and the TBI, even though the TBI had a
financial interest in obtaining convictions, and defense counsel replied that DUI
prosecutors might have an interest in obtaining convictions based upon how their salaries
were funded. During the course of the plea submission hearing, the trial court allowed
new financial information regarding the money obtained by the TBI from BADT fees to
be entered as a supplemental exhibit pursuant to an agreement between the parties.3

       2
           During the March 3, 2015 Budget Hearing, Senator Gardenhire said he had reviewed TBI’s
report, which stated that the State made approximately 29,554 DUI arrests, with an 89% conviction rate,
and that defendants who were convicted of DUI paid a fee of $250 to the TBI. Senator Gardenhire made
the statement that with an 89% conviction rate, this would mean that the TBI received over $6,000,000
each year from these fees. He then questioned why the TBI only reported earning $3,000,000 from these
fees. Ed Jones, the Deputy Director of the TBI responded that this disparity could be caused by the
difference between the time of arrest and the time of adjudication, and Director Gwyn added that the TBI
had never received $6,000,000 in any given year from this fee.
         3
           This supplemental exhibit included the Department of Revenue’s responses to the defense’s
public records request for the total amounts collected from the $250 BADT fee imposed by Code section
55-10-413(f) as well as the following table, which corresponded to the Department of Revenue’s more
detailed response that listed the BADT fee collections for each county:

                                                - 12 -
After hearing the parties’ arguments and reviewing this new financial information
regarding BADT fee collections, the special judge found that the statute was not
unconstitutional and denied the motion to dismiss, or in the alternative, motion to
suppress.

       At that point, the parties moved on to Decosimo’s plea submission hearing. The
State recited the facts underlying the plea, explaining that Decosimo had been stopped by
law enforcement and had submitted to a blood test, which showed her BAC to be 0.16%.
Decosimo then entered a nolo contendere plea to DUI per se, reserving a certified
question of law, and the State entered a nolle prosequi as to her remaining charges.
Pursuant to her plea agreement, Decosimo reserved the following certified question of
law:

      Whether the trial court erred in not dismissing this case, or alternatively,
      suppressing the blood alcohol evidence without which the State could not
      proceed against [Decosimo] on this DUI per se conviction, where T.C.A. §
      55-10-413(f) is unconstitutional in violation of due process and right to a
      fair trial under the Fifth, Sixth, and Fourteenth Amendments of the United
      States Constitution and under article I, sections 8 and 9 of the Tennessee
      Constitution based on the fact that the Tennessee Bureau of Investigation
      (TBI) receives a $250 BADT/BAT fee in every case in which a conviction
      is obtained for driving under the influence or other listed offense, wherein a
      TBI blood test or TBI-calibrated breath test result is used, thereby creating
      a “contingent-fee-dependent system” susceptible to bias because the TBI’s
      testing and interpretation of these tests play the determinative role in the
      prosecution or the charge, and a jury instruction regarding the statutory


                   Year                                     BADT Collection
                   2005                                       $138,437.90
                   2006                                       $794,822.83
                   2007                                      $1,011,324.52
                   2008                                      $1,019,760.76
                   2009                                       $970,221.02
                   2010                                       $989,049.49
                   2011                                      $2,018,651.25
                   2012                                      $2,655,556.39
                   2013                                      $3,005,840.02
                   2014                                      $3,145,794.60
                   2015                                      $3,306,940.32
                   2016                                      $3,003,571.80
                  TOTAL                                      $22,059,970.90

                                          - 13 -
       incentive in favor of conviction is insufficient to cure the magnitude of the
       constitutional violation?

Both the judgment for Decosimo’s DUI per se conviction and the agreed order on the
certified question were filed on March 8, 2017. On March 30, 2017, Decosimo filed a
timely notice of appeal.

                                        ANALYSIS

        Decosimo argues that because Tennessee Code Annotated section 55-10-413(f),
which gives the TBI $250 for each DUI conviction that is obtained using a blood or
breath test, is unconstitutional, the trial court erred in denying her motion to dismiss, or in
the alternative, motion to suppress on that basis. Decosimo specifically asserts that Code
section 55-10-413(f) violates her right to due process and a fair trial because it creates a
“contingent-fee-dependent system” that gives the TBI and its forensic scientists a
financial incentive to ensure convictions. The State counters that the trial court properly
denied Decosimo’s motion because Code section 55-10-413(f) is constitutional. After
reviewing the record in this case, we conclude that Code section 55-10-413(f) violates
due process principles and that the trial court erred in failing to grant the motion to
suppress.

