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State v. Lucero3/23/2004
Defendant Ronald M. Lucero timely appeals his sentences and convictions for aggravated assault, possession of marijuana and drug paraphernalia, and four counts of endangerment.
2 This appeal raises three issues. Two issues concern the admissibility of evidence under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). We must decide whether a Frye hearing was required before admitting scientific evidence based on gas chromatography/mass spectrometry ("GC/MS"). [FN1] We must also determine whether a Frye hearing was necessary before allowing an expert to testify that, in his opinion, marijuana impaired Defendant at the time of the accident. Finally, we decide whether a jury instruction unconstitutionally shifted the burden of proof to Defendant.
FN1. A description of GC/MS testing is as follows:
The gas chromatograph, which is essentially an extremely sensitive filtering machine[,] is instrumental in breaking down a gas sample or a liquid mixture into its molecular subcomponents. If, for example, an individual wanted to ascertain the molecular compounds in a particular liquid, the sample would be mixed with a liquid solvent. The mixture is then heated until it forms a gas. The gas is then forced through a column, which is a glass tube filled with special filtration material. Each molecular compound in the sample will elute through a given column and temperature at a specific rate. A detector is attached at the outgoing end of the column which records the quantity and concentration of each particular molecular compound contained in the sample.
During this process, a mass spectrometer may be used in conjunction with the gas chromatograph. A mass spectrometer bombards the sample with high-energy electrons to generate extensive fragmentation ions. Because the sample is broken up to such a degree, the equipment can accurately determine which compounds are present. Using [gas chromatography and mass spectrometry] simultaneously yields information about the sample with a high specificity level.
Peter Joseph Bober, The "Chemical Signature" of the Fourth Amendment: Gas Chromatography/Mass Spectrometry and the War on Drugs, 8 Seton Hall
Const. L.J. 75, 79-80 (1997). See also Jefferson Lankford, Arizona DUI: A Manual for Police, Lawyers, and Judges 59-62 (2003-2004 ed.) (2003) (describing gas chromatography).
3 The charges against Defendant arose out of a collision between the vehicle Defendant was driving and another vehicle. Defendant had failed to yield the right of way. The State alleged that Defendant's use of marijuana had impaired his ability to drive. A jury convicted Defendant on all counts.
4 The State introduced evidence of Defendant's impairment in part through the testimony of Raymond Kelly, a forensic toxicologist with a Ph.D. in chemistry. Dr. Kelly testified about the results of GC/MS tests performed on blood and urine samples taken from Defendant after the collision. [FN2] Defendant's blood tested positive for tetrahydrocannabinol ("THC"), [FN3] the active component in **1061 *303 marijuana, and for metabolites of THC. [FN4] Defendant's urine also tested positive for a metabolite of THC. THC is a central nervous system depressant.
FN2. A total of four biological samples were analyzed: one urine sample and three blood samples taken at different times. GC/MS testing was performed on all but one of the samples after an initial screening test and resulted in detecting the presence of THC or its metabolites in all three
samples. The quantities of these substances detected were minute, measured in nanograms per milliliter of blood or urine. A nanogram is one billionth of a gram.
FN3. Nothing in the human body produces THC; THC occurs naturally only in the Cannabis sativa, or marijua
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