Scientific Evidence Bloodwork

CRIME LAB REFUSES TO PROVIDE INFORMATION RELATING TO CHROMATOGRAPH USED FOR BLOOD-ALCOHOL TESTING

Kirschner & Garland, P.A. has uncovered a series of problems with the blood-alcohol testing program which is presently being litigated in the case of State of Florida v. Walter Rothe, pending in the Martin County Circuit Court, Case No. 05-1917-CFA. The potential problems have been identified via a series of subpoenas duces tecum served upon the Indian River Crime Laboratory.

There is presently pending before the court a Motion for Order Compelling Disclosure of chromatograms for unrelated cases tested during the same "batch". The Crime Laboratory opposes disclosure of chromatograms associated with any case other than the person charged. Thus, the Crime Laboratory has disclosed only validation and quality control chromatograms for the six months preceding the test at issue, as well as those chromatograms directly associated with this case.

The defendant's blood-alcohol test, as well as the test of a passenger on his boat, were run in a batch of twelve cases. The defense has already been provided with the hand-written blood-alcohol examination worksheets for each of the other ten cases. The defense contends that disclosure of each of the chromatograms underlying those ten cases is necessary to evaluate both the reliability of the chromatograph and the analyst's technique. A copy of the Motion for Order Compelling Disclosure is set out below.

Meanwhile, the defense has begun the process of serving a fourth subpoena duces tecum on the Crime Laboratory. This subpoena focuses on obtaining precise information on the hardware, hardware upgrades and repairs, software and software upgrades and patches. An evaluation of the chromatograph's performance cannot be made without the requested information. The fourth subpoena is in pdf format (click here) set out below behind the Motion for Order Compelling Disclosure.

"It was determined on August 23, 2006 by the Indian River Crime Laboratory's Proficiency Review Committee that a Class I discrepancy had occurred in regards to a routine proficiency test submitted by Criminalist Robert W. Parsons, Jr. The Criminalist reported a controlled substance was present in an item, when in fact no drug was actually present in this item. The analytical documentation was reviewed by the Criminalist and the Senior Criminalist (Chemistry Section Supervisor) to determine the source of the discrepancy. It was determined by the Senior Criminalist, and agreed by the Laboratory's Proficiency Review Committee that the discrepancy was related to a sampling/labeling error (human error) unrelated to analytical procedures.

A meeting was subsequently held on August 24, 2006...to further determine the impact of the occurrence. As a result of the meeting and after review of all pertinent documentation, the following corrective action measures were implemented:

• The Criminalist was removed from case work in this discipline.
• Five external proficiency tests were provided by an ASCLD/LAB accredited Forensic Laboratory, which are being administered to the Criminalist, and monitored in the same manner as regular external proficiency tests.
• Six weeks of remedial training will be coordinated by the Senior Criminalist.
• All drug cases from the last successfully completed proficiency test to the current failed proficiency test by this Criminalist are being re-analyzed by the Senior Criminalist.
• All corrective actions will be documented and maintained by the Quality Manager.
• The Laboratory reviewed its current policies and procedures regarding proficiency testing in an attempt to identify areas where improvements could be made to avoid a recurrence of a proficiency test error.

During the corrective action process as outlined above, a class II discrepancy was identified in one of the additional proficiency tests administered to the Criminalist. One of the samples contained a low level of controlled substance that was determined to be negative by the analyst.

As a result of this second missed proficiency, we have determined a systemic problem exists with this Criminalist and have altered our original corrective action program. Following are the amended corrective actions implemented by our laboratory effective October 27, 2006:

• The criminalist has been permanently removed from case work in this discipline and will be assigned other responsibilities in the laboratory.
• The remainder of the five external proficiency tests provided by an ASCLD/LAB accredited Forensic Laboratory has been aborted.
• The laboratory will continue to re-analyze all drug cases from the last successfully completed proficiency test to the current failed proficiency test.
• The State Attorney's Office has been notified of the second missed proficiency test.

Following accreditation policy guidelines on disclosure of non-compliance, the Indian River Crime Laboratory self-reported the inconsistencies to the American Society of Crime Laboratory Directors/Laboratory Accreditation Board Executive Director and to the chair of the ASCLD/LAB Proficiency Review Committee as well.

I have attached a list of controlled substance cases analyzed between July 1, 2005 and August 14, 2006 by Criminalist Parsons which are in process of re-examination or have already been reanalyzed."

Indian River Crime Laboratory

2502 S 35th Street, Building I

Fort Pierce, FL 34981