       At the time of Decosimo’s arrest, Code section 55-10-419 (2012), which imposed
a $250 BADT fee for blood and breath tests and required the deposit of this fee into the
TBI’s toxicology unit intoxicant testing fund, provided:

       (a)(1) In addition to all other fines, fees, costs and punishments now
       prescribed by law, including the fee imposed pursuant to § 55-10-403(h), a
                                                                                      -
       blood alcohol or drug concentration test (BADT) fee in the amount of two
       hundred and fifty dollars ($250) shall be assessed upon a conviction for a
       violation of § 39-13-106, § 39-13-213(a)(2), § 39-13-218, § 39-17-418, §
       55-10-205 or § 55-10-401, 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.

       (2) In addition to all other fines, fees, costs and punishments now
       prescribed by law, including the fee imposed pursuant to § 55-10-403(h), a
       blood alcohol or drug concentration test (BADT) fee in the amount of one
       hundred dollars ($100) shall be assessed upon conviction for a violation of
       § 39-13-106, § 39-13-213(a)(2), § 39-13-218 or § 55-10-401, if the blood
                                            - 14 -
or urine of the convicted person was analyzed by a publicly funded forensic
laboratory or other forensic laboratory operated by and located in counties
having a population of not less than eighty-seven thousand nine hundred
(87,900) nor more than eighty-eight thousand (88,000), according to the
2000 federal census or any subsequent federal census, for the purpose of
determining the alcohol or drug content of the blood.

(b)(1) The fee authorized in subdivision (a)(1) shall be collected by the
clerks of the various courts of the counties and forwarded to the state
treasurer on a monthly basis for deposit in the Tennessee [B]ureau of
[I]nvestigation (TBI) toxicology unit intoxicant testing fund created as
provided in subsection (c), and designated for exclusive use by the TBI for
the purposes set out in subsection (c).

(2) The fee authorized in subdivision (a)(2) shall be collected by the clerks
of the various courts of the counties and shall be forwarded to the county
trustees of those counties on a monthly basis and designated for the
exclusive use of the publicly funded forensic laboratory in those counties.

(c)(1) There is created a fund within the treasury of the state, to be known
as the TBI toxicology unit intoxicant testing fund.

(2) Moneys shall be deposited to the fund pursuant to subsection (b), and as
may be otherwise provided by law, and shall be invested pursuant to § 9-4-
603. Moneys in the fund shall not revert to the general fund of the state,
but shall remain available for appropriation to the Tennessee bureau of
investigation, as determined by the general assembly.

(3) Moneys in the TBI toxicology unit intoxicant testing fund and available
federal funds, to the extent permitted by federal law and regulation, shall be
used to fund a forensic scientist position in each of the three (3) bureau
crime laboratories, to employ forensic scientists to fill these positions, and
to 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. To
the extent that additional funds are available, these funds shall be used 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.

                                    - 15 -
T.C.A. § 55-10-419 (2012) (emphases added).4

      In 2005, the legislature first introduced a $100 fee for blood and breath tests. See
T.C.A. § 55-10-419 (2005) (identifying the fee as a blood alcohol concentration test
(BAT) fee); 2005 Tenn. Pub. Acts, ch. 483, § 7; see also T.C.A. § 55-10-419 (2006);
2006 Tenn. Pub. Acts, ch. 998, § 2 (identifying the fee as a blood alcohol or drug
concentration test (BADT) fee rather than a blood alcohol concentration test (BAT) fee).
In 2010, the legislature, based on a proposal from the TBI, raised the BADT fee to $250.
See T.C.A. § 55-10-419 (2010); 2010 Tenn. Pub. Acts, ch. 1020, §§ 1, 2.

       TBI Director Gwyn, in his testimony before the Senate Judiciary Committee on
February 11, 2014, explained that in 2008 the TBI was “faced with some pretty deep
cuts” that would have required the TBI to “shut down some disciplines with our crime
laboratory” or to “start charging local law enforcement for testing.” He said that in order
to avoid either of those alternatives, the legislature “increase[d] the fee on the toxicology
testing and blood alcohol testing.” He added that by increasing the fee, the TBI was able
to avoid “lay[ing] off forensic scientists.” Despite the fact that the BADT fee was raised
to $250 to cover the TBI’s budget deficits, Director Gwyn acknowledged that between
the years of 2009 and 2012, the TBI’s toxicology unit intoxicant testing fund netted a
surplus of approximately $1,600,000. The record is silent as to the how the surplus was
used.

        Both the version of the statute that was in effect at the time of Decosimo’s arrest
and the current version of Code section 55-10-413(f) state that the money from the $250
BADT fee shall be deposited in the TBI toxicology unit intoxicant testing fund “for
exclusive use by the TBI” and shall be used to “fund a forensic scientist position in each
of the three (3) bureau crime laboratories, to employ forensic scientists to fill these
positions, and to 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. §§ 55-10-419(b)(1),
(c)(3) (2012); 55-10-413(f)(2), (f)(3)(B) (2017). Moreover, any surplus in the intoxicant
testing fund shall be used 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.”
Id. §§ 55-10-419(c)(3) (2012), 55-10-413(f)(3)(B) (2017).



