In Bastrop, we rely on the DPS lab to analyze our drugs from arrests. Being that the lag time from the time of submission to receipt of lab results is often if not always in excess of 90 days, I'm wondering how other counties are handling this issue?
I am aware of several alternatives based on recent conversations with others.
1. One county indicts on field tests and submits to the lab. They allow the D to plead, if he so desires, prior to receipt of lab results and if the D waits to plead until after the labs are received, the only change to the rec is that lab fees are tacked on. This county retains drug samples until the sentence is finished.
2. I have been told, but am not personally aware of this, that some counties will allow a D and his counsel to waive indictment and they proceed to a disposition on an information. I have been told, and again I have not verified this, that these counties then withdraw the drugs from the lab before analysis is done and destroy them, allegedly pursuant to some kind of agreement between state and D.
I'd also like to mention two writ opinions from the Court of Criminal Appeals regarding drug cases. Both of these opinions were issued 9-17-14. I would also appreciate some discussion of how these cases merge with any solutions any counties have found to the backlog of drug cases awaiting lab results.
Please note this is not a complaint about DPS. I know that they and law enforcement and DA's offices are all in the same boat on this. Overwhelmed.
The first case, No. WR-81,358-01, EP Kendrick Mable, involves a D who apparently waived indictment or was indicted on FT results and took a two year sentence. The drug lab results were received after his plea and indicated that there were no illicit materials in the drugs,
The second case is similar. No. WR-81,823-01, EP Chad E. Johnson, again out of the CCA, which involves a D who pleaded, either by waiver of indictment or was indicted on FT results, to 4 years imprisonment and after the sentence, the lab results were returned and indicated a lesser weight than the charge that the D pleaded to.This message has been edited. Last edited by: GG,
We wait for the lab every time before indicting. The weight from the lab often comes back different then the weight from the arresting officers and it has made the difference between a State Jail and a F3 in some of our cases. I have found that the DPS lab in our area will expedite on certain cases if call the tech directly and ask nicely. Other then that we'll argue for a reduced bond rather than a P.R. bond if we feel strongly enough about a particular defendant.
We use the DPS lab also. We will typically indict based on a positive field test, but we no longer dispose of a case until lab results are back.
I learned the hard way that undoing a conviction is a lot of work. We had a fact pattern very similar to Mable that we had to undo.
I think its best to indict with a field test, convict with a lab result.
We indict on Field Test, but I cannot think of any case that actually went to judgement prior to having lab results in hand.
On a related issue however, recently a defendant on felony probation in a neighboring jurisdiction was arrested for PCS with a field test; We indicted, neighboring jurisdiction filed MTR and shipped defendant to State Jail (ignoring our hold); Labs came back negative so we dismissed and did not seek a bench warrant but notify neighboring jurisdiction and defendant's attorney here (different attorney in neighboring jurisdiction). I did not think about it again until the defendant, having served their sentence in State Jail, came by my office to ask about the status of the indictment. . .
Just one more issue to add to the stack!
Texas supposedly led the nation in exonerations in 2013, and it was due to these kinds of cases. There were at least 7 drug convictions undone in 2013 due to delayed lab results. ALL of them involved pleas. (After all, the defendants all thought they were buying/selling/possessing drugs, right? No one pays good money for fake dope.)
Keep that in mind next time your judge puts the squeeze on you to plead out a case before the lab results have returned.
In today's environment it would scare the heck out of me to have a defendant plead guilty to a felony offense without having a drug test from an accredited laboratory in my file.
That being said--obviously its not an ideal situation to have a defendant sitting in the county jail for 3 months while you await lab results.
We have been able to convince our commissioners' court and sheriff's department to create a line item to pay for drug testing. Any drug cases originating in the sheriff's department or with any task force containing members of the sheriff's department are sent to either the Tarrant County Medical Examiner's Office or IFL Laboratories (a private accredited lab) for testing. The costs of the test is around $90-$100 per sample. The turnaround time is two weeks instead of months. Note that IFL will charge an additional amount for coming to court to testify, should that be required. But with most cases ending in plea bargains and the use of affidavits under the CCP that is rarely required.
