Tuesday, March 31, 2015

Always Request Confirmation

Yet another tale of fun from court.

I have a client that is in bad shape medically and ran afoul of the law, resulting in a misdemeanor for being stupid, in a circumstance that doesn't bear going into for the purposes of this story.

How bad shape medically you may ask? Well, thanks for asking. So bad that she's on heavy medications, cannot function or walk without the medications and has quite a few side affects from same. Said medications would lead one to be in serious penal jeopardy if you were taking or possessing them on a recreational basis. She, by way of contrast, has prescriptions, attending doctors, an extensive medical history, and is tested on a regular basis to make sure her blood count for all this stuff is correct, and she does not use recreational drugs.

Unfortunately, we're in front of a judge who seems to have a thing against people being prescribed certain pain killers.

So at a pre-sentencing hearing the judge orders her to take a pee test right at the court's probation office, which she does. This is instead of just moving this case along with the already plead plea deal of a deferred sentence, probation and then having it removed off of her record as she has no prior criminal conduct or record.

She's been doing these test regularly anyways not just for her doctor but for the probation department as a condition of her bond and they have a full list of all her meds and the tests tend to come back unsurprisingly as positive for all the stuff she's taking.

This time however, the test taker claims that the test results showed she took methamphetamine.

This doesn't make sense, especially as no other test has ever detected it, she had recently been checked by her doctor and no meth was found, and she's already on an prescribed amphetamine so why would she go for the fake stuff when she can have the real thing?

Guess what boys and girls? The pee test does have a high likelihood of triggering on amphetamine metabolites and erroneously reporting them as methamphetamine metabolites.

The judge gets pissed and orders a bond revocation hearing. This is after I've already left court by the way. The client is now being railroaded with the next stop ending at a jail.

The more I look into this the curiouser it becomes.

I check with the probation office and ask if they confirmed the test. They don't know but they're convinced that since the test showed meth, so its meth, regardless of her prescribed meds.

A Toxicologist I talk to about this laughs out loud when I run the facts by him. Without a proper confirmation test being done at a lab, the test is junk as it is an initial screening test only and yes, it can indeed show the client's prescription amphetamine use as methamphetamine.

So the court is about to throw someone in jail based on a unsubstantiated and unreliable (in this circumstance) test.

I start having to draft a motion for the hearing and move to retain the Toxicologist, who does not come cheap, to prepare to defend my client and keep the client out of jail.

I then talk to the assigned probation officer and ask if the test is confirmed yet. She states that it was not confirmed. I ask if it is going to be confirmed and she says no. I point out that without a lab doing a gas chromatography–mass spectrometry test to confirm the presence of methamphetamine and rule out the likelihood that the false positive was caused by the metabolites from the Defendant’s medications, the baseline pee test is unreliable.

She considers that, then agrees and states she will recommend to the judge that the bond hearing be pulled and we go back to the normal track of things.

Today, the court clerk confirmed the hearing is off and we're back on track towards the deal as pleaded.

So yay me, I now know far more about drug testing than I ever have before. More importantly, I managed to stop the railroad and kept my client out of jail for a violation that the client did not commit.

2 comments:

ProudHillbilly said...

Definitely yay you. I'm good with people who deserve it being tossed in the can. But not railroading.

JoeMama said...

Good for you! Doing "The next logical step" should not be as rare as evidence suggests it is. Thanks for reading the fine print and bucking the trend.