Safety, Dept. of

Plain English Breakdown

The bill does not explicitly recommend but requires detailed record-keeping.

Oral-Fluid DUI Testing Safeguards Act

This act sets rules for using oral-fluid tests in drunk driving investigations by law enforcement officers in Tennessee, including requirements for approved devices and officer training.

What This Bill Does

• Requires police to use only approved devices and kits when testing drivers' oral fluid for alcohol or drugs.
• Needs officers to be trained on the specific device they are using before conducting a test.
• Makes sure that each device is working properly before it's used.
• Recommends keeping detailed records of every test done, including information about the device and officer involved.
• Requires confirmatory tests from an accredited lab if oral-fluid results will be used in court or for license consequences.
• Allows defendants to request independent testing on preserved samples.

Who It Names or Affects

• Law enforcement officers who conduct DUI investigations.
• Drivers suspected of driving under the influence.
• Laboratories that perform confirmatory tests.
• Courts and administrative agencies dealing with DUI cases.

Terms To Know

Oral-fluid test

A test using a person's saliva to detect alcohol or drugs in their system.

Confirmatory test

A more accurate lab test used to confirm the results of an initial oral-fluid screening.

Limits and Unknowns

• It is unclear how long it will take for all law enforcement agencies to comply with these new rules.
• The effectiveness and reliability of the approved devices are based on manufacturer claims.

Official Summary Text

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.

Current Bill Text

HOUSE BILL 2439
By McKenzie

SENATE BILL 2662
By Akbari
SB2662
012423
- 1 -

AN ACT to amend Tennessee Code Annotated, Title 55,
Chapter 10, Part 4, relative to oral-fluid testing.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. This act is known and may be cited as the "Oral-Fluid DUI Testing and
Evidence-Based Enforcement Safeguards Act."
SECTION 2. Tennessee Code Annotated, Title 55, Chapter 10, Part 4, is amended by
adding the following as a new section:
(a) As used in this section:
(1) "Accredited laboratory" means a laboratory accredited under
ISO/IEC/17025 or an equivalent accreditation recognized by the department or
the Tennessee bureau of investigation (TBI);
(2) "Approved device list" means a list maintained by the department, in
consultation with the TBI and peace officer standards and training commission
(POST commission), identifying acceptable oral-fluid screening devices and
approved collection kits;
(3) "Articulable facts" means specific, observable facts, actions, or
circumstances that can be described in plain language and that are relevant to
the asserted legal standard, such as reasonable suspicion or probable cause, as
distinguished from generalized impressions or stereotypes. Articulable facts
must be contemporaneously documented and must not include generalized,
demeanor-based observations unrelated to driving behavior;

- 2 - 012423

(4) "Calibration/verification" means manufacturer-required calibration and
verification procedures, including periodic checks, necessary to ensure a device's
accuracy and proper functioning, documented in maintenance records;
(5) "Confirmatory test" means a laboratory test performed by an
accredited laboratory using scientifically accepted methods, including, but not
limited to, GC-MS or LC-MS/MS, to confirm the presence and identity of
substances indicated by screening;
(6) "Department" means the department of safety;
(7) "Oral-fluid test" means a test of a person's oral fluid, saliva, or oral
mucosal sample used to detect the presence of intoxicants, controlled
substances, or metabolites during an investigation conducted under this chapter
and is a preliminary screening tool;
(8) "Quality-control check" or "QC check" means a pre-shift or pre-use
function test, control test, or internal diagnostic check required by manufacturer
guidance or department policy, documented at the time of use; and
(9) "Screening device" means a portable device used roadside or in the
field to screen an oral-fluid sample.
(b)
(1) A law enforcement officer may administer an oral-fluid screening test
only if:
(A) The screening device and collection kit are on the approved
device list;
(B) The officer is currently trained and certified on the specific
device being used and its collection protocol; and

