Pubdate: Sun, 10 Apr 2011
Source: Evansville Courier & Press (IN)
Copyright: 2011 The Evansville Courier Company
Author: Mark Wilson
Bookmark: (Cannabis - United States)
Bookmark: (Indiana)


But Effect on Cases Is Still Unknown

Questions about the validity of some drug and alcohol test results by 
the Indiana State Department of Toxicology have yet to affect 
Southwestern Indiana overtly.

An audit of the lab's results from 2007 through 2009 has turned up 
problems with at least 200 of the marijuana test results in that time 
period, said Larry McIntyre, a spokesman for the department.

The errors deal with issues such as handling of samples, lab 
processes and, in some cases, interpretation. He said the potential 
seriousness of the situation is not yet known.

At issue are concerns that cases built around the lab's blood test 
results might be tainted by the errors, prompting a need to reopen those cases.

The audit covered only marijuana testing. An audit of test results 
for cocaine and alcohol is pending.

As of last week, about 14 letters had been mailed to prosecutors 
notifying them of problems with cases, McIntyre said. Those letters 
included one to Dubois County.

The situation also raises thorny issues such as whether prosecutors 
in the state knew about a problem in specific cases and failed to 
disclose it to defense attorneys. Such a move is called a Brady 
violation, after the U.S. Supreme Court case that established it, 
said Larry Landis, executive director of the Indiana Public Defender Council.

A Brady violation exists when a prosecutor fails to disclose 
information relevant to the guilt, innocence or to the punishment of 
a defendant.

"Potentially, we are looking at a very serious impact," Landis said.

But Landis said there is no Indiana case law specifically dealing 
with Brady issues related to lab work.

Other issues include how to decide which cases to reopen and who will 
pay for it, Landis said.

Stephen Owens, Vanderburgh County's chief public defender, said that 
with many counties already swamped with normal caseloads, 
responsibility for revisiting such cases could become a problem.

"We're all operating sort of in a maxed-out capacity. Who is going to 
grab the bull by the horns and bring this to the courts' attention?" he said.

When West Virginia was forced to respond to a lab technician who 
falsified reports, the state established a separate court to handle 
the cases, he said.

No records have been falsified in Indiana, McIntyre said.

"The procedures used to test them did not comply with the high 
standards needed to testify in court," McIntyre said.

However, in cases involving drugs, changed results likely would not 
affect the outcome of cases if the results still remained positive.

"A lot of theses really are not going to make a difference. If it was 
for marijuana or other drugs, there is no minimum limit. It's either 
yes or no, it's there or not there," McIntyre said.

Camala Cooley, a Vanderburgh County deputy prosecutor, agreed.

"Case law shows there is no amount of drugs that are safe to be in 
the (body's) system," she said.

She noted that in cases of operating a vehicle while intoxicated 
charges, whether from alcohol or other drugs, normally there are 
other indicators of impairment.

Test results can make a significant difference in the outcome of some 
cases. Cooley recalled a traffic fatality case that she prosecuted, 
from the same time period that is under scrutiny, in which the 
defendant's initial test result from the state was positive for a 
prescription medication and marijuana. The levels of medication were 
normal for its expected use and additional tests found no marijuana 
present in the blood.

"The charges ended up being dismissed because it appeared to have 
been an accident," she said.

Often, prosecutors don't need to rely on the state lab for blood 
testing, Cooley said. In alcohol cases, breath tests administered at 
the jail under controlled conditions are often acceptable. Blood 
samples are typically sent to a lab, usually the state's, for testing 
in cases involving injuries and fatalities.

Although prosecutors can send blood samples to private labs for 
testing, the cost comes out of their own budgets, Cooley said.

Owen said the situation may have implications for current cases as 
well, at least in the short term, by causing attorneys to question 
the reliability of the state lab.

"I certainly would be looking at getting a test from somebody else," he said.  
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