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Everything posted by Danyalson

  1. I’m betting that there is something important I am leaving out, because everyone is talking about how “DUI cases across the state are in limbo” and at least here in in my county all of the DUI cases that are awaiting trial are on hold. I’m not expecting you to read this whole document but you are probably experienced enough with these things that you can skip to the ruling details. Here is the ruling from the lower court. http://www.tsc.state.tn.us/sites/default/files/rosemary_decosimo_opinion.pdf And here is a news article that came out that is much shorter but it sums things up. http://www.timesfreepress.com/news/local/story/2018/mar/22/tennessee-supreme-court-hear-case-hthrown-dui/466547/ It seems like this has the potential to be a very interesting case.
  2. I’m betting that they will start putting the fees into the state general fund for the TBI to pull from instead of it going directly into the TBI fund which I think is the real issue. I think the legislature has already written the bill and sent it to Gov Haslam, but I don’t think he had signed it yet. He is probably waiting to see if it’s necessary first. The TBI toxicology unit gets 100% if it’s operating revenue from those fees. Both arguements are very compelling, but I suppose that is true if most cases that make it to the Supreme Court. Really the closest analogy I can think of would be experts hired by the State that have to be paid for by the defense, but even in that situation the expert is paid regardless of the verdict, just not by the defense... So let’s say the Supreme Court does uphold the lower courts ruling. What affect do you think it would have on pending cases? I do know that a lot of cases with TBI tox screens are on hold right now until everyone sees how the chips are going to fall.
  3. Having the TBI issue refunds would indeed be another option, or they could have the prosecution cover the costs instead of the defense. While I’m certainly no legal expert, I can see how this is different than other court costs. Unlike other costs fines, this particular fee it is paid directly to a state law enforcement agency responsible for supplying evidence, and that agency can only afford to operate if it’s producing positive results. It would be like if “Company X” made radar guns, and they receive 100% of their revenue from fees paid by defendants who plead guilty or who just went ahead and paid their tickets. Even if no illegal tampering was happening, one could see how designing the device to occasionally read 5mph faster could create incentive for foul play. It would make it even worse if the state owned the company because it creates a system where the state/the TBI employees actually profit monetarily from positive results. Not to mention in 2013 there was a case involving. TBI lab tech who falsified lab work to show positive results. Had the defendant who done independent testing then no one would have ever known. Most clients can’t afford that and it shifts the burden of proof to the defendant. Does any of that make a difference? http://www.tncourts.gov/sites/default/files/rosemary_decosimo_opinion.pdf check our the ruling from the lower court it’s actually very interesting to follow
  4. Back in February, an appellate court made a landmark ruling that could potentially affect hundreds of DUI cases in the State of Tennessee. In a ruling stemming from the case of Rosemary Decosimo, the appellate court ruled that the TBI making $250 for every screen that results in a guilty verdict or plea bargain is unconstitutional. It was argued that by charging $250 only to those who plea out, or are found guilty is illegal, as it could potentially create an incentive for the state to seek guilty verdicts instead of seeking the truth. You can find the ruling easily if you search for “Tennessee Decosimo TBI DUI” or something to that affect... Now, the state prosecutors have of course appealed the decision to the State Supreme Court. In the meantime, lawmakers/the governor are looking at a legislative fix that will divert the fees into the general fund instead of directly into the TBI toxicology fund. The State Supreme Court is set to rule on this on 5/31/18. I know these questions might be hard to answered and some are just opinions but I am interested in hearing what all you have to say... These are my questions: •In your opinion how do you think the SC will rule? Will they overturn the lower court decision, or uphold it? I’ve read a lot of opinions on both sides but those who believe the appellate court erred all seem to hinge their argument on “this would mess up too many cases”. If something is unconstitutional does that really matter, especially since the only thing that would be messed up is one piece of evidence? To me it doesn’t seem like it can be remedied by independent testing because that shifts the burden of proof to the defendant, and jury instruction won’t work because most of these cases never make it to trial. The only solution is to change how the fee system works and in doing so they would have to admit that their old was of doing it was illegal. •Right now this is only affecting the cases that were part of the in the original ruling with the lower court, but if the SC upholds the lower court’s decision will this allow def attorneys to have these tox screens tossed from evidence in other cases in Tennessee, especially in cases where the ONLY piece of evidence is a TBI tox screen? •If the Court decides it is unconstitutional and the state fixes the problem by diverting fees to the general fund or making everyone pay regardless of verdict etc, will older tox screens (lets say from 2016) get tossed since the fee system was in place in 2016? I very much value the diversity of opinions that I hope to get here. Thank you all in advance.
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