Forensic Toxicology & Drug Chemistry for Defense Attorneys

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Forensic Toxicology & Drug Katherine Sato Office of the Ohio Public Chemistry for Defense Attorneys Defender Introduction

Outline of Alcohol/OVI Testing Presentation

Drug Field Testing

Drug Chemistry for the Defense Forensic Chemistry

Forensic Toxicology Various Fields May Apply Pharmacology

Pharmacogenetics and Pharmacokinetics Forensic Chemistry

The application of analytical techniques in a legal setting for the purpose of identification of unknown chemical substances Forensic Toxicology

Employs the analytical techniques of chemistry for the detection of drugs, toxins, and/or pharmaceuticals in biological samples Pharmacology

Both the overt effects of biologically active chemicals and the mechanism by which these chemicals interact with each other and biological targets Pharmacokinetics Pharmacogenetics Expert Testimony Cross-discipline fields → may need multiple experts

Who Can May need to circumscribe an Testify? expert’s testimony

Right to confrontation Melendez-Diaz v. Massachusetts (2009)

SCOTUS: defendants have a right to confront laboratory analysts

Held: 1. Analysts’ certificates of analysis are testimonial statements; 2. Analysts are not removed from coverage of Confrontation Clause 3. Defendant’s ability to subpoena analyst did not obviate State’s obligation to produce analyst for cross-examination Melendez-Diaz v. Massachusetts (2009)

“Nor is it evident that what respondent calls ‘neutral scientific testing’ is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, ‘[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.’ * * * And ‘[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.’ A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.” R.C. 2925.51

In any criminal prosecution, a laboratory report from BCI (or other accredited lab) stating: 1. That the substance has been weighed and analyzed; 2. The findings as to the content, weight, and identity of the substance; 3. That it contains any amount of a controlled substance; and 4. The number and description of unit dosages

Is “prima facie evidence” of the content, identity, and weight of the substance. State v. Pasqualone (OSC 2009)

When the state has complied with its obligations under R.C. 2925.51, a defendant’s failure to use the procedures of R.C. 2925.51(C) to demand that a laboratory analyst testify constitutes a waiver of the opportunity to cross-examine the analyst at trial and allows the analyst’s report to be admitted as prima facie evidence of the test results. Bullcoming v. New Mexico (2011)

“We hold that surrogate testimony * * * does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

“SLD analysts use gas chromatograph machines to determine BAC levels. Operation of the machines requires specialized knowledge and training. Several steps are involved in the gas chromatograph process, and human error can occur at each step.” “Drug Recognition Experts”

• Made up field/ mostly nonscientists • One week-long training and they claim to identify whether a person was on PCP vs. heroin • Challenge on scientific basis for their observations • Do not have knowledge of how drugs affect the human body Forensic Toxicology Metabolism

• The whole range of biochemical processes that occur within a living organism • Consists of anabolism (the buildup of substances) and catabolism (the breakdown of substances) Metabolism

• Enzymes convert drugs into metabolites • Metabolites may be therapeutic, harmful, or inactive • Cannot use metabolites as indicator of impairment (not psychoactive) • May need expert in pharmacokinetics (to determine how quickly individual metabolizes specific drug) if when the person took the drug is important Half-Life Metabolism of Cocaine Blood Urine Can determine impairment Cannot determine impairment Varies less by individuals Individual variation More invasive Less invasive, more common

Blood vs. Urine Detection Post-Collection Changes

• If a toxin is in the urine, it will stay there if properly stored • Not going to continue breaking down • Some exceptions (e.g., if someone has a lot of sugar and yeast in the urine, could change to alcohol after it leaves the body while stored) AG’s Guidelines Hair Testing

• As someone is exposed to drugs, the actively growing hair will sequester some of the drug • Once drugs deposited in hair shaft, remains part of hair indefinitely • Drugs are deposited in the root and then continue down the hair as it grows • Normally collect about 3 cm Alcohol/OVI Testing Standardized field sobriety tests Types of OVI Field Tests

Intoxilyzers Standardized Field Sobriety Tests

Three tests used in combination to determine intoxication: 1. Horizontal Gaze Nystagmus (HGN) – involuntary eye movement 2. Walk-and-Turn (WAT) – divided attention activity 3. One-Legged Stand – divided attention activity