        4
          On July 1, 2013, this section of the code was transferred from Code section 55-10-419 to Code
section 55-10-413. In 2016 and 2017, the legislature made minor amendments to Code section 55-10-
413, although the provisions regarding the $250 BADT fee for blood and breath tests and its deposit into
the TBI toxicology unit intoxicant testing fund remained the same.
                                                - 16 -
        Historically, fee system courts have been condemned because judges should not
have a direct or indirect pecuniary interest in the litigation before them. See Dr.
Bonham’s Case, 77 Eng. Rep. 638 (C.P. 1610) (holding that “no person may be a judge
in his own cause” and that “when an act of parliament is against common right or reason,
or repugnant, or impossible to be performed, the common law will control it, and adjudge
such Act to be void”); see also Theodore F.T. Plucknett, Bonham’s Case and Judicial
Review, 40 Harv. L. Rev. 30, 34 (1926) (discussing Chief Justice, Sir Edward Coke’s
holding in Dr. Bonham’s case that no man should be a judge in his own case). The
general rule is that “officers acting in a judicial or quasi[-]judicial capacity are
disqualified by their interest in the controversy to be decided.” Tumey v. Ohio, 273 U.S.
510, 522 (1927) (internal citations omitted).

      It is also well-established that fines and fees should not be used to generate
revenue for a court or government agency. In 1974, the American Bar Association
adopted certain standards regarding court policies and rules. See Brown v. Vance, 637
F.2d 272, 277 (5th Cir. 1981). Section 1.53 of these standards provided the following:

       “1.53 Revenues from Fines. The purpose of fines and other exactions
       imposed through judicial proceedings is to enforce the law and not to
       provide financial support for the courts or other agencies of government.
       All revenues from fines, penalties, and forfeitures levied by a court should
       be transferred to the state general fund, and should not be appropriated to
       the court receiving them or by a local unit of government that supports such
       a court.”

Id. (emphasis added) (quoting ABA Comm. Standards of Judicial Administration 107
(1974)). While Section 1.53 specifically identifies “fines and other exactions,” the
commentary for this section clarifies that this standard also applies to fees. Id. n.6 (citing
ABA Comm. Standards of Judicial Administration 107 (1974)). Specifically, the
commentary states:

       “The use of courts as revenue-producing agencies is a continuing abuse of
       the judicial process. It has long been recognized as unconstitutional for a
       judge to have his income dependent on the outcome of cases before him,
       but a similar result often occurs indirectly when the budget of the court in
       which he sits is established with reference in whole or in part to the fine
       revenues produced by the court. This is at present a common practice in
       local courts of limited jurisdiction. It should be eliminated. See Ward v.
       Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972),
       Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927).”

                                            - 17 -
Id. (emphasis added) (quoting ABA Comm. Standards of Judicial Administration 107
(1974)).

       The concept that a judge, or other individual serving in an adjudicatory capacity,
should not have a pecuniary interest in the outcome of a case has been comprehensively
developed in case law. In support of her constitutional claim, Decosimo relies, in part, on
Tumey, Ward, and Connally, the trilogy of Supreme Court cases governing bias of a
judge or adjudicator based on a pecuniary interest in the controversy. We will address
each case in turn. In Tumey, 273 U.S. at 514-15, the United States Supreme Court
considered whether a state statute that allowed charges for violating the Prohibition Act
to be tried without a jury before the village mayor, who had a pecuniary interest in the
case, violated the Fourteenth Amendment. The mayor, who had primarily executive
duties, was paid a salary but was also compensated for his duties as a judge directly from
fees or costs that were assessed against convicted defendants. Id. at 519-20. In addition,
the fines from the mayor’s court provided substantial funds that were used for village
improvements and repairs, for which the mayor indirectly benefitted as an owner of a
house in the village. Id. at 521. The Court held, “But it certainly violates the Fourteenth
Amendment and deprives a defendant in a criminal case of due process of law to subject
his liberty or property to the judgment of a court, the judge of which has a direct,
personal, substantial pecuniary interest in reaching a conclusion against him in his case.”
Id. The Court then outlined the test for determining whether a fee system violated due
process:

      Every procedure which would offer a possible temptation to the average
      man as a judge to forget the burden of proof required to convict the
      defendant, or which might lead him not to hold the balance nice, clear and
      true between the state and the accused denies the latter due process of law.

