Independent testing of blood for drugs or alcohol when a client is in custody

In some cases, an attorney needs a defendant’s blood to be collected for independent toxicology testing immediately after arrest and no specimen has been collected by the state. The presence of a controlled/impairing substance and its metabolites will dissipate within hours or days, so time is of the essence if an attorney wishes to have this evidence collected and tested. This is an example of why it is important to meet a new client as soon as possible. In a case where the defendant is in custody, it can be challenging to arrange for this collection in a timely manner.

Here are some steps that attorneys can follow to arrange the testing for a client in custody:

1. Consider the time frame within which the sample needs to be collected in order for the substance to be detected. Asking the client about the timing of ingestion, amount, and history with the substance may yield relevant information for determining whether testing should be done. For appointed cases, counsel can contact Sarah Olson for assistance in finding an appropriate toxicology or pharmacology expert who can offer guidance about how quickly a substance is metabolized and what type of testing will be most effective.
2. Identify a lab that can conduct the testing. The lab should be an accredited laboratory experienced in forensic testing. Discuss with the lab what type of testing to conduct and the type of report needed. Ideally the lab would be able to perform both screening (immunoassay) and confirmatory (GC-MS or LC-MS/MS) testing as needed, and be able to quantitate the amount present, if needed. The lab can provide specific information about what type of sample to collect, best practices for collection and labeling, how to ship the sample, and what the lab will do with the sample after testing. Request from the lab any documentation that you need to submit with the sample. If you need help identifying a lab for an appointed case, contact Sarah Olson.
3. Identify a registered nurse or phlebotomist who can travel to the jail to collect the sample. If you need help identifying a qualified health care professional for an appointed case, contact Sarah Olson.
4. Request funding authorization for the independent testing/flat fee services for appointed cases or by making an ex parte motion or making the appropriate request of the Capital Defender’s Office in a potentially capital case. This sample ex parte motion can be adapted.
5. Request that a court order be entered to allow a qualified health care professional to collect the sample from a defendant in custody, authorize funding for their work in an appointed case, and grant independent testing. This sample ex parte motion for sample collection and independent testing can be adapted. Counsel should also complete an AOC-G-309 Form or IDS-029 Form and submit it to the appropriate decision-making authority.
6. Each facility may have different requirements for sample collection. It may be worthwhile to inquire about those requirements prior to seeking the order. Counsel should be aware that law enforcement might contact the District Attorney’s Office about this request and should consider whether to draft the order in a way that anticipates it being shared with the DA’s Office and consider enlisting help from the DA’s Office to facilitate compliance as needed.
7. Provide the nurse/phlebotomist with a copy of the order and ensure that proper chain of custody is documented.
8. Arrange for shipment of the blood sample and your request as instructed by the lab using a trackable carrier, like FedEx or UPS.

IDS Forensic Resource Counsel Sarah Olson (sarah.r.olson@nccourts.org) can provide additional information.

Upcoming forensic evidence programs at Duke Law School

Duke Law School will host two forensic evidence programs in March 2019.

Getting Forensics Right: Strengthening the Connection Between Forensics, Statistics, and Law Ten Years After “A Path Forward”

https://law.duke.edu/events/scientific-evidence/

Wednesday, March 6, 2019 • 12:30 PM • Law School 3037

What are the stakes when forensics go wrong? Keith Harward will tell his story: he was exonerated by DNA testing, but spent 34 years in prison in Virginia for a murder he did not commit, based on multiple erroneous bite mark comparisons. Peter Neufeld, co-founder and co-director of the Innocence Project will join in the conversation. M. Chris Fabricant, who directs special litigation for the Innocence Project, will moderate. Prof. Brandon Garrett will introduce the panel. Lunch will be provided. The conference is made possible for the Center for Statistics and Applications in Forensic Science (CSAFE), and it is also supported by the Innocence Project. Sponsored by the Duke Wrongful Convictions Clinic and Criminal Law Society. For more information contact Prof. Brandon Garrett at bgarrett@law.duke.edu. Registration is not required.

Whiskey in the Courtroom – Evolving Trends in Forensic Science: Cognitive Bias in Forensic Science and in the Courtroom

https://law.duke.edu/ccjpr/symposium2019/

Friday, March 8, 2019 • 8:45 AM • Law School

Indigent Defense Services, the Duke Law Center for Criminal Justice and Professional Responsibility, and the Center for Statistics and Applications in Forensic Evidence are co-sponsoring the fifth annual CLE, “Whiskey in the Courtroom: Evolving Trends in Forensic Science.” Forensic science experts and attorneys who have litigated cases involving complex scientific evidence will present on a range of topics designed to help attorneys understand the latest trends in forensic evidence, limitations to this evidence, and legal challenges that can be made. This year the program will have a special focus on Cognitive Bias.

Attendees will pay $25 to cover the cost of food and parking. IDS will cover that cost for IDS employees. The program is expected to carry 6.25 CLE hours. If you want CLE credit, you will need to pay the NC State Bar the CLE fee of $3.50 per credit hour.

Registration is nearly at capacity. Sign up here.

New lab procedure to facilitate communication between attorneys and lab analysts

The NC State Crime Laboratory has put into place a change to its Document Management Policy that should help criminal defense attorneys of record who wish to speak to the persons at the Crime Lab who have worked on their client’s case(s).  The new procedure states:

4.6.1.1  Once a Case Record has been finalized, the employee may discuss the results of the examination and the record contents with the above listed individuals and the attorney of record for the defendant. Verification of the defendant’s attorney of record must be performed prior to release of any information by asking for the following information and recording it in the communication log: attorney’s name, agency or firm, phone number and/or email address, defendant’s name, and either the Agency or Laboratory case number.

This updated policy has been distributed to all Lab personnel. The Lab adopted this procedure to formalize their existing practice and to address communications issues brought to the attention of Ombudsman Sarah Jessica Farber in meetings with members of the defense bar. The opportunity to speak to a lab analyst prior to trial is invaluable to understanding the analysis performed in a case. All attorneys should take advantage of this opportunity!

As always, people can access the Crime Laboratory policies and procedures via the Sharepoint. Persons who do not have a login will need to create a free Microsoft account in order to do so, and can begin the process by sending an email to ISO@ncdoj.gov with “Request to Access Procedures” in the Subject line.