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Jerry Summers and Ben McGowan Get Dismissal of Vehicular Homicide Case

On October 7th, 2013, the District Attorney's office in Chattanooga, Tennessee moved for a dismissal of a vehicular homicide with a blood alcohol level of .24.

The basis for said action was the result of a second blood test reading by Aperian Labs of Opeliha, Alabama which showed a blood alcohol reading of .001 and additional testimony by the arresting officer that the defendant did not appear to be under the influence and that the resulting death of a motorcyclist was probably a civil matter.

It is a standard practice at Summers and Wyatt to move for a blood sample to be tested by an independent laboratory because of the potential for mistakes to be made when the Tennessee Bureau of Investigations (TBI) tests one hundred (100) blood samples at a time in a single batch.

On many occasions, the independent test has confirmed the initial TBI test results but other errors have been detected. If there is a discrepancy, a motion for detailed laboratory data should be filed. Some attorneys file a request for such information as part of their initial discovery requests; others wait and get a second blood sample test by an independent laboratory.

On October 11, 2013, Hamilton County District Attorney Bill Cox issued a statement to the judge and defense bar announcing that the initial chemist in the TBI's Nashville office, Kyle Bayer, had terminated and that any cases where he had done the testing and analysis would be re-done by an independent laboratory of the State's choosing (see attachment). Whether such defective work was the result of negligence or willful design is an issue which will have to be determined by future litigation in Mr. Bayer's cases. The number of D.U.I. cases that he has performed alcohol/drug tests may be in the thousands.

Jerry Summers and Ben McGowan recommend the following steps in Mr. Bayer's or other chemists' cases:

1. File a motion for a sample of your client's blood;

2. If one is not available, move to dismiss the case under Ferguson and Merriman;

3. If a sample is available, have it tested by an independent lab, such as Aperian Labs or others; and,

4. If there is a discrepancy in the reading of the two separate tests, move for specific exculpatory evidence under Brady and related cases and seek all laboratory data.

Although our client has been exonerated, he has incurred the residual scars of (1) bail bond in the amount of $25,000, (2) substantial attorney fees; (3) listed in "Just Busted", Chattanoogan.com, Times Free Press and television crime segments, and (4) the permanent stigma of being accused of the taking of another person's life and a charge of vehicular homicide. Although the court has expunged the charges, the end result is like the person who handles a skunk thinking it is a cat. "You can get rid of the skunk but you can't get rid of the smell."

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Summers, Rufolo & Rodgers
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Chattanooga, TN 37402-2913

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