Id. The Court also concluded that aside from the mayor’s direct, pecuniary interest in
convicting defendants, due process was also violated because of the close relationship
between the fees collected in the mayor’s court, which helped to relieve the village from
further taxation, and the mayor’s responsibility for the finances of the village:

      The mayor represents the village and cannot escape his representative
      capacity. On the other hand, he is given the judicial duty, first, of
      determining whether the defendant is guilty at all; and, second, having
      found his guilt, to measure his punishment between $100 as a minimum
      and $1,000 as a maximum for first offenses, and $300 as a minimum and
      $2,000 as a maximum for second offenses. With his interest as mayor in
      the financial condition of the village and his responsibility therefor, might
      not a defendant with reason say that he feared he could not get a fair trial or
                                          - 18 -
       a fair sentence from one who would have so strong a motive to help his
       village by conviction and a heavy fine? The old English cases cited above
       in the days of Coke and Holt and Mansfield are not nearly so strong. A
       situation in which an official perforce occupies two practically and
       seriously inconsistent positions, one partisan and the other judicial,
       necessarily involves a lack of due process of law in the trial of defendants
       charged with crimes before him.

Id. at 533-34 (citations omitted).

       In Ward v. Village of Monroeville, 409 U.S. 57 (1972), the United States Supreme
Court rejected certain procedural safeguards as a way to circumvent Tumey. In Ward,
the mayor of Monroeville had broad executive duties because he was president of the
village council and accounted annually to the council regarding the village’s finances;
however, the mayor also had judicial duties because he presided over a mayor’s court that
handled ordinance violations and specific traffic offenses. Id. at 57-58. While the mayor
had no direct, pecuniary interest in the outcome of his cases, a substantial portion of the
village’s income came from the fines, forfeitures, costs and fees assessed against
convicted criminal defendants in the mayor’s court. Id. at 58. The Court, reiterating the
Tumey standard, held that “the test is whether the mayor’s situation is one ‘which would
offer a possible temptation to the average man as a judge to forget the burden of proof
required to convict the defendant, or which might lead him not to hold the balance nice,
clear and true between the State and the accused . . . .’” Id. at 60 (quoting Tumey, 273
U.S. at 532). The Court specifically noted that a “‘possible temptation’” could occur
“when the mayor’s executive responsibilities for village finances may make him partisan
to maintain the high level of contribution from the mayor’s court.” Id.

        Next, in Connally v. Georgia, 429 U.S. 245 (1977), the United States Supreme
Court considered whether a fee system that governed the issuance of search warrants by
justices of the peace was constitutional. In that case, the justice of the peace did not
receive a salary, and he was only compensated by receipt of a $5 fee fixed by statute
when he issued a warrant but was not paid when he declined to issue a warrant. Id. at
246-47. The appellant in that case argued that marijuana found pursuant to the search
warrant should be suppressed because the justice of the peace who issued the warrant was
not a neutral and detached magistrate, given his pecuniary interest in issuing the warrant.
Id. at 246. The trial court denied the motion, and the Supreme Court of Georgia affirmed
the trial court. Id. On appeal, the United States Supreme Court recognized that the facts
in Connally varied from those in Tumey or Ward but nevertheless applied the Tumey-
Ward test to the issuance of warrants by justices of the peace. Id. at 250. The Court
noted that the justice’s financial welfare was “enhanced by positive action and [was] not
enhanced by negative action,” which created the possible temptation to an average man
                                          - 19 -
as a judge “‘not to hold the balance nice, clear and true between the State and the
accused.’” Id. (quoting Ward, 409 U.S. at 60). Consequently, the Court held that the fee
system governing the issuance of search warrants by justices of the peace violated the
Fourth and Fourteenth Amendments. Id. at 251.

        In the present case, Decosimo argues that Code section 55-10-413(f) is
unconstitutional. We recognize that issues of constitutional interpretation are questions
of law, which this court reviews de novo with no presumption of correctness. State v.
Merriman, 410 S.W.3d 779, 791 (Tenn. 2013); State v. White, 362 S.W.3d 559, 565
(Tenn. 2012) (citing Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn.
2008)). “In construing legislative enactments, we presume that every word in a statute
has meaning and purpose; each word should be given full effect if the obvious intention
of the General Assembly is not violated by so doing.” Lawrence Cnty. Educ. Ass’n v.
Lawrence Cnty. Bd. of Educ., 244 S.W.3d 302, 309 (Tenn. 2007) (citing In re C.K.G.,
173 S.W.3d 714, 722 (Tenn. 2005)). “When the statutory language is clear and
unambiguous, we must apply its plain meaning in its normal and accepted use, without a
forced interpretation that would limit or expand the statute’s application.” Eastman
Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). On the other hand, if the
statute is ambiguous, we must look to the “broader statutory scheme, the history of the
legislation, or other sources to discern its meaning.” State v. Casper, 297 S.W.3d 676,
683 (Tenn. 2009). Moreover, we must presume that a statute is constitutional. White,
362 S.W.3d at 566 (citing State v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007)). This
court has a “‘duty to adopt a construction which will sustain a statute and avoid
constitutional conflict if any reasonable construction exists that satisfies the requirements
of the Constitution.’” State v. Burgins, 464 S.W.3d 298, 305 (Tenn. 2015) (quoting
Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 529 (Tenn. 1993)).
Because the statutory language in Code section 55-10-413(f) is clear and unambiguous,
we must apply the plain meaning of the words used.

