Toxicology Testing by NMS Labs – FAQ

Many attorneys have asked us about blood-drug (and some blood-drug and alcohol) testing performed by NMS Labs. We have compiled the questions and our answers here. If you have additional questions, please post them in the comments and we will try to answer them as well. Let’s make this a living document!

The toxicology evidence in my case was analyzed by NMS Labs in PA. Why was it sent there?

The NC State Crime Laboratory currently is outsourcing blood-drug and blood-alcohol and drug cases in an effort to address their backlog. 43 counties are currently participating in the outsourcing program: Alexander, Beaufort, Bladen, Brunswick, Buncombe, Burke, Cabarrus, Caldwell, Catawba, Cleveland, Columbus, Duplin, Durham, Edgecombe, Franklin, Gaston, Greene, Guilford, Harnett, Hoke, Iredell, Lenoir, Lincoln, Johnston, Jones, Lee, McDowell, Mecklenburg, Moore, Nash, New Hanover, Onslow, Rockingham, Rowan, Rutherford, Sampson, Scotland, Stokes, Surry, Union, Vance, Warren, Wayne, and Wilson.

Who is the “Certifying Scientist” who signs the lab report and are there any potential problems with this?

NMS lab reports are not signed by the analyst who performed the tests, rather by a “Certifying Scientist,” who does not seem to have any interaction with the evidence itself, and possibly not even the data. Melendez-Diaz established an inescapably clear requirement that those people testifying as experts, must have formed their own opinion on the data that was generated from the testing. If the Certifying Scientist does not have an opinion, or lacks the qualifications to support those opinions, that person should not be testifying as an expert about the data in that lab packet. Additionally, NMS runs their analyses in batches. Multiple technicians work to process multiple samples at the same time. A Certifying Scientist who did not perform or observe the testing is not going to be able to guarantee every step of the process was error-free. For more in-depth discussion of these problems, please see: http://nccriminallaw.sog.unc.edu/the-nc-supreme-courts-recent-substitute-analyst-cases/

Does NMS have different procedures from the NCSCL?

Some of NMS’s procedures are different. NMS provides quantified results for their toxicology reports, estimating the amount of a substance found in the blood sample and, for a time, NMS witnesses opined about the impairing effects of substances which they found, but NCSCL has advised them not to do this. A Pharmacologist could look at this quantified data and say whether the dosage is commensurate with a therapeutic dosage or not, and even testify to the impairing effects. If the Certifying Scientist intends to give testimony about the impairing effects, per N.C. Gen. Stat. 15A-903 and Rule of Evidence 702, that opinion would need to be disclosed in their report and they would need to have pharmacological training to support that testimony.

The NMS Labs also uses a different sort of spectrometer to analyze their samples. The NCSCL uses a Gas Chromatography Mass Spectrometer (GCMS), an instrument that passes an ion beam through a gas and detects the energy changes in the substances found in the gas taken from the sample. NMS Labs uses a Liquid Chromatography Mass Spectrometer (LCMS). The NCSCL also uses this instrument to perform some toxicology analysis. These techniques produce the same sort of data and are both considered confirmatory tests, but the procedures and instruments used are quite different.

Does NMS have to turn over their lab packet?

In some cases a 3-4 page summary report is turned over to the defense. This is not the entire lab packet. NMS Labs also produces a “litigation packet” that typically is several hundred pages long. The summary report does not contain sufficient information for counsel to understand what tests were performed and whether they were performed correctly. If the case is within the original jurisdiction of the Superior Court, the rules of discovery apply and you would be entitled to the lab packet through discovery. If the case is within the original jurisdiction of the District Court, you can ask the judge to order the prosecution to turn over a copy. If the witness relies on his or her report during testimony and it is not turned over until then, it would be extremely time-consuming for counsel to attempt to review it at that time. In some jurisdictions, the litigation packets are being turned over in District Court prior to trial.

This packet is huge and really hard to understand.

Yes, that does seem to be the way of things. It is hard to imagine that this packet was designed with the purpose of giving the reader easy access to the relevant information. Their reports typically spend a lot of time identifying the presence of many metabolites of a substance. These are just the indicators of the substance being present and metabolized, not additional substances. Additionally, metabolites can be active or inactive, meaning that some metabolites have no impairing effect, and could even indicate a lack of impairment.