The costs are easy to justify. Each inmate costs the county about $40 per day to house and feed (and even that number is low based upon the contract amount to house inmates in other jails and the federal reimbursement rate for housing fed inmates in our jail). If we get an inmate out in several weeks instead of several months we are saving a substantial amount of money.This message has been edited. Last edited by: Robert S. DuBoise,
For the purposes of clarity of this thread, I want to amend part of my above post.
I did speak with prosecutors from the two counties that were cited to us that were pleading on information, then withdrawing the sample from lab analysis prior to analysis by agreement with the defendant. This procedure involves some sort of stipulation that the substance if tested would be an illicit narcotic and to the weight.
These counties are emphatic that this is a very rarely used procedure and that under no circumstances are they destroying the drugs once the drugs are returned.
I agree with Robert and others. The best course of action is to plead based on lab results. I also like Robert's suggestion about using a private lab, and then having the D pay the lab cost for the private lab just as they would for a DPS lab restitution.
I welcome all responses and appreciate greatly those who have responded to this question.
We handle them on a case by case basis ...kinda. If the defendant is out on bond, we will wait for DPS lab results before indicting. We do this not only to be sure but also because our District Courts move pretty fast (trial docket in 90 days or less). this is our preferable manner due to discrepancies in weights and increasing prevalence of "fake" drugs. We are also running into more and more "synthetic" or "analogues" that are not specifically in the drug schedules and that we can't prove are really analogues.
If the defendant is in jail and we are running up on the 90 days, we will indict with a field test where the weight is unlikely to be an issue (Police weigh drug in at 3 grams on a 1-4 case). If the weight is close, we have been known to indict for the lower amount if we feel we really need to get the case moving. We have ask our LEOs to always run a field test and to weigh drugs without packaging before they send them off to DPS.
FYI, this week's CCA hand-down list included three writs granted by agreement of all parties based on lab results being returned after a plea and sentencing, all of which exonerated the defendants for not possessing the illegal controlled substance for which they were convicted.
Last Friday, January 30, 2015, Harris County District Attorney Devon Anderson amended the office's policy manual by adding the following section:
10.4.1. AGREED PLEAS IN FELONY CONTROLLED SUBSTANCE CASES
(a) General Rule
Except as provided below, it is the policy of the District Attorney that a prosecutor shall not make a recommendation nor agree to entry of a plea of guilty or no contest in a felony controlled substance case before the identity and amount of the controlled substance has been confirmed by a crime laboratory. Positive results in field tests and other preliminary methods of identification are not sufficient confirmation to authorize the making of a recommendation or the entry of a plea in felony controlled substance cases.
(b) Exception – Defendants Receiving Community Supervision
If, under the facts and circumstances of a given felony controlled substance case, a prosecutor believes that it is appropriate to recommend that a defendant housed in jail receive a term of community supervision with no additional jail confinement as a condition of the community supervision, that defendant shall be allowed to enter a plea before the identity and amount of the controlled substance has been confirmed by a crime laboratory. This exception includes, but is not limited to, defendants convicted of state jail felonies listed in Art. 42.12, Sec. 15(a)(1), Code of Criminal Procedure (automatic probation in certain cases for defendants who have not previously been convicted of a felony, other than a felony punished under Section 12.44(a) of the Penal Code).
Under this exception, “today only” probation/deferred adjudication recommendations shall not be made. In short, defendants are not to be penalized for waiting to see the crime laboratory report before deciding to accept or reject an agreed plea offer.
Added, January 30, 2015
Our goal is to work with the local labs in an effort to have lab reports back within 30 days of filing. We are still evaluating our policy in regards to misdemeanor controlled substance cases, the vast majority of which are possession of small amounts of marihuana.
Thanks, Dick. My late father thought very highly of you, sir.
On a related note, how are people dealing with indicting synthetic marijuana? Indicting on a field test and pleading after results seems like a very reasonable strategy that covers the necessary bases while moving the case along. But with synthetics, there are no field tests that even give a preliminary determine of what the substance is. How are those 2 and 2-A cases alleged in your county before the drug tests come back?
Because the chemical structure of the synthetics changes on a daily basis, our officers do not on-view arrest for PG2A. We wait till we get a report from the laboratory. It's the only way in my opinion.
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