Many attorneys have asked us about blood-drug (and some blood-drug and alcohol) testing performed by NMS Labs. We have compiled the questions and our answers here. If you have additional questions, please post them in the comments and we will try to answer them as well. Let’s make this a living document!
The toxicology evidence in my case was analyzed by NMS Labs in PA. Why was it sent there?
The NC State Crime Laboratory currently is outsourcing blood-drug and blood-alcohol and drug cases in an effort to address their backlog. 43 counties are currently participating in the outsourcing program: Alexander, Beaufort, Bladen, Brunswick, Buncombe, Burke, Cabarrus, Caldwell, Catawba, Cleveland, Columbus, Duplin, Durham, Edgecombe, Franklin, Gaston, Greene, Guilford, Harnett, Hoke, Iredell, Lenoir, Lincoln, Johnston, Jones, Lee, McDowell, Mecklenburg, Moore, Nash, New Hanover, Onslow, Rockingham, Rowan, Rutherford, Sampson, Scotland, Stokes, Surry, Union, Vance, Warren, Wayne, and Wilson.
Who is the “Certifying Scientist” who signs the lab report and are there any potential problems with this?
NMS lab reports are not signed by the analyst who performed the tests, rather by a “Certifying Scientist,” who does not seem to have any interaction with the evidence itself, and possibly not even the data. Melendez-Diaz established an inescapably clear requirement that those people testifying as experts, must have formed their own opinion on the data that was generated from the testing. If the Certifying Scientist does not have an opinion, or lacks the qualifications to support those opinions, that person should not be testifying as an expert about the data in that lab packet. Additionally, NMS runs their analyses in batches. Multiple technicians work to process multiple samples at the same time. A Certifying Scientist who did not perform or observe the testing is not going to be able to guarantee every step of the process was error-free. For more in-depth discussion of these problems, please see: http://nccriminallaw.sog.unc.edu/the-nc-supreme-courts-recent-substitute-analyst-cases/
Does NMS have different procedures from the NCSCL?
Some of NMS’s procedures are different. NMS provides quantified results for their toxicology reports, estimating the amount of a substance found in the blood sample and, for a time, NMS witnesses opined about the impairing effects of substances which they found, but NCSCL has advised them not to do this. A Pharmacologist could look at this quantified data and say whether the dosage is commensurate with a therapeutic dosage or not, and even testify to the impairing effects. If the Certifying Scientist intends to give testimony about the impairing effects, per N.C. Gen. Stat. 15A-903 and Rule of Evidence 702, that opinion would need to be disclosed in their report and they would need to have pharmacological training to support that testimony.
The NMS Labs also uses a different sort of spectrometer to analyze their samples. The NCSCL uses a Gas Chromatography Mass Spectrometer (GCMS), an instrument that passes an ion beam through a gas and detects the energy changes in the substances found in the gas taken from the sample. NMS Labs uses a Liquid Chromatography Mass Spectrometer (LCMS). The NCSCL also uses this instrument to perform some toxicology analysis. These techniques produce the same sort of data and are both considered confirmatory tests, but the procedures and instruments used are quite different.
Does NMS have to turn over their lab packet?
In some cases a 3-4 page summary report is turned over to the defense. This is not the entire lab packet. NMS Labs also produces a “litigation packet” that typically is several hundred pages long. The summary report does not contain sufficient information for counsel to understand what tests were performed and whether they were performed correctly. If the case is within the original jurisdiction of the Superior Court, the rules of discovery apply and you would be entitled to the lab packet through discovery. If the case is within the original jurisdiction of the District Court, you can ask the judge to order the prosecution to turn over a copy. If the witness relies on his or her report during testimony and it is not turned over until then, it would be extremely time-consuming for counsel to attempt to review it at that time. In some jurisdictions, the litigation packets are being turned over in District Court prior to trial.
This packet is huge and really hard to understand.
Yes, that does seem to be the way of things. It is hard to imagine that this packet was designed with the purpose of giving the reader easy access to the relevant information. Their reports typically spend a lot of time identifying the presence of many metabolites of a substance. These are just the indicators of the substance being present and metabolized, not additional substances. Additionally, metabolites can be active or inactive, meaning that some metabolites have no impairing effect, and could even indicate a lack of impairment.
If you have any concerns about how a drug is metabolized, or what a drug’s metabolites are, LabCorp has a rather comprehensive guide to the metabolites of Benzodiazepines and Opiates.
If you need a starting point for the effects of a certain substance on a human who has ingested it, the NHSTA has Drug and Human Performance Fact Sheets on 16 different commonly used drugs — including cocaine, cannabis, methadone, Valium and Ambien — prepared by pharmacologists to describe how average humans are impacted by drug usage. These models are based on normal, healthy humans, and any increased tolerances or other reasons why the model does not fit your client should be discussed with an expert.
It is highly advisable that, at this time, that you get an expert to review the data with you after you get the packet. One easy to spot problem is if the data representation where the x-axis is time and the y-axis is signal intensity, the peaks do not touch the bottom of the graph, that is a pretty serious problem. Since NMS provides the quantity of the substance, if they cannot accurately tell where the substance they are analyzing begins or ends, they cannot have much accuracy on the quantity they are saying is present.
Great starting points for cross-examination.