In Tennessee, a person convicted of DUI would be ordered to pay a “Blood Alcohol or Drug Determination Test (BADT)” fee as part of their court costs. No BADT fee was charged where a case was dismissed, a not guilty verdict returned, or where a defendant pled to a non-DUI related offense. Then, according to Tennessee law, the BADT fees collected were paid ultimately to the Tennessee Bureau of Investigation where they were used for all TBI agency operational costs. The blood testing portion of these fees had recently been increased to $250.00, and the Tennessee forensic lab relied on these BADT fees, and the recent increase, to fund the largest portion of their operating expenses. This is all written in past-tense language because a Tennessee Court of Appeals has recently ruled that this practice was unconstitutional. Specifically, the court found:
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 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.
There are many interesting things about this opinion, not the least of which is the fact that it lays bare the assertion by the States that their forensic labs are independent. In Michigan for example, the lab techs that test blood samples for alcohol proudly testify that they care not what the results are because they only care about the integrity of the science they employ. In other words, they attempt to hide behind a veil of scientific objectivity. This is a great sound-bite for the jury but that does not make it true.
Like Tennessee’s DUI laws, Michigan’s drunk driving laws provide, in Michigan Compiled Laws 257.625(13), that people convicted of DUI may be ordered to pay the “costs of prosecution.” Case law provides that these costs of prosecution imposed “must bear some reasonable relation to the expenses actually incurred in the prosecution.” Furthermore, those costs may not include “expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by the public irrespective of specific violations of the law.”[i]
It is not clear whether Michigan’s forensic lab receives any its funding out of these costs of prosecution, or any of the other fines and costs paid by a person convicted of DUI. However, it is also not clear that they do not.
Anytime the State has sole control over the production of the chemical test results used to as evidence to convict there is an inherent conflict of interest. Prosecutors may argue that drivers accused of drunk driving are protected because they can ask for an independent blood test. While this is true, this is the same argument made by the State of Tennessee, and the same argument that the Tennessee Court of Appeals discredited and disregarded. True independence from this possible conflict of interest does not currently exist in Michigan.
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[i] See People v. Dilworth, 291 Mich. App. 399, 402, 804 N.W.2d 788, 790 (2011).