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24 Mar 2015

Lawyer Pokes Holes in Positive Pot Urinalysis

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Rodney Rockaway (not his real name) was arrested for DUI and possession of cannabis under 20
grams on 10/20/13 by the special investigations unit (SIU) of the St. Lucie County Sheriff’s Office
and by Officer Michael Acevedo of the Fort Pierce Police Department. Initially, Rockaway “went
with” the public defender’s office. Later on, he retained Jeffrey H. Garland on 2/25/14.

After obtaining discovery, Attorney Garland filed a motion with Judge Kathryn Nelson seeking to
obtain an authorization for issuance of a subpoena duces tecum to the laboratory for testing records.
Judge Nelson granted the motion on 5/2/14.

The laboratory was Wuesthoff Reference Laboratory, which is located in Melbourne, Florida. The
documents requested from Wuesthoff Reference Laboratory included the “laboratory procedure” for
cannabis testing. Page 7 of the provided materials explained that a single urinalysis is insufficient
to establish impairment:

A single positive urine does not mean that the person who contributed the specimen
was under the influence of marijuana at the time the specimen was collected. A
single positive test result only means that the person providing the specimen used
marijuana in the recent past and prior to collection of the urine sample.

The stop in this case was conducted by the SIU team. From past cases, Attorney Garland knew that
SIU is focused on drug detection and intervention. It was highly unlikely that the SIU team was
considering a DUI prosecution when stopping Rockaway’s vehicle. The SIU team gave two reasons
for the traffic stop: 1) that the license plate was “obstructed”; and 2) that a very strong odor of
marijuana was coming from the car as it was moving down the road.

Attorney Garland filed a motion to suppress, alleging that the initial stop was unlawful. Judge
Nelson would agree, at the 5/2/14 hearing, that there were no grounds for stopping the vehicle based
upon an “obstructed” tag. The prosecutor sought to justify the stop, because the tag had a bracket
around it which advertised the name of the dealer which sold the convertible vehicle. Attorney
Garland placed a photograph of the tag into evidence. The photograph demonstrated that both the
alphanumeric code and the registration sticker were clearly visible and unobstructed. The bracket
impinged only slightly on “MyFlorida.Com”, but the phrase could be easily read. The phrase
“Sunshine State” was mostly obstructed. Judge Nelson agreed that the bracket in this case did not
justify a stop under the requirements of Section 316.605(1), Florida Statutes. Judge Nelson agreed
that all required information was distinct and free from defacement, mutilation, grease or other
obscuring matter. Judge Nelson would have granted the motion to suppress on this basis. However,
Judge Nelson denied the motion for a different reason.

All three SIU detectives testified that they could smell the odor of burnt marijuana coming from the
open convertible as it was traveling down the road. Each detective, in turn, admitted that they did
not see any motions consistent with the smoking of canabis by either occupant of the vehicle, nor
was any smoking device found after the stop was conducted. Still, Judge Nelson found that the odor
of cannabis emanating from a specific vehicle was grounds to justify the stop of the vehicle. The SIU detectives offered no explanation how the odor of burnt cannabis could emanate from an open
convertible with no evidence of an ignition source or smoking device. The SIU detectives were quite
certain, however, that the odors of burnt marijuana did not come from any other vehicle, or any other
pedestrian, in the several block vicinity of travel in the hood, which the same detectives usually refer
to as a “high crime area”.

After the SIU detectives stopped the convertible, they conducted a “thorough search” of the vehicle.
Ordinary people might think that their car was being torn apart. Suffice it to say that such extensive
efforts disclosed a single, small particle of suspected cannabis. This particle was found on the
cluttered floorboard of the vehicle which was owned by the passenger, although it was being driven
by Rockaway at the time of the stop. This evidence was facially insufficient to establish proof of
possession of cannabis under 20 grams, because there were two people in the vehicle; the particle
of cannabis would have been difficult to identify as a controlled substance by ordinary mortals; it
was dark; and there were no admissions by either Rockaway or the passenger.

Under these circumstances, the SIU detectives called in Ofc. Acevedo who is known to be a DUI
officer with the City of Fort Pierce Police Department. Fortunately, Ofc. Acevedo video recorded
all of the roadside exercises. Although Ofc. Acevedo opined that Rockaway failed these “exercises”,
Attorney Garland was of the opinion that Rockaway did extremely well. The video does not,
unfortunately, display sufficient detail to evaluate Ofc. Acevedo’s claim that Rockaway failed the
horizontal gaze nystagmus test. Similarly, there was not sufficient video detail to determine whether
there was evidence of “visible eyelid tremors” or “body tremors”. Rockaway had admitted having
one alcoholic beverage earlier in the day. Rockaway also admitted smoking some marijuana earlier.

Based upon all these circumstances, Ofc. Acevedo placed Rockaway under arrest. At the SLCSO
jail, Rockaway blew .014 and .013. Both results were consistent with the statement Rockaway had
made about drinking an alcoholic beverage earlier in the day. Not to be detoured, Ofc. Acevedo
requested a urine sample which was sent to Wuesthoff Laboratory for analysis.

Via public records requests, St. Lucie DUI Defense Lawyer Garland determined that Ofc. Acevedo
was not certified as a drug recognition expert (DRE) at the time of this DUI arrest. Ofc. Acevedo did become certified as a DRE before this case was scheduled to be tried. The State was proceeding on the theory that Rockaway was impaired based upon the observations made by Ofc. Acevedo and the results of the
positive urinalysis.

Attorney Garland filed a motion in limine seeking to preclude the admission of urinalysis results
based upon the above-quoted information located at page 7 of the 51-page Wuesthoff litigation
packet. The motion in limine argued that the court should be required to conduct a pre-trial hearing
on the admissibility of the laboratory results; and that the laboratory results were not relevant,
because they did not establish that Rockaway was impaired by cannabis usage at the time of his
driving. The defense pointed out that there was no evidence of a bad driving pattern; that the
intoxylizer testing for alcohol was essentially negative, and that no marijuana smoking device was
found in the car.

Attorney Garland also moved in limine to exclude expert testimony of Ofc. Acevedo, because he was
not a DRE at the time of the arrest. The State maintained that his expert testimony should be
allowed, because he was DRE certified by the time of trial.

Based on all of these circumstances, the State agreed to drop the possession of cannabis charge and
to reduce the DUI charge to “dry” reckless driving. The matter was pled and sentenced on 9/8/14.

Comment

Laboratory testing is always subject to interpretation. When appropriate, the defense can move for
issuance of a subpoena duces tecum requiring production of the relevant laboratory records. These
records are often referred to as the “litigation packet”. Attorney Garland has worked many cases
with Wuesthoff Reference Laboratory. Attorney Garland has found Wuesthoff Laboratory to be
responsive to subpoenas and deposition requests. Indeed, Wuesthoff Laboratory personnel have been
conscientious to testify consistently with the laboratory’s written procedures. Defendants need to
be familiar with the laboratory procedures in order to independently evaluate the inferences which
might be drawn from the testing.

In Rockaway’s case, the laboratory results actually did not support the prosecution. The laboratory
results were, as it turned out, consistent with Rockaway’s claim that he had smoked marijuana earlier
in the day. The plea agreement recognized the evidence problems faced by the State in trying these
charges; and also recognized that Rockaway did not have the financial wherewithal to hire a defense
toxicologist.

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