We recently had a defendant report to community supervision for a drug test. After giving "his" sample he was asked to sign a form stating that it was in fact his urine that he gave for the test. He broke down and admitted to the CSO that he had used a whizzinator to foil the test and that his mother was on her way to hide/destroy said whizzinator. For those of you unfamiliar with the whizzinator you must check out the website at www.whizzinator.com.
These whizzinators are a menace to probation officers across the country! Anyway, the CSO confronted the mother and she returned the dildo-like whizzinator to the CSO stating that she didn't know what it was or what it was for. Yeah, right.
I am trying to decide how to charge the defendant. Certainly HSC 481.133- Falsification of Drug Test fits the crime, but it is only a Class B Misdemeanor. What about Tampering with Physical Evidence 37.09 which is a third degree?
(On an interesting side note, the Defendant admitted to using his aunt's urine with the whizzinator on a previous test that was positive for methamphetamines. What a nice family!)
To follow up on this old inquiry --
We've had ongoing issues with these falsification devices and are trying to decide whether their use can be prosecuted as F3 Tempering. My fear is that the doctrine of in pari materia would require prosecution under 481.133 as Class B Falsification.
Has anyone done the research to determine whether a Tampering charge would stand up?
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