Should only be used for alcohol, not proper for marijuana or any other drugs National Highway Traffic Safety Administration (NHTSA) found that, in determining whether a subject’s BAC was .10 or above: Reliability of • The HGN by itself was 77% accurate • The Walk-and-Turn by itself was 68% Standardized accurate Field Sobriety • The One-Leg Stand by itself was 65% accurate Tests • The HGN and WAT in combination were 80% accurate

One study found 24% false positive results Intoxilyzers

• Device that measures ethanol expelled from the lungs • Used alone or with SFSTs • Blood alcohol concentration (BAC) is then estimated from breath alcohol concentration (BrAC) using a generalized ratio of BAC:BrAC = 2100:1 • Can vary by individuals • No evidence this specific equation applies to your client • Range in calculation could be the difference between BAC of .079 and .08 • Requires 15- to 20-minute waiting period Assumes partition ratio of 2100:1

One breath sample

Intoxilyzers: Calibration Potential Errors Temperature

Non-selective

Sample destroyed Discovery Request for Intoxilyzers

Calibration All solutions used to information calibrate the machine

Margin of error of all Maintenance of the solutions used to instrument calibrate the machine R.C. 4511.19(D)(1)(b)

• “In any criminal prosecution or juvenile court proceeding for [OVI], the court may admit evidence on the concentration of alcohol * * * in the defendant’s * * * breath * * * at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation.”

• “The bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health * * *” State v. Vega (OSC 1984)

Because the legislature provided for the admissibility of intoxilyzer tests if analyzed in accordance with methods approved by the director of ODH, an accused may not present expert testimony attacking the general scientific reliability of approved test instruments. Cincinnati v. Ilg (OSC 2014)

The approval of a breath-analyzer machine by the director of the Ohio Department of Health does not preclude an accused from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of a specific test result or whether the specific machine used to test the accused operated properly at the time of the test. Retrograde Extrapolation

Can someone reliably estimate the amount of alcohol ingested from a single measurement of a person’s blood alcohol concentration (BAC)? Blood-Alcohol Curve Widmark Formula People v. Floyd (IL 2014)

“A retrograde extrapolation calculation based on a single breath test, and when many of the factors necessary to determine whether the defendant was in the elimination phase are unknown, is insufficient to provide a reliable calculation and invites the jury to determine guilt on an improper basis. Based on the specific circumstances presented in this case, we believe that the prejudicial effect of the retrograde extrapolation calculation substantially outweighed its probative value and that the trial court abused its discretion in admitting it.” State v. Armstrong (NV 2011)

The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. Drug Field Tests Video Reliability of field tests

Differential Issues? treatment

Plea bargain process Drug Color Test Kits Drug Color Test Kits in the News Best Practices in Positive Drug Color Field Test Cases

• Give notice to preserve evidence and subsequently move for confirmatory testing • Assist clients to mitigate the consequences of jail time while they wait • Consult with client on the lasting consequences of a felony conviction (compared to the immediate reward of pleading and getting out of jail) • Keep track of all cases where confirmatory tests in jurisdiction show no controlled substances present • FOIA requests or subpoenas to get data on what is known about false positive rates Drug Chemistry for the Defense Types of Laboratory Testing

Potential Errors in Testing Drug Chemistry for SWGDRUG Recommendations the Defense Accreditation Process

Documents to Request Types of Laboratory Testing

Gas Chromatography/ Mass Spectrometry (GC/MS)

Liquid Chromatography/ Mass Spectrometry (LS/MS)

Thin Layer Chromatography (TLC)

Color Tests Gas Chromatography/ Mass Spectrometry (GC/MS) Liquid Chromatography/ Mass Spectrometry (LS/MS) Thin Layer Chromatography (TLC) NIST Mass Spectral Library

• One of the world’s largest and most widely used database of organic compounds • Provides mass of more the 265,000 compounds • “When you line up the fragments in order of their mass-to-charge ratio, you get the molecule’s distinctive ‘mass spectra,’ which looks like a barcode and functions like a fingerprint.” NIST Mass Spectral Library Potential Errors in Laboratory Testing of Controlled Substances 2009 NAS Report

