April 10, 2001

Sheriff Scott Manning
Anderson County Sheriff's Department
Anderson County Courthouse
Clinton, Tennessee 37716

RE: BLOOD OR BREATH TESTS IN DUI CASES

Dear Sheriff Manning,

On April 5, 2001 during a DUI trial our criminal court judge suppressed evidence of a .23 B/A reading on the breath-testing machine located in the jail. The judge's ruling we believe was hypertechnical and restrictive. But it's the law in our courts now. So the case was lost because we cannot appeal an evidentiary ruling like this which occurs during a trial. For this trial we even had Jerry Maine of TBI lab present who could have testified that the officer performed the test correctly and that the machine was operating properly. Judge wouldn't let him testify. A sessions judge has also recently suppressed breath results on grounds not used before in our court.

In view of these rulings particularly in criminal court we would suggest that all DUI arrestees be offered a blood test rather than a breath test. Jerry Maine told us that some police departments have their own EMTs (Emergency Medical Technicians) who are authorized to draw blood, and you can always use a hospital or clinic.

When obtaining these blood samples, the arresting officer should do the following: 1) observe the blood being drawn, 2) label the specimen yourself or watch it being labeled, 3) fill out TBI request form yourself and 4) seal the specimen in the evidence container yourself and mail or hand carry it to the TBI lab yourself. Do not insert other officers into the process unless there is some real emergency. Otherwise several officers can be tied up in court needlessly and you know from experience how inconvenient this is.

For any officers or departments that choose to continue offering breath tests regardless of our advice, be aware that our office may decline to prosecute if the test results are crucial to the case and if everything isn't exactly right. The following list of requirements for the machine operator is not exclusive (there are many, many more requirements). These are just a few that are easily ignored:

1) the machine the officer uses for the test must be the same machine he used for training (not another machine of the same model). How do you know? Hopefully you checked serial numbers at training. This alone may not be enough if unknown to you, someone replaced a part.

2) must have your certification document that you received before you gave the particular test and it must clearly say "TBI" on it and you must be able to testify that the instructor was a TBI employee or agent. Officer's word won't be enough - have the document even in sessions court.

Judges are making decisions - in our criminal court and in our sessions court to suppress your breath alcohol results on technical grounds. It doesn't matter that you, a jury and we would consider the evidence reliable and credible, no jury will ever hear it and the State has no appeal from these evidentiary rulings. So everyone has wasted time and effort.

On the breath test, if you do not have absolutely perfect circumstances don't do it, use a blood test! Do not assume your qualifications are acceptable on the breath test because you were allowed to testify before in jury trials - so was the officer whose evidence was suppressed April 5! And he was also a certified instructor on giving breath tests!

Sincerely,

James N. Ramsey
District Attorney General

JNR/csm