If you have any concerns about how a drug is metabolized, or what a drug’s metabolites are, LabCorp has a rather comprehensive guide to the metabolites of Benzodiazepines and Opiates.

If you need a starting point for the effects of a certain substance on a human who has ingested it, the NHSTA has Drug and Human Performance Fact Sheets on 16 different commonly used drugs — including cocaine, cannabis, methadone, Valium and Ambien — prepared by pharmacologists to describe how average humans are impacted by drug usage. These models are based on normal, healthy humans, and any increased tolerances or other reasons why the model does not fit your client should be discussed with an expert.

It is highly advisable that, at this time, that you get an expert to review the data with you after you get the packet. One easy to spot problem is if the data representation where the x-axis is time and the y-axis is signal intensity, the peaks do not touch the bottom of the graph, that is a pretty serious problem. Since NMS provides the quantity of the substance, if they cannot accurately tell where the substance they are analyzing begins or ends, they cannot have much accuracy on the quantity they are saying is present.

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Free Workshop: Forensic Technology and the Impact on Frye and Daubert Standards

The Forensic Technology Center of Excellence (FTCoE) at RTI International, Duquesne University, and the Allegheny County Medical Examiner’s Office are holding a workshop in Pittsburgh, PA on August 9th & 10th, 2016. The workshop will focus on information a likely to show up in cases involving forensic evidence, the technologies behind that evidence, and the impact of the Frye and Daubert standards for admissibility of expert testimony.

The legal profession strives to have a better knowledge of the scientific principles and technologies employed in forensic evidence analysis. Forensic practitioners and scientists have been actively developing methodologies and innovative technologies to analyze evidence. In turn, professionals in the criminal justice system who are responsible for making legal decisions must have an understanding of these technologies and the impact of Frye and Daubert standards on the admissibility of testimony about these technologies.

Criminal court judges, prosecuting and defense attorneys, and legal academicians are encouraged to apply. Space is limited to 25 attendees and nominations are required. The deadline for nominations has been extended to July 22. The FTCoE will provide workshop registration, airfare, lodging, and per diem expenses for all attendees. A Certificate of Completion will be provided to document two days of continuing education.

For more information, please visit the Forensic Technology Center of Excellence website for the event.

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Language Matters: USDOJ’s Reporting Language and Testimony Guidelines

Forensic scientists are tasked with the job of explaining often complex scientific data to judges, jurors, and attorneys who may have little understanding of the science underlying the forensic analysis in a case.

Revelations in recent years that hair analysts provided testimony that had no scientific validity has highlighted the importance of using correct language to convey information about forensic analysis and its limitations. Several wrongful convictions have been overturned based on faulty testimony about hair evidence and a massive review of hair cases is ongoing.

In an effort to improve expert testimony, the U.S. Department of Justice has released proposed guidelines called the Uniform Language for Testimony and Reports. These guidelines, once finalized, will apply to all USDOJ personnel who issue reports or provide expert forensic testimony, and they will probably be viewed as best practices for the entire forensic community. The guidelines are currently accessible at https://justice.gov/dag/forensic-science, with the public comment section running through July 8, 2016.

Attorneys should be aware of these guidelines and be prepared to object to any lab report language or testimony that does not comply. For example, the Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline provides the following guidance on what experts cannot say about their evidence: (1) they cannot state that two prints originate from the same source to the absolute exclusion of all other sources; (2) they cannot state that there is any statistical level of certainty attributed to their determination; (3) they cannot testify that their science is infallible. Similarly, for the testing of bodily fluids, analysts may not state or imply that a level of numerical certainty is calculated to support the identification of blood or semen (i.e., they cannot say they are 95 per cent confident that the stain contained blood or there is a one in a hundred chance that the stain was something other than semen) and may not state or imply that the methods used in performing serological examinations have error rates of zero or that they are infallible. For drug analysis, the guidelines specify that when no sampling plan was used and no reasonable assumption of homogeneity of an item was determined, the examiner may not report or state an opinion that the conclusions apply to the entirety of an item (or a percentage of the item). This limitation is important in pill cases where only one pill is tested.

So, if you have any suggestions about appropriate limitations for expert testimony, or the language they should use in reports, please take the time to provide feedback on these documents.

