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In working on an update to the Predicate Manual, we are looking at adding the predicate for admission of blood and drug testing through the nontesting chemist. It does require use of the testing data and presents some difficulties.
Any other predicates anyone is looking to get added?
That's a really good question. I was annoyed when DPS threw the flood gate argument back at me, which is why this post was started. Hopefully, this isn't a big problem for everyone else, but if you confront it, let me know and I'll send you the brief I have arguing for allowing a TX expert to testify as to the blood sample using raw data.
I just got done with a trial where I used cgatewood's case law for the DPS analyst who reviewed but did not test the sample himself. The caselaw arguments took about 3 hours, the judge eventually let it in.
The jury was not the least bit worried about it. No questions were sent out about it, and no jurors commented on it at the end (and I talked with a few at length). I think it's one of those issues that is a big deal to lawyers, but not such a big deal to lay persons. They trust experts all the time...for example your surgeon will review preliminary tests by other people, rather than running all the tests himself. Noone thinks twice about the fact that the surgeon himself didn't do the EKG or whatever.
The analyst was very clear that the intstrument prints out the results and that he reviewed them right after the testing. The instrument would say it wasn't working properly if it wasn't, etc. He also said the method DPS uses is used across the country, so it may not be difficult for a texas analyst to say the way they did it out of state was acceptable..if it's the same procedures.
However, I also had a hospital blood draw and medical records (had to fight a Crawford / Melendez-Diaz objection there, too) and the DPS analyst would adamantly not comment on those results, other than to do a math conversion to grams per deciliter because he had no knowledge of their instruments, their specs, or their procedures (I don't think that's unreasonable,he had no way of knowing whether things were done correctly, other than the numbers were very similar to his). I would assume, though, that if DPS is sending the samples to a particular lab, they would be willing to say under oath that they approve of that lab's methods and procedures.
Thanks, cgatewood, for posting your research. You saved me hours, and it was successful.
Great!!! I'm excited to hear that your judge agreed on the argument. I imagined that the biggest issue would fall to the "weight" at trial. Congratulations on your win!
Pat Johnson, Deputy Assistant Director, Law Enforcement Support, Director--DPS Crime Lab, asked me to post this message regarding the outsourcing of testing to an out of state lab:
The Department of Public Safety Crime Laboratory Service outsourced approximately 1,000 samples to the National Medical Services (NMS) toxicology laboratory in Pennsylvania last year. This was done so that toxicology services by DPS to law enforcement agencies could be provided more promptly, and that goal was achieved by reducing the wait time to receive lab reports from DPS from over a year to around 60 days. The Pennsylvania lab was chosen because it was accredited (a Texas statutory requirement) and because no toxicology labs in Texas (or even close to Texas) could take the work. This outsourcing of forensic toxicology cases was a one-time solution to our backlog problem. The DPS Lab now has sufficient personnel and equipment to stay caught up in testing toxicology samples.
We regret the problems this has caused in the prosecution of cases where the analysis was performed in Pennsylvania, and would like to help. As a prosecutor plans for the trial of one of these cases, the DPS Crime Laboratory in Austin will provide a Forensic Scientist to testify. If the prosecutor will let us know in advance, the laboratory case file and examination records will be obtained from NMS, a DPS Forensic Scientist will review those records, and because the DPS lab follows nearly identical procedures, the DPS scientist can provide opinion testimony concerning the validity of the testing and results. If necessary, DPS will pay NMS for their lab records, as well as for the certified copy of the NMS laboratory report.
Note that no samples were sent from DPS to NMS for alcohol testing, but only for the analysis of drugs in blood or urine specimens.
If you have questions or need assistance, you may contact any of the following:
Deputy Assistant Director
DPS Crime Laboratory Service
Director Austin Laboratory
DPS Crime Laboratory Service
Toxicology Section Supervisor
DPS Crime Lab, Austin
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