- 3 - 012423

(C) The device has completed required calibration/verification and
is within the manufacturer's stated maintenance interval.
(2) Before each use, the officer must complete and document a 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.
(3) A device must not be used if the device's maintenance or
calibration/verification status cannot be verified at the time of use.
(4) Oral-fluid screening must not be used as a default investigative step
and may be administered only after specific, observable driving behavior or other
articulable facts supporting impairment are documented.
(c)
(1) At the time an oral-fluid screening test is administered, an officer shall
complete an oral-fluid test record that includes, at minimum:
(A) The date, time, and location;
(B) The officer's name and certification identifier;
(C) The device make/model and serial number;
(D) The cartridge/kit lot number and expiration date;
(E) The last calibration/verification date;
(F) The QC check result and any error codes;
(G) The chain-of-custody details for any collected sample; and
(H) The device-generated output, if available.
(2) Law enforcement agencies must retain oral-fluid test records and
associated maintenance records for no less than three (3) years, or for the

- 4 - 012423

pendency of a criminal or administrative proceeding related to the test, whichever
is longer.
(d)
(1) 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, the state shall obtain a confirmatory test from an
accredited laboratory.
(2) A confirmatory test may be performed on:
(A) A second oral-fluid sample collected using an approved kit
and preserved for laboratory testing; or
(B) A blood sample obtained by lawful means within a clinical
setting by a certified medical professional.
(3) If confirmatory testing is not obtained, an oral-fluid screening result
may 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 itself, support an administrative license consequence.
(4) A defendant may waive confirmatory testing in writing after
consultation with counsel.
(e)
(1) When an oral-fluid sample is collected for laboratory confirmation, the
agency must preserve a sufficient portion of the sample for independent
retesting.
(2) Upon written request by the defendant or counsel, the state must
make preserved sample material available for independent testing by an

- 5 - 012423

accredited laboratory selected by the defendant, subject to reasonable chain-of-
custody procedures.
(3) 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.
(f)
(1) In a criminal proceeding in which oral-fluid testing is used, the state
must disclose, upon request and subject to existing discovery rules:
(A) The oral-fluid test record;
(B) Device maintenance and calibration/verification logs;
(C) Officer training and certification records;
(D) Maintained relevant device error logs;
(E) Manufacturer advisories or recall notices known to the
agency; and
(F) Confirmatory laboratory reports and chain-of-custody
documentation.
(2) The department must publish and keep updated the approved device
list and minimum statewide training and recordkeeping standards.
(g)
(1) Failure to comply with subsection (b) or (c) renders the oral-fluid
screening result inadmissible as substantive evidence.
(2) Failure to comply with subsection (d) renders the oral-fluid screening
result inadmissible as substantive evidence and insufficient, by itself, to support
an administrative license consequence.

- 6 - 012423

(3) Failure to comply with subsection (e) or (f) creates a rebuttable
presumption that evidence obtained through the noncompliant action is
unreliable. This presumption may not be overcome solely by generalized officer
testimony. This section does not limit another remedy available under state or
federal law.
(4) The department, in consultation with the POST commission and TBI,
shall establish minimum audit standards and a corrective action process for
agencies that repeatedly fail to comply with this section.
(5) Nothing in this section requires dismissal of a DUI charge where other
admissible evidence of impairment exists independent of an oral-fluid screening
result.
SECTION 3. The department of safety is authorized to promulgate rules to effectuate
this act, including training standards, approved devices and kits, documentation requirements,
preservation procedures, audit procedures, and reporting formats. The rules must be
promulgated in accordance with the Uniform Administrative Procedures Act, compiled in
Tennessee Code Annotated, Title 4, Chapter 5.
SECTION 4. For purposes of rulemaking, training, and implementation, this act takes
effect July 1, 2026, the public welfare requiring it. For all other purposes, this act takes effect
January 1, 2027, the public welfare requiring it, and applies only to enforcement actions
occurring on or after that date.