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Forensic Evidence Errors in Arson Investigations and Crime Scene Processing

Paul Bieber (Director at Arson Research Project: http://thearsonproject.org/research/) explores the misidentification of an accidental fire as an act of arson and how unreliable, quasi-scientific techniques led to the mistaken execution of an innocent man. On June 30th, join the UNC School of Government and the North Carolina Office of Indigent Defense Services for the seventh installation in the Evenings at the School of Government series, Beyond Willingham: Recognizing Errors and Crafting Solutions in Fire Investigations. The program provides one and a half (1.5) CLE credit hours and is designed to enhance the knowledge of all criminal law practitioners, not only in understanding the investigative techniques used, but in raising challenges to that evidence.

Location, Date, and Time: Thursday, June 30th, 2016 at the UNC School of Government room 2603. Sign-in begins at 5:15pm, the program begins at 5:30pm, and is set to conclude by 7:00pm.

RSVP: Registration is not required, but we ask that you RSVP via email to Monica Yelverton, at myelverton@sog.unc.edu.

Materials: Materials for this program are forthcoming and will be available on the program website http://www.sog.unc.edu/courses/evenings-school-government under the materials tab. Those who RSVP for this event will receive a confirmation email on June 23, 2016 with a link to the program materials. Please note that the materials will not be provided in hard-copy form at the program. We recommend that you either bring a laptop to access the materials electronically or bring a hardcopy.

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Crime Laboratory Essentials Webinar

Take a tour inside a state-operated crime lab with Professor Carol Henderson, Director of Stetson’s National Clearinghouse for Science, Technology, and the Law (NCSTL); Ann Talbot, the director of the Metro Nashville, Police Department Crime Laboratory; and Christine Funk, a criminal defense attorney with over 20 years of practice experience.

Crime Laboratory Essentials is a webinar provided by the Capital Litigation Initiative: Crime Scene to Courtroom Forensics Training series funded by the US Department of Justice. This seminar follows all the steps of forensic analysis for the five core disciplines of Forensic Science: latent fingerprint analysis, firearms, forensic biology (DNA analysis), drug identification, and toxicology. The free archived version of the webinar is available via the link above.

Using evidence from a mock crime to show the lab procedures and machinery used, this webinar takes you step by step through how each of these five sorts of evidence is tested. The panelists also provide additional information about each of the techniques by responding to questions from the audience. If you have a question about how a lab operates, from chain of custody, to testing, to post-trial evidence storage, this webinar has answers.

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New Research on “Touch” DNA

As the sensitivity of DNA analysis increases, scientists are able to develop profiles from ever-smaller samples of DNA. This has lead to testing of a wider array of samples collected from crime scenes, including window panes, bullets, hats and other clothing, cigarette butts, and many other items.

Attorneys sometimes ask me about the likelihood of obtaining a useful DNA profile from certain items of evidence. A study from six European forensic laboratories may give some idea of how likely it is to find a DNA profile on items commonly found at crime scenes. This article contains an interesting chart that lists the item and the likelihood of finding a full profile, usable partial profile, possibly usable partial profile, or no profile. It seems best to use this type of information as a rough guide, but it is interesting nonetheless.

It is important to keep in mind that as labs are able to analyze smaller amounts of DNA, the possibility of developing partial profiles and complex DNA mixtures increases. Where very small amounts of DNA are involved, the sample may have been deposited by secondary transfer. Here’s an interesting article on secondary transfer and “touch” DNA.

Attorneys should be aware that forensic laboratories may have case submission guidelines that limit the number and type of items that may be tested by the lab. To understand why and how an item was tested (or not), it is important to read the lab’s policies and guidelines. Here is a link to the North Carolina State Crime Lab’s Evidence Guide. There is information about Touch DNA testing on p. 52.

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Reliability Concerns Regarding Probation Drug Screens

The NC Department of Public Safety (DPS) has begun relying on less accurate presumptive testing for urine screens for drugs for probation, prison, and DSS cases. The focus of this post will be probation cases, though the testing is the same for prison and DSS cases.

Testing Prior to 2014

Until February 2014, the Department of Public Safety maintained two laboratories with trained staff and EMIT analyzers (an immunoassay test) to run either initial testing or additional testing on urine that gave a positive result on an screening test. These labs tested approximately 125,000 samples per year. The North Carolina State Crime Lab uses similar equipment to the former DPS labs for presumptive toxicology testing.

