In State v. Jones, __ N.C. App. __ (November 1, 2011), the NC Court of Appeals issued an important decision regarding the admissibility of NarTest evidence. NarTest is a private company that produces the NarTest NTX 2000 machine which has been used by local law enforcement in several cities and counties in North Carolina to test samples of suspected controlled substances. The NarTest machine uses a technique that is different from techniques used in crime labs. NarTest also has a lab located in Morrisville that tests samples of suspected controlled substances using methods of analysis similar to those used in state crime labs.
State v. Jones involves the testing of substances by a sheriff’s detective using the NarTest machine as well as the testing of the same substances at the NarTest lab by retired SBI analyst Trot Raney. The defendant argued that the testing performed by the detective using the NarTest machine and the testing performed by Mr. Raney in the NarTest lab failed to satisfy the first prong of the Howerton test which requires that the “proffered method of proof [be] sufficiently reliable as an area for expert testimony[.]” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458 (2004).
With respect to the substances that were tested by the detective, the Court held that the detective’s testimony regarding his use of the NarTest machine was erroneously admitted under the Howerton standard. Among the factors considered by the Court were that the detective “did not testify as to whether the NarTest had been recognized by experts in the field of chemical analysis as a reliable method of testing, nor did he compare the NarTest to other testing method currently used to identify controlled substances.” Jones at 8. Additionally, the detective “had been ‘trained to operate the NarTest, but he had no ‘professional background in the field of chemical analysis of controlled substances.'” Id. at 8-9. Finally, the detective “did not testify as to any independent research he had conducted, nor did he supplement his testimony with a visual aid.” Id. at 9.
Previously in State v. Meadows, 201 N.C. App. 707 (2010) the Court came to the same conclusion regarding this detective’s testimony, concluding that with respect to the detective’s testimony, the “expert’s proffered method of proof [is not] sufficiently reliable as an area for expert testimony” because the State failed to proffer evidence of indicia of reliability required by Howerton. Meadows at 712. Because the detective’s testimony in Jones was similar to his testimony in Meadows, the Court held his testimony was erroneously admitted. Jones at 9.
With respect to Mr. Raney’s testimony regarding the NarTest machine used by the detective, the Court also found that admission of that testimony was erroneous. In making this determination, the Court considered several factors: Mr. Raney’s testimony that the NarTest had not been licensed or certified by the Department of Health and Human Services or any other agency or department of the State; the fact that Mr. Raney had not conducted any independent research on the NarTest machine outside of his duties as a NarTest employee; that the State did not present any evidence that the NarTest machine had been recognized as a reliable method of testing by experts other than Mr. Raney; that the State did not point to any publications or research performed by anyone not associated with NarTest; and that the only visual aid used to support Mr. Raney’s testimony was a promotional video created by NarTest. Id. at 11-12.
Additionally, the Court found that admission of Mr. Raney’s testimony regarding the testing of the substances in the NarTest lab was erroneous. Recently in State v. McDonald, __ N.C. App. __ (Oct. 4, 2011) Mr. Raney testified while the NarTest lab was not independently accredited by any agency, the lab was licensed by the State of North Carolina and the DEA to perform analytical testing on controlled substances. Mr. Raney’s testimony regarding the testing in the NarTest lab was allowed. In Jones, there was no evidence introduced that Mr. Raney or the NarTest lab was licensed or accredited by any agency. Mr. Raney testified in Jones that in the NarTest lab he used chemical analysis protocols similar to those used by the SBI, and his testimony regarding chemical testing in the NarTest lab was not allowed. Id. at 13-14.
The Court additionally held that a visual identification of a substance as cocaine was inadmissible under State v. Ward, 364, N.C. 133, 147 (2010), but that the visual identification of a substance as marijuana was admissible.
In sum, the defendant’s convictions involving cocaine were overturned and a new trial was ordered. His convictions involving marijuana were upheld as the Court held that the testimony regarding visual identification of marijuana was sufficient to render the admission of the NarTest results harmless with respect to that evidence. Jones at 15-16.
In light of these holdings, defenders should be aware of the successful challenges to the admission of testimony regarding the NarTest machine. With respect to testing completed in the NarTest lab, defenders should determine whether the NarTest lab is licensed or accredited by any agency, and if it is licensed, whether testing was done before or after the lab became licensed.
Additionally, attorneys may want to examine the procedures and protocols of the NarTest lab to determine whether they are equivalent to the procedures used at the State Crime Lab, particularly as the Crime Lab works to meet new ISO standards in its Drug Chemistry Section. Attorneys could compare the quality assurance procedures for each lab, the sampling procedures for each lab, and the presumptive and confirmatory tests used by each lab to determine whether they meet the minimum standards for the forensic identification of commonly seized drugs. (See p. 14 of the SWGDRUG Recommendations for an explanation of what analytical techniques should be used.)
Attorney Anne Bleyman argued Jones and Meadows before the Court of Appeals and is available to attorneys who would like additional information about confronting this type of evidence. Her email address is abtigerlaw@earthlink.com.