STATE LAB MARIJUANA TEST ERRORS RAISE CONCERN

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.