SB 2662

This bill authorizes a law enforcement officer to administer an oral-fluid screening test only if all of the following criteria is met:  The screening device and collection kit are on a list maintained by the department of safety ("department""), in consultation with the Tennessee bureau of investigation ( TBI ) and peace officer standards and training commission ( "" POST commission "" ), identifying acceptable oral-fluid screening devices and approved collection kits (""approved device list"").  The officer is currently trained and certified on the specific device being used and its collection protocol .  The device has completed required calibration/verification and is within the manufacturer's stated maintenance interval. Before each use, this bill requires the officer to complete and document a q uality-control check ("" QC check"") as required by the device manufacturer or agency policy. A device that fails a QC check must be removed from service immediately and must not be used until the issue is corrected and documented. However, a device must not be used if the device's maintenance or calibration/verification status cannot be verified at the time of use. Additionally, o ral-fluid screening must not be used as a default i nvestigative step and may be administered only after specific, observable driving behavior or other articulable facts supporting impairment are documented. At the time an oral-fluid screening test is administered, this bill requires an officer to complete an oral-fluid test record that includes, at minimum, ( i ) t he date, time, and location; ( ii ) t he officer's name and certification identifier; ( iii ) t he device make/model and serial number; ( iv ) t he cartridge/kit lot number and expiration date; (v ) t he last calibration/verification date; ( vi ) t he QC check result and any error codes; ( vii ) t he chain-of-custody details for any collected sample; and ( viii ) t he device-generated output, if available. Law enforcement agencies must retain oral-fluid test records and associated maintenance records for no less than three years, or for the pen dency of a criminal or administrative proceeding related to the test, whichever is longer. This bill provides that f ailure to comply with the provisions above render the oral-fluid screening result inadmissible as substantive evidence. CONFIRMATORY TEST If the state seeks to introduce an oral-fluid screening result as substantive evidence in a criminal proceeding or to support an administrative license consequence, then this bill requires the state to obtain a confirmatory test from an accredited laboratory. A confirmatory test may be performed on (i) a second oral-fluid sample collected using an approved kit and preserved for laboratory testing or ( ii ) a blood sample obtained by lawful means within a clinical setting by a certified medical professional. If confirmatory testing is not obtained, then this bill authorizes an oral-fluid screening result to be used only as a preliminary investigative lead and does not, standing alone or in combination with generalized observations, support arrest, detention, or license deprivation, and is not admissible as substantive evidence at trial and does not, by itse lf, support an administrative license consequence. A defendant may waive confirmatory testing in writing after consultation with counsel. This bill provides that f ailure to comply with the prior two paragraphs render the oral-fluid screening result inadmissible as substantive evidence and insufficient, by itself, to support an administrative license consequence. INDEPENDENT RETESTING When an oral-fluid sample is collected for laboratory confirmation, then this bill requires the agency to preserve a sufficient portion of the sample for independent retesting. Upon written request by the defendant or counsel, the state must make preserved sample material available for independent testing by an accredited laboratory selected by the defendant, subject to reasonable chain-of-custody procedures. The state must provide written notice of preservation and retesting rights at the time of booking or citation, and in a notice of administrative license action. This bill provides that f ailure to comply with the prior paragraph creates a rebuttable presumption that evidence obtained through the noncompliant action is unreliable. This presumption may not be overcome solely by generalized officer testimony. DISCLOSURES In a criminal proceeding in which oral-fluid testing is used, this bill requires the state to disclose, upon request and subject to existing discovery rules, (i) the oral-fluid test record, (ii) d evice maintenance and calibration/verification logs, (iii) o fficer training and certification records, (iv) m aintained relevant device error logs, (v) m anufacturer advisories or recall notices known to the agency, and (vi) c onfirmatory laboratory reports and chain-of-custody documentation. The department of safet y (""department"") must publish and keep updated the approved device list and minimum statewide training and recordkeeping standards. This bill provides that f ailure to comply with the prior paragraph creates a rebuttable presumption that evidence obtained through the noncompliant action is unreliable. This presumption may not be overcome solely by generalized officer testimony. MINIMUM AUDIT STANDARDS AND CORRECTION ACTION PROCESS This bill requires the department, in consultation with the POST commission and TBI, to establish minimum audit standards and a corrective action process for agencies that repeatedly fail to comply with this bill. DISMISSAL NOT REQUIRED WHEN OTHER EVIDENCE EXISTS This bill clarifies that its provisions do not require dismissal of a DUI charge where other admissible evidence of impairment exists independent of an oral-fluid screening result. OTHER REMEDIES This bill clarifies that its provisions do not limit another remedy available under state or federal law. RULEMAKING This bill authorizes t he department to promulgate rules to effectuate this bill, including training standards, approved devices and kits, documentation requirements, preservation procedures, audit procedures, and reporting formats. APPLICABILITY This bill applies only to enforcement actions occurring on or after January 1, 2027."