There is, perhaps, no more difficult charge to defend than a charge of operating a motor vehicle with a detectable amount of restricted controlled substance. This law prohibits the operation of a motor vehicle if one has any amount of a restricted controlled substance in his or her system. Restricted controlled substances are, generally, any of the controlled substances for which one may not obtain a prescription (marijuana, cocaine, heroin, etc.). In such cases, the state need only prove that the defendant was operating a motor vehicle on a public roadway; and, also, that there was some amount of restricted controlled substance-- no matter how small, and regardless of whether the substance in any way impaired the person's ability to drive safely-- in the driver's system. It is not usual for a person to be charged with this offense even though he has not smoked marijuana for as much as twenty-four hours.
In a garden-variety OWI case, there is always the argument that the defendant was not impaired by what he had to drink. In a restricted contolled substance case, though, this is not an issue. So what do you do? This article examines several strategies to attack the drug analyst in such cases.
Do not let the state rely on automatic admissibility of the test result
Because the charge of operating with a restricted controlled substance is contained in Traffic Code (Chapter 346, Wis. Stats.), Sec. 343.305, Stats. applies. Sec. 343.305(6)(a), Stats., provides, "Chemical analyses of blood or urine to be considered valid under this section shall have been performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses issued by the department of health services. The department of health services shall approve laboratories for the purpose of performing chemical analyses of blood or urine for alcohol, controlled substances or controlled substance analogs and shall develop and administer a program for regular monitoring of the laboratories." This subsection provides for the so-called "automatic admissibility" of the test result in traffic cases. In other words, if the State complies with this section, the result is admissible in trial without having to prove any evidentiary foundation. It is an evidentiary short-cut that prosecutors heavily rely upon. If not for this short-cut, in each case the State would be required to satisfy the requirements of Sec. 907.02(1), Stats., which requires that all scientific evidence and opinion testimony be, "based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case." (this is the so-called Daubert standard).
A carefully-guarded secret of the Wisconsin State Crime Laboratory is that there is no individual analyst in the State of Wisconsin who possesses a "valid permit" to conduct controlled substances analyses. The State does not issue such permits. The State only issues permits to alcohol analysts.
Thus, a controlled substance analysis is never entitled to automatic admissibility in a traffic case. It is a sure bet that the prosecutor will be thoroughly unprepared to prove the Sec. 907.02(1) foundation for the admission of scientific evidence.
Watch for "analyst substitution"
There seems to be a fairly high rate of turn-over in the state's crime laboratories. By the time a case is called for trial, it is not unusual for an analyst to have found other employment, and to not be available for trial. The prosecutors uniformly attempt to skirt this large problem by employing "analyst substitution"; that is, the State will call the laboratory supervisor to testify as to the work of the missing analyst. This strategy is based on several Wisconsin decisions, including State v. Williams, 2002 WI 58 (Wis. 2002) and State v. Barton, 2006 WI App 18, P10 (Wis. Ct. App. 2005). If you have an issue of analyst substitution, you must carefully read these cases, and you must understand the holdings. These cases do not stand for the proposition that a lab supervisor may simply parrot the test results of a missing analyst. The cases hold that one expert may render an independent opinion based upon data collected by others. However, in the case of a drug test, it is impossible for the supervisor to have an opinion that is independent of the underlying data (i.e. the result of the gas chromatograph). The death blow to the practice of analyst substitution, though, was finally delivered recently by the United States Supreme Court, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2536 (U.S. 2009). The Supreme Court condemned the practice of introducing "certificates" of drug testing in criminal cases. These "certificates" were, in effect, affidavits signed by the lab supervisor attesting to the fact that the drugs were tested, and were determined to be a certain controlled substance. Conceptually, there is no difference between these "certificates" and the "underlying lab data" at issue here.
Thus, a defense attorney must never quietly permit the prosecutor to employ analyst substitution. It is a gross violation of the defendant's confrontation rights.
Do not stipulate to, or overlook, the chain-of-custody
Defense attorneys have had it beaten into their heads in the past decade that flaws in the chain-of-custody go to weight, not admissibility. Some defense lawyers have simply stopped attacking the chain-of-custody. In a restricted controlled substance case, this is a huge mistake.
If you question the analyst, you will learn that once the blood sample is received at the laboratory, it is placed into a cooler; and there it sits-- sometimes for six months-- and it is not analyzed until the case is set for trial. This is simply a policy employed by the laboratory in light of the large back-log of analysis requests. They do not test a sample until there is a trial date. Although the laboratory itself has restricted access, the cooler within the crime lab does not have restricted access. In other words, anyone who works in the crime lab-- and the number is approximately twenty persons-- has access to the cooler every day of the work week. This is not a small breach in the chain-of-custody. A thorough cross-examination on this fact can set up a very persuasive closing argument on the weight that the jury ought to give to the blood analysis.
Know your organic chemistry
When you read the report from the crime lab, make sure you understand the findings. There are several so-called "active ingredients" of marijuana that qualify as a "restricted controlled substance" under the statute. The main active ingredient is Delta-9 Tetrahydrocannibinols (THC). However, upon ingestion, THC is very rapidly converted into 11 Hydroxy THC, which is also an "active" molecule, a restricted controlled substance. Carboxy THC, though, is not an active molecule, and, therefore, it is not a restricted controlled substance. The lab report will itemize each of these molecules. If the sample contains only Carboxy THC, this is not evidence of a detectable amount of restricted controlled substance at the time of driving.
In sum, these are difficult cases to defend; but do not simply punt. In many cases, your client will have been perfectly sober the time of driving, and his or her livelihood may depend on the outcome of the case. Attack the lab analyst in same way you would attack any of the State's critical witnesses.
Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 111 E. Wisconsin Avenue, Suite 1925, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.671.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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