       Decosimo argues initially that the fee system established in Code section 55-10-
413(f) denies due process and a fair trial in part because it fails to ensure a blood or
breath test free from bias under the Tumey-Ward test. The State responds that the
Tumey-Ward test is inapplicable because the TBI does not perform judicial functions in
criminal cases. It contends that TBI forensic scientists are experts, not judges, and are
therefore not required to be neutral. See Tenn. R. Evid. 702. It also contends that the
TBI forensic scientists are salaried employees, and that even if their salaries are paid
from the funds generated by BADT fees, this connection is too remote to constitute a due
process violation. Based on the following law and analysis, we are unable to conclude
that TBI forensic scientists perform adjudicatory functions.



                                           - 20 -
        In order to fully examine this issue and based on the extensive record developed in
the trial court, we recognize that in the vast majority of prosecutions for DUI, vehicular
assault, vehicular homicide, etc., the BAC test result provided by the TBI forensic
scientists is the most significant piece of evidence against the defendant. This BAC
result determines whether the defendant is found guilty of DUI per se under Code section
55-10-401(2) or is subject to enhanced jail time pursuant to Code section 55-10-
402(a)(1)(B), affects the defendant’s decision to pursue a trial or enter a guilty plea, and
provides persuasive evidence to a judge or jury regarding whether a defendant was
impaired. See State v. Livesay, 941 S.W.2d 63, 64 (Tenn. Crim. App. 1996) (“It is
difficult to overstate the importance of evidence of blood alcohol content in DUI
prosecutions.”). In particular, the DUI per se law, which makes it a crime for an
individual to have a BAC of 0.08% while operating an automobile, removes the State’s
burden of proving that a defendant was driving while impaired and creates a strict
liability offense that, in the overwhelming majority of cases, is based solely on the
finding of the TBI forensic scientist regarding the defendant’s BAC. See T.C.A. § 55-10-
401(2). What is more, the TBI’s BAC results are “prima facie admissible into evidence
in any judicial or quasi-judicial proceeding” so long as the tests are performed in
compliance with the standards and procedures established by the TBI. See id. § 38-6-
103(g). We agree with Decosimo that as a practical matter, the blood samples collected
from defendants travel first to the TBI forensic scientists before they are eventually
released, at a time determined by the TBI, to the defense for independent testing,
assuming that a court order is obtained before the samples are destroyed. We also agree
that in most cases, the TBI’s Official Alcohol Report will induce a defendant to enter a
guilty plea unless BAC result appears scientifically impossible or is completely at odds
with the defendant’s claim regarding the amount of alcohol consumed. Not surprisingly,
because so few blood or breath samples are ever independently tested, TBI forensic
scientists typically provide the only proof regarding a defendant’s blood alcohol content.
Indigent defendants charged with DUI are particularly affected by this reality because
they cannot afford to independently test their blood or breath sample, much less hire an
expensive expert to challenge the BAC result at trial, and are unlikely to be given state
funds to cover these expenses in a misdemeanor prosecution.

       Given the clearly dispositive nature of the BAC test results in criminal
prosecutions, it is indeed a close question as to whether TBI forensic scientists do, in fact,
perform adjudicatory functions. However, Decosimo has not provided, and we have not
found, any authority in which a forensic examiner has been included in the definition of a
judge or an administrative adjudicator as contemplated by Tumey-Ward. We derive
some guidance, however, from Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) (holding
generally that the Tumey-Ward restrictions on decision-makers do not apply to those
engaged in prosecution of administrative cases). In Marshall v. Jerrico, Inc., an assistant
regional administrator imposed a substantial fine on the appellee for a child labor
                                            - 21 -
violation. The appellee, relying on Tumey and its progeny, claimed that the rule against
bias was violated by a section of the Fair Labor Standards Act which provided money
collected as civil penalties for employment of child labor must be returned to the
Department of Labor as reimbursement for amounts expended in determining the
violation. In holding that the financial interest bar was not applicable to determinations
of the assistant regional administrators, the Supreme Court stated:

       The assistant regional administrator simply cannot be equated with the kind
       of decisionmakers to which the principles of Tumey and Ward have been
       held applicable. He is not a judge. He performs no judicial or quasi-judicial
       functions. He hears no witnesses and rules on no disputed factual or legal
       questions. The function of assessing a violation is akin to that of a
       prosecutor or civil plaintiff. . . .

       The rigid requirements of Tumey and Ward, designed for officials
       performing judicial or quasi-judicial functions, are not applicable to those
       acting in a prosecutorial or plaintiff-like capacity. Our legal system has
       traditionally accorded wide discretion to criminal prosecutors in the
       enforcement process, and similar considerations have been found applicable
       to administrative prosecutors as well[.]

