METH LAB PROCEDURE CHALLENGED

Several Area Counties Take Sample Of Drug, Destroy Rest Of Evidence

MIAMI, Okla. - The handling of methamphetamine laboratory materials by the
Ottawa County sheriff's office has become an issue after a local defense
attorney cited what he says is a discrepancy in state law. A prosecutor
says the problem is in the interpretation of the statutes.

The dispute focuses on the storage or destruction of hazardous and toxic
materials and contaminated equipment used in making the illegal drug.

During two recent preliminary hearings in meth lab cases, Ottawa County
Deputy Scott Graham, who is on the district attorney's drug task force,
testified that evidence had been photographed, then destroyed.

Defense attorney Kenneth Wright says the photos do not have the same legal
weight as the evidence itself, and that the law requires that the evidence
be kept until after trial.

Sheriff Dennis King and his deputies say the evidence is toxic and
hazardous, and that they could face legal action by the Environmental
Protection Agency, the Occupational Safety and Health Administration and
state health officials if it were stored locally.

King met Monday with the Ottawa County Commission and David Anderson,
assistant district attorney, to discuss the matter.

Anderson acknowledged that there is "a technical discrepancy in the
black-and-white letter of the laws, but until now the courts and law
enforcement have dealt with it on a common-sense basis, recognizing that
toxic materials can't be brought into court."

He said he agrees with Wright that there is an apparent discrepancy in the
state law. It states at one point that evidence must be preserved "until
all legal actions have been exhausted," but it also gives the Oklahoma
State Bureau of Investigation authority to destroy the materials after
saving samples, which can then be used in court.

"As far as I've been able to find out, this has never been brought up in
the state before," Anderson said. "We may have to go ahead and test the
law, then let the Legislature take whatever steps it deems necessary to
remedy the situation."

Chris Morris, head of the district attorney's drug task force, said Monday
that Graham's earlier statements under oath have been misinterpreted.

"He said he destroyed the evidence, but neither he nor anyone on our staff
destroys meth lab evidence locally," Morris said. "We take samples, then we
send them and the rest of the materials to the OSBI. They keep the samples
for testing and destroy the surplus.

"We have to hold some samples here locally for a while, because the OSBI
can't test it until the case is going to court. They have an increasing
number of labs being busted and more materials they have to test."

Morris said the task force keeps samples at its office in sealed plastic
buckets that do not allow fumes or contaminants to leak. "That's the way we
and everyone else in the state does it, because there isn't any alternative
at this point," he said.

In the preliminary hearings at which Wright objected to the deputy's
submission of photographs rather than evidence or samples, Special Judge
Bill Culver overruled the defense attorney, saying that at the magistrate
level, where only probable cause has to be established, he will accept photos.

About 50 meth labs have been found in Ottawa County in the past year. The
district court's fall felony trial docket has 22 meth lab cases that could
be affected by the legal question.

Anderson, the prosecutor, said last week: "I don't see the discrepancy Mr.
Wright is alleging. To me, that would be like saying you have to bring a
dead body into the courtroom, instead of photos, to prove a murder case."
On Monday, though, he said the principle may have to be tested at trial and
in court appeals before the issue of lab storage or destruction is settled.

King, the sheriff, said Monday that he will not try to hold toxic materials
because of the high cost of building and maintaining an approved storage area.

County Commission Chairman James Leake said the county will not consider
buying or building any storage building for toxic and hazardous materials.
"That stuff is explosive and flammable and emits toxic fumes," he said.
"Our insurance rates would go right through the ceiling, and I don't want
us to have the legal exposure of trying to store that stuff safely."

These concerns are echoed by other law enforcement agencies in the region.

The Newton County (Mo.) Sheriff's Department does not keep the meth-making
equipment it confiscates after busting a meth lab.

Chris Jennings, the department's chief deputy and director of the Southwest
Missouri Drug Task Force, said: "We destroy the lab equipment because it is
hazardous. It is photographed and logged as evidence, and then destroyed.
That is what has been recommended to us by the federal Drug Enforcement
Administration.

"It's standard practice in a meth case. We get so much of that stuff that
if we don't destroy it, we would have a warehouse full of it."

Jennings said the practice of destroying meth lab evidence has not had a
negative impact on the prosecution of drug cases.

"To my knowledge, it has never been an issue," he said. "The judges don't
want this stuff packed through the court building."

Most cases involving meth labs are prosecuted in state court. When federal
authorities become involved in the closure of a large lab, the DEA brings
in containment trucks to dispose of the equipment.

"The DEA destroys it, too, because they classify it as a hazardous waste,"
Jennings said.

In Jasper County, Mo., Chief Deputy Jerry Neal said officers preserve a
sample of everything they recover from a meth-making operation, but the
rest goes to a special landfill where the highly toxic substances are
reduced to a nontoxic form and discarded.

"We used to have to call in the federal (DEA) to break down labs and
collect evidence, but now we have two guys trained to handle labs," Neal
said. "They take the samples to the MSSC crime lab for analysis, and the
bulk of the material is taken to a landfill where it is broken down to
inert substances."

Neal said the practice of entering samples into evidence instead of all the
material recovered has been approved by the Missouri Supreme Court.

He said having some physical evidence is still important because
photographs of the evidence are not enough.

"It's still important because everything must be weighed," Neal said. "If
you are dealing with meth or cocaine, weights are very important."

In McDonald County, Mo., Lt. Ozzy Amos, evidence officer for the Sheriff's
Department, said his department follows similar procedures, especially when
dealing with large meth-making operations.

Amos said if officers find meth that is only partially complete, they have
to send that to the lab to verify what they have.

The ingredients used in the procedure are sampled, and the rest is sent to
the same landfill Jasper County uses.

"All our evidence is stored in one location," Amos said. "It all depends on
the judge how much we keep. We normally keep everything until a judge signs
a disposition order."

Agencies are required to keep 1 pound of the substance for every 10 pounds
seized, and the sample taken must be large enough for the defendant to have
an independent test, said Trent Baggett, associate executive coordinator
for the Oklahoma District Attorneys Council. He said that beginning Nov. 1,
House Bill 2303 will allow law enforcement agencies to destroy materials.