I have a drug case and the analyst who did the testing no longer works for DPS and can not be located. My understanding of 38.41 is that the analyst has to fill out this affidavit. Their supervisor can not do it, can they? Any help would be appreciated.

Contact the Director of the Regional lab that did the original testing. They should be able to retest the sample if you cannot locate the analyst who did the original testing. Also, the regional director may know where that person is. If you still are up against a time barrier, call the Crime Lab Director, Ron Urbanofsky, in Austin. Or contact me (Office of General Counsel) and I can forward the information. I had exactly this issue come up this morning.

Janette Ansolabehere
DPS, Office of General Counsel

My assistant tried a case last week with the supervisor testifying without retesting the drug. There is a case on point but I'm at home so I can't give it to you. You do not offer the lab report you just have the supervisor review the results and give Their opinion. Worked greatonce the Judge had the case to guide her.

Actually, I'd really like to read that cite. Please post it when you get a chance.

Maybe the case Martha had in mind was Martinez, 22 S.W.3d at 508. But, that case does not answer all the questions involved. I believe the DPS is taking the position the drugs should be re-tested, which may take a long time at the Waco lab.

See Aguilar v. State, 887 S.W.2d 27 (Tex.Crim.App.1994) and Martinez v. State, 22 S.W.3d 504 (Tex.Crim.App.2000).

The best case for us (and most recent) is Ingram, 124 S.W.3d at 677.