Marshall v. Jerrico, (internal citations omitted).

       Moreover, a forensic scientist typically serves as an expert witness subject to Rule
702 of the Tennessee Rules of Evidence.5 She performs no judicial or quasi-judicial
functions, hears no witnesses, and rules on no disputed factual or legal questions. We
therefore agree with the State and hold that Tumey-Ward is inapplicable to this issue.

       Our analysis however does not end here. Both the United States Constitution and
the Tennessee Constitution protect the right to due process of law. Section 1 of the
Fourteenth Amendment to the United States Constitution provides, “No State shall make
or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law . . . .” U.S. Const. amend. XIV, § 1. In addition, article I, section 8 of

       5
            Rule 702 of the Tennessee Rules of Evidence governs the admissibility of expert testimony. It
provides:
                 If scientific, technical, or other specialized knowledge will substantially assist
       the trier of fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education may testify
       in the form of an opinion or otherwise.

                                                  - 22 -
the Tennessee Constitution states, “[N]o man shall be taken or imprisoned, or disseized
of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed
or deprived of his life, liberty or property, but by the judgment of his peers or the law of
the land.” Tenn. Const. art. 1, § 8. The Tennessee Supreme Court has held that article I,
section 8 of the Tennessee Constitution is “synonymous” with the Due Process Clause of
the Fourteenth Amendment. Gallaher v. Elam, 104 S.W.3d 455, 463 (Tenn. 2003) (citing
Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997)).

       Substantive due process has been defined in the following way:

              In contrast to procedural due process, substantive due process bars
       oppressive government action regardless of the fairness of the procedures
       used to implement the action. Lynch, 205 S.W.3d at 391-92. Substantive
       due process claims are divided into two categories: (1) deprivations of a
       fundamental constitutional guarantee, and (2) government actions that are
       “arbitrary, or conscience shocking, in a constitutional sense.” Id. at 392
       (quoting Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S. Ct.
       1061, 117 L.Ed.2d 261 (1992)). “Appropriate limits on substantive due
       process come not from drawing arbitrary lines but rather from careful
       ‘respect for the teachings of history [and] solid recognition of the basic
       values that underlie our society.’” Moore v. City of E. Cleveland, Ohio,
       431 U.S. 494, 503, 97 S. Ct. 1932, 52 L.Ed.2d 531 (1977) (quoting
       Griswold v. Connecticut, 381 U.S. 479, 501, 85 S. Ct. 1678, 14 L. Ed. 2d
       510 (1965) (Harlan, J., concurring)).

Mansell v. Bridgestone Firestone North American Tire, LLC, 417 S.W.3d 393, 409
(Tenn. 2013).

        Substantive due process prohibits the States from infringing on fundamental
liberty interests, regardless of the procedures provided, unless the infringement is
narrowly tailored to serve a compelling state interest. Chavez v. Martinez, 538 U.S. 760,
775 (2003); Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Reno v. Flores, 507
U.S. 292, 301-02 (1993). In order to qualify for such protection, the individual’s
fundamental rights and liberties must be “deeply rooted in this Nation’s history and
tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721 (citations and
internal quotation marks omitted). “A substantive due process inquiry focuses on ‘what’
the government has done, as opposed to ‘how and when’ the government did it.” See
Amsden v. Moran, 904 F.2d 748, 754 (1st Cir. 1990). Individuals who claim that their
right to substantive due process has been violated must show that the State’s conduct
shocks the conscience, or interferes with rights implicit in the concept of ordered liberty,
                                           - 23 -
or offends judicial notions of fairness, or is offensive to human dignity, or is taken with
deliberate indifference to protected rights. See Anderson v. Larson, 327 F.3d 762, 769
(8th Cir. 2003).

       Criminal defendants, in particular, are entitled to considerable due process
protections:

       Criminal cases, as opposed to civil cases, directly involve the fundamental
       constitutional liberty rights of the defendant. As a result, our judicial
       system recognizes significantly more due process protections in criminal
       cases than in civil cases. For instance, in recognition that our system of
       criminal justice would rather set a guilty person free than to convict an
       innocent one, we permit criminal defendants to be convicted only upon
       proof of guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358,
       372, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Of
       course, most civil proceedings are decided on the much lower standard of
       the preponderance of the evidence. Additionally, persons defending
       criminal charges are vested with numerous state and federal constitutional
       rights to ensure a fair trial, including the constitutional rights to legal
       counsel, to present a defense, and to confront the State’s witnesses. See
       U.S. Const. Amend. VI; Tenn. Const. art. I § 9. Of course, the overarching
       concern in criminal prosecutions is that the defendant not be convicted
       except upon being afforded the due process of law, including the right to a
       trial that is fundamentally fair. See, e.g., State v. White, 362 S.W.3d 559,
       566 (Tenn. 2012) (“Due process, at its most basic level, ‘mean[s]
       fundamental fairness and substantial justice.’”) (quoting Vaughn v. State, 3
       Tenn. Crim. App. 54, 456 S.W.2d 879, 883 (1970)).