“Some laboratories might mention the tests that were conducted, but in most cases the spectra, chromatograms, and other evidence of the analysis and the chemist’s notes are not submitted. Likewise, possible sources of error and statistical data are not commonly included. From a scientific perspective, this style of reporting is often inadequate, because it may not provide enough detail to enable a peer or other courtroom participant to understand and, if needed, question the sampling scheme, process(es) of analysis, or interpretation.” (135) PCAST Report

“One analysis estimated that at least fifty major laboratories reported fraud by analysts, evidence destruction, failed proficiency tests, misrepresenting findings in testimony, or tampering with drugs between 2005 and 2011. Twenty-eight of these labs were nationally accredited.” (33, fn60) Massachusetts State Drug Lab Scandal

• http://www.nbcnews.com/nightly-news/video/20-000-convictions- dropped-after-massive-drug-lab-scandal-923957827606 Incompetence/Negligence

•Sample contamination •Erroneous calculations •Failure to calibrate instruments •Lack of proper education and training

Potential Fabrication/Deception Errors in •“Drylabbing” Laboratory •Destruction of records to cover-up negligence Chemical Bias •Receiving extraneous information about samples → Analysis observer bias •Pressure to produce findings favorable to law enforcement

Incomplete/Misleading Reports

•Failure to state the testing performed and procedures used Carryover

• If the concentration of the analyte is too great, it will carry over from previous samples • Cocaine gives a very large response with minimal amount of sample • NSAIDS (ibuprofen, naproxen, etc.) and THC carryover into several samples • Need to run these tests last • Run several blanks after them SWGDRUG Recommendations Specific Provisions of SWGDRUG Accreditation Process

• Inspectors come into lab, spread out into different sections, and take notes (basically an audit) • The lab is on notice of the inspection • Inspectors ask permission from the lab technicians to give them files • Head of inspection team writes report using individual inspectors’ notes Accreditation Requirements

• Accrediting agencies not looking at science; rather, looking at whether written procedures in place, whether there are quality control procedures • Any new accreditation must be based on ISO 17025 (international organization) • There are some legacy accreditations prior to ISO standard (suspect) • ANAB National Accreditation Board • ASCLD/LAB American Society of Crime Laboratory Directors/ Laboratory Accreditation Board Documents to Request from Accredited Lab

1. Preliminary Assessment Report • What inspectors found when they went in the lab • What rules or regulations were violated (e.g., failure to fully explain procedures so others can replicate process, failure to record key information, failure to perform tests, failure to follow lab manuals and procedures) • Request to correct violations 2. Corrective Action Request (CAR) • Lab’s response to preliminary assessment report • Admission to violating specific rules or regulations (usually in memo form signed and submitted by section chief) • Explains how the lab will make changes 3. Final Assessment Report • Acknowledge changes to known violations Documents to Request from Accredited Lab

4. Laboratory Information Management System (LIMS) Printout • Computerized system to track cases • Computer printout will reveal whether anyone changed the conclusion from the technician assigned to the case • Computer printout will also reveal whether evidence was misplaced for a while 5. Quality Manual • Any laboratory accredited by certain organizations must have a quality manual (if not, in violation of accreditation) • Ask for quality manual to determine what policies, procedures the lab has prescribed for themselves Documents to Request from Accredited Lab

6. Nonconformity Reports • A document stating when two technicians/analysts in a lab disagree (e.g., technician A finds a match, technician B finds it inconclusive, supervisor rules it a match) • Discoverable under Brady, but State usually doesn’t understand meaning of the report • Can request all nonconformity reports for a specific technician over the past several years • Must be made even if final report never issued • Would also be referenced in LIMS 7. Root Cause Analysis (RCA) • Whenever a nonconformity occurs, lab must look into it further to make a recommendation as to how to resolve the problem in the future Documents for Specific Instrument/Analyst

• Standard Operating Procedures for specific instrument • Instruction manual for instrument • Instrument calibration data • Quality control data • Precision studies of the procedure and instrument • Interference studies of the procedure and instrument • Validation studies of the procedure and instrument • Results of all samples analyzed with this instrument and procedure on the date of testing • Training of all lab analysts on this procedure and instrument • Inspection/maintenance reports • Margin of error of this analysis with supporting documentation/studies • Any false positives • Discrepancy reports • Personnel records of individuals that performed testing • Proficiency testing of analyst Katherine Sato Questions? Assistant State Public Defender, Comments? Juvenile Department [email protected]