Current Drug Testing Procedures

The DPS labs were closed in early 2014. On-site urine drug screening is now performed by probation officers using a presumptive test kit similar to the type of urine dip test that can be purchased over the counter at many stores. Currently, additional testing is completed by Norchem, a private lab in Arizona, only when the test subject immediately denies use of a controlled substance. If the test subject admits use, the urine specimen is discarded and a positive result is reported (See NC DPS Division of Adult Correction and Juvenile Justice – Community Corrections – Policy & Procedures – Chapter H – Section .0400 Substance Abuse Screening Program, available at https://www.ncdps.gov/div/CC/Publications/Policy.pdf, p. 367, subsection (i)). Because the urine sample is discarded, if the test subject later denies use, the sample cannot be re-tested using more reliable methods.

Reditest and the Need for Confirmatory Testing

The Reditest Panel Dip Test (“Reditest”) is the on-site screening test currently used by probation officers. The Reditest is one of many presumptive test kits which are intended to screen for drugs in urine. The Reditest package insert which describes how to use the product states in its “Limitations” section that the test “provides only a preliminary analytical test result. A secondary analytical method must be used to obtain a confirmed result.” The instruction card for a similar product can be found here. The instructions note that gas chromatography/mass spectrometry (GC/MS) is the “preferred confirmatory method.”

Reditest and Lack of Validation and On-Site Quality Assurance and Quality Control

Reditest recommends but does not provide “positive and negative controls to be tested as good laboratory practice to confirm the test procedure and to verify proper test performance.” Reditest kits are not being validated by the end user in North Carolina. If batches of test kits are not validated, there is no check on the accuracy of kits being used in the state. Immunoassay testing performed by the DPS labs prior to 2014 revealed that on several occasions the on-site test kits shipped to probation and other offices did not work as expected and yielded either inaccurate or uninterpretable results.

To administer the Reditest, a provider dips a portion of the card in a urine sample for 15 seconds. Five minutes later the results can be obtained. The card should have a control line appear in each testing area. If any line appears in the testing section (no matter how faint), the results are negative for that screen. If a line does not appear in the testing section, the manufacturer’s website explains how to send the sample to a laboratory for confirmatory testing. Administration of these presumptive tests by probation officers instead of individuals with scientific training further complicates the potential for incorrect results.

False Positives with Reditest

Included on the package insert are a subset of clinical studies which demonstrate the preliminary nature of the test. Agreement with GCMS, a more accurate confirmatory test, ranged from 89%-99%. The numbers demonstrate the possibility for false positives. In tests such as these, a false positive is typically caused by a legal substance which the kit confuses with an illicit drug. Most commonly this involves over-the-counter medications. For example, some kits will register pseudoephedrine as methamphetamine. The FDA also notes that results from these types of tests can be affected by how the test was performed, how the urine was stored, what the person ate or drank before taking the test, and any other medications the person may have taken.

Admissibility of Screening Test Results

In State v. Carter, 765 S.E.2d 56 (N.C. App. 2014), the N.C. Court of Appeals held that field drug test kits, which are presumptive tests, are inadmissible due to their lack of reliability. The Court noted that for testing of controlled substances to be admissible, it “must be based on a scientifically valid chemical analysis[.]” To establish that a test is admissible, the party must present evidence that the test methods are sufficiently reliable. Results of these initial tests without confirmatory testing should not be admissible and should not be sufficient for the basis of revocation of probation.

Screening Tests and Workplace Testing

Use of the Reditest would not meet federal guidelines for workplace testing. The U.S. Department of Health and Human Services (HHS) 2015 Mandatory Guidelines for Federal Workplace Drug Testing requires that an initial drug test be an immunoassay or alternate technology, such as spectrometry or spectroscopy. (Section 11.9, Available at https://www.federalregister.gov/articles/2015/05/15/2015-11523/mandatory-guidelines-for-federal-workplace-drug-testing-programs#p-426) An HHS-certified laboratory must validate an initial drug test before testing specimens. (Section 11.9) Initial test results must be confirmed by an analytical method that uses mass spectrometric identification. Such methods include gas chromatography/mass spectrometry (GC/MS), liquid chromatography/mass spectrometry (LC/MS), GC/MS/MS, LC/MS/MS] or equivalent. (Section 11.12) Only specimens that yield a positive result on initial and confirmatory tests are reported as positive results. (Section 11.17)

In North Carolina, the testing used to allege a probation violation, revoke probation or remove a child from a parent’s custody would not qualify as even an initial test in the federal employment context.

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