Supreme Court Determines TBI Fee Collection Statute Constitutional

August 23, 2018

The Tennessee Supreme Court has determined that a statute allowing the Tennessee Bureau of Investigation (TBI) to collect a fee when an individual is convicted of certain drug and alcohol offenses does not deprive defendants of the right to a fair and impartial trial under both the Tennessee and U.S. constitutions. The ruling reverses a decision from the Tennessee Court of Criminal Appeals.

The case involved a challenge to the constitutionality of a statute that imposes a $250 blood and alcohol drug concentration test (BADT) fee on every person convicted of certain offenses, including driving under the influence, if samples from the offender were sent to the TBI forensic lab.  The fees are deposited in a TBI toxicology unit intoxicant testing fund and can be used to fund staff positions and buy equipment in the labs.

In 2012, the defendant, Rosemary L. DeCosimo, was charged with five driving offenses, including DUI.  At her arrest, she provided a blood sample that was sent to the TBI forensic lab and showed a blood alcohol content at 0.16 percent, twice the legal limit. In 2014, she, and 22 other defendants from Hamilton County, filed a motion to have the test results dismissed, challenging the constitutionality of the BADT fee. The defendants argued the BADT fee incentivized TBI forensic scientists to generate test results that produce convictions and, therefore, improve the finances of the agency. A panel of three criminal court judges held a joint hearing on these challenges. The defendants acknowledged there were no actual allegations of unfair or inappropriate treatment and their challenge was based on the appearance of impropriety. The judges reviewed financial data, training protocols, and legislative testimony from TBI and rejected the defendants’ argument. Ms. DeCosimo renewed her motion again during her own case, and the trial judge, after reviewing the evidence presented at the hearing as well as new evidence, ruled against her. She eventually pled nolo contendere to DUI per se and certified the question of the constitutionality of the BADT statute for appeal.

The Court of Criminal Appeals found the BADT statute violates due process principles. While it agreed that precedent concluding that judges cannot have a direct or indirect financial interest in a case did not apply because TBI forensic scientists do not have a judicial or quasi-judicial function, it stated it could not ignore the fact TBI only receives the fee after a conviction. It concluded the TBI scientists have a financial interest in the fees in the form of continued employment, salaries, equipment, and training. The Supreme Court granted the state’s appeal and reversed the Court of Criminal Appeals.

In its decision, the Supreme Court concluded TBI forensic scientists do not exercise judicial authority and have no control over procuring evidence, making arrests, or initiating prosecutions. They simply perform scientific tests on evidence samples submitted to them and the BADT fee is collected months or years later, if at all. The Court concluded the alleged financial interest is too remote to trigger a due process challenge even under the strictest requirements. The Court also rejected the argument that the BADT fee was similar to paying an expert witness a fee only if the case is won. The Court found that TBI forensic scientists are salaried employees who risk immediate termination and large agency costs if even inadvertent mistakes are made in the testing process.  The Court reinstated the decision of the trial court in Ms. DeCosimo’s case.

To read the unanimous opinion in State of Tennessee v. Rosemary L. DeCosimo, authored by Justice Cornelia A. Clark, go to the opinions section of