State v. Larkin, 443 S.W.3d 751, 799-800 (Tenn. Crim. App. 2013). 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.’” Id. at 800 (quoting State v. Tate, 925 S.W.2d 548, 555 (Tenn. Crim. App.
1995)).

        Based on this record, we cannot ignore the fact that, pursuant to Code section 55-
10-413(f)(2), 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 a defendant is acquitted. Because the money from the $250 BADT fees 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 pecuniary interest in
                                           - 24 -
securing convictions. The TBI forensic scientists also have a financial interest in
securing convictions because the collection of the BADT fees affects their continued
employment and salary, which gives them an incentive to find that defendants’ blood
alcohol content is 0.08% or higher. Even though we have concluded that forensic
scientists are not judges or administrative adjudicators under Tumey, we are compelled to
address the inherent conflict between the requirement that a forensic scientist be neutral
and objective and Code section 55-10-413, which deposits the monies received from the
BAC and BADT tests directly to the TBI, rather than the State general fund.

       Although the State contends that TBI forensic scientists have no obligation to be
neutral, we reject any assertion that TBI forensic scientists, who are agents of the State,
have no obligation to ensure that their BAC test results are accurate. While TBI forensic
scientists are obviously employees of a state law enforcement bureau, they must serve as
objective, independent experts in order to protect the integrity of the criminal justice
system. Although police officers and informants, who often have an interest in the
outcome of a case, are not expected to be neutral, forensic scientists, who engage in the
objective testing of blood samples to determine a defendant’s BAC, are expected to be
neutral and unbiased. See Joseph L. Peterson and Anna S. Leggett, The Evolution of
Forensic Science: Progress Amid the Pitfalls, 36 Stetson L. Rev. 621, 653 (Spring 2007)
(“Theoretically, at least, forensic evidence should be neutral, with the scientist not having
a stake in the outcome of the case.”).

        The requirement of a neutral and objective TBI forensic scientist fits well with the
State’s duty to pursue truth and justice in criminal cases. The United States Supreme
Court has made it clear that “[a prosecutor] is the representative not of an ordinary party
to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.” Berger v.
United States, 295 U.S. 78, 88 (1935); see State v. Culbreath, 30 S.W.3d 309, 314 (Tenn.
2000) (“[P]rosecutors are expected to be impartial in the sense that they must seek the
truth and not merely obtain convictions [and] are also to be impartial in the sense that
charging decisions should be based upon the evidence, without discrimination or bias for
or against any groups or individuals.”). The need for an unbiased TBI forensic scientist
is also consistent with holdings prohibiting the State’s suppression of evidence or its use
of false testimony, which likewise implicate due process concerns. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution”); Kyles v. Whitley, 514 U.S. 419, 438 (1995) (holding that a prosecutor
retains the responsibility, under Brady, to disclose favorable evidence to the defendant,
even if police investigators fail to inform the prosecutor of this evidence); see also Napue
                                           - 25 -
v. Illinois, 360 U.S. 264, 269 (1959) (reiterating that the State’s failure to correct false
evidence violates due process).

       This fee system, which was created by the legislature at the urging of the TBI,
creates a mechanism whereby the TBI forensic scientists have a pecuniary interest in
BADT fees in the form of continued employment, salaries, equipment, and training
within the TBI. As argued by Decosimo, the close relationship between the BADT fees
and the operational expenses of the TBI creates a scenario closely akin to an expert
witness contingency fee, which the Tennessee Supreme Court has held to be void because
it encourages bias. See Swafford v. Harris, 967 S.W.2d 319, 323 (Tenn. 1998) (holding
that “a contingency fee contract for the services of a physician acting in a medico-legal
expert capacity is void as against public policy and therefore unenforceable.”); Tenn.
Sup. Ct. R. 8, RPC 3.4(h) (stating that a lawyer shall not “offer an inducement to a
witness that is prohibited by law; or pay, offer to pay, or acquiesce in the payment of
compensation to a witness contingent on the content of his or her testimony or the
outcome of the case.”); see also Crowe v. Bolduc, 334 F.3d 124, 132 (1st Cir. 2003)
(“The majority rule in this country is that an expert witness may not collect compensation
which by agreement was contingent on the outcome of a controversy. That rule was
adopted precisely to avoid even potential bias.”).

        The State claims that the cases prohibiting expert contingency fees are
distinguishable from Decosimo’s case because TBI forensic scientists are paid a salary,
rather than a contingency fee. It asserts that the scientists’ salaries are not dependent on
convictions in specific cases and that if blood or breath samples are compromised, then
the TBI forensic scientist responsible for this error is dismissed, and the samples are
retested. While we acknowledge that the BADT fees do not directly compensate the TBI
forensic scientists, we nevertheless recognize that the BADT fees provide substantial
funding to the state bureau employing these scientists.

       The aggregate BADT fees, which currently total over $3,000,000 per year,6 are not
deposited in the state’s general fund but are deposited directly in the TBI’s intoxicant
testing fund that is reserved “exclusively for the use of the TBI.” Director Gwyn, during
his 2014 testimony before the Senate Judiciary Committee, acknowledged that without
increasing the BADT fees in 2010, the TBI would have had to eliminate several forensic
scientist positions. Cf. Dugan, 277 U.S. at 65 (holding that because the mayor received
the same salary from the city’s general fund regardless of whether he convicted or
acquitted the defendants in the cases before him, there was no showing that failure to


       6
         The record shows that there has been a generally upward trend in the collection of BADT fees,
which indicates that the total amount of these fees will increase over time.
                                               - 26 -
convict in a case or cases would affect his fixed compensation). As recently as the TBI’s
2013-14 state budget presentation, Director Gwyn stated,

               In order to meet the 5% reduction of $1,557,000 in this agency’s
       base appropriation for the (2013-2014) budget, we will need to eliminate 18
       filled positions. Due to the previously mentioned buyout, we are extremely
       thin in administration, so these cuts must come from the commissioned
       ranks. These positions will consist of 9 criminal investigators and 9
       forensic scientists, further diminishing the ability to respond as quickly and
       will increase already lengthy backlogs.

Based on the record before us, the TBI, and specifically the forensic science division, is
dependent on these BADT fees. Given the upward trend in BADT collections for each
successive year, we believe that the TBI will become increasingly reliant on these fees in
the future, which only serves to heighten the potential for bias among TBI forensic
scientists.

       The fee system in Code section 55-10-413(f) also closely resembles cases in which
expert witnesses or attorneys have been disqualified for conflicts of interest. See Larkin,
443 S.W.3d at 801-804 (stating that due process mandated a presumption in favor of
disqualification of an forensic pathologist, who had been employed as an expert by the
defense, to testify as an expert for the State on the same or substantially similar matter in
a later criminal prosecution of the defendant and concluding that the forensic scientist
was, in fact, disqualified); Clinard v. Blackwood, 46 S.W.3d 177, 186 (Tenn. 2001)
(confirming that “Tennessee courts have and will continue to apply the appearance of
impropriety standard as a basis for [the] disqualification” of attorneys). While we
acknowledge that TBI forensic scientists could lose their jobs if they falsify test results
and these falsifications are discovered, we also recognize that forensic scientists would
most certainly lose their jobs if funding for their positions disappears, a result of which
these forensic scientists are no doubt well aware. Because the fee system at issue in this
case calls into question the trustworthiness of the TBI forensic scientists’ test results, it
violates due process.

      While the State contends that any possible bias on the part of forensic scientists
can be offset by procedural safeguards, such as an independent testing of samples, a
thorough cross-examination of the forensic scientist at trial, or a jury instruction
addressing the credibility of TBI forensic scientists, we conclude that these procedural
safeguards fail to remedy the due process violations resulting from the fee system itself.
Cf. Ward, 409 U.S. at 61-62 (rejecting the claim that the procedural safeguards of an
appeal and trial de novo corrected the due process violation); Brown, 637 F.2d at 280
(recognizing that an accused has a right to an unbiased magistrate or judge with or
                                           - 27 -
without a jury and with or without the right to appeal and a trial de novo before a jury);
see also City of White House v. Whitley, 979 S.W.2d 262, 267 (Tenn. 1998) (concluding
that “the due process violation resulting from the lack of an attorney judge is not cured by
the statutory right to a de novo appeal.”). We conclude that independent testing is not an
adequate safeguard because it impermissibly shifts the burden of proof from the State to
the defense. Because the State has the duty to pursue truth and justice, it has the
obligation to provide an accurate, unbiased BAC result, not a result that is deemed correct
until disproved by the defendant. Under the scenario suggested by the State, the
defendant is forced to obtain an independent test, to pay for an attorney to defend him,
and to hire an expensive expert to challenge the BAC result in order to do what an
unbiased TBI forensic scientist should have done from the beginning. Lastly, because so
many DUI cases end in guilty pleas, rather than trials, we conclude that neither a jury
instruction nor vigorous cross-examination of TBI forensic scientists corrects the fact that
Code section 55-10-413(f) violates due process. Accordingly, we hold that the trial court
erred in failing to suppress the test results in this case.

                                     CONCLUSION

       Because Code section 55-10-413 violates the Due Process Clause of the
Fourteenth Amendment and article I, section 8 of the Tennessee Constitution, we reverse
the judgment of the trial court and remand for proceedings consistent with this opinion.



                                                    _________________________________
                                                    CAMILLE R. MCMULLEN, JUDGE




                                           - 28 -
