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State v. Blackwell7/14/2000
Ru-004C
The trial court dismissed drug possession charges against John Blackwell after the State intentionally destroyed Blackwell's urine sample. The State Crime Lab's positive test results on the sample were the only evidence of Blackwell's guilt; the sample had initially tested negative for drugs in a field test; and there was an existing court order allowing Blackwell to independently test the sample. Under these circumstances, the trial court concluded that allowing the State to prosecute Blackwell would be "fundamentally unfair." The State appeals. We agree with the trial court and affirm.
The record shows that, on March 9, 1997, Blackwell was cited for DUI and weaving on the road. Three days later, Blackwell's probation officer tested his urine for drugs using a kit issued by the State. The test was negative. Nevertheless, an agent from the Appalachian Drug Task Force sent Blackwell's urine -- the same sample -- to the State Crime Lab, which tested it again. This time, the urine tested positive for amphetamine and methamphetamine. Blackwell was indicted for possession of amphetamine and methamphetamine, as well as DUI and weaving on the road.
Shortly after his arraignment, Blackwell filed a motion to permit an independent laboratory analysis of his urine sample. The prosecutor consented to the motion and, in an order dated March 26, 1998, the trial court granted it. The order provided that Blackwell's "attorney, or his representative, shall call [the State Crime Lab] in advance to set an appointment to view the evidence."According to Blackwell's attorney, the prosecutor called the State Crime Lab to inform them that defense counsel would be bringing an expert to analyze the urine, but the prosecutor was told that the crime lab did not keep urine specimens for more than one year. The record does not show when this call took place. In a letter dated April 28, 1998, the prosecutor wrote to Blackwell's counsel that an employee from the crime lab "called this morning and confirmed that the urine has been destroyed, pursuant to their policy of destroying urine after 12 months."
At the hearing on Blackwell's motion to dismiss, however, the prosecutor stated that the crime lab had recently confirmed that it did not actually destroy the urine until May 5 or 15, 1998. Blackwell's attorney argued that allowing the State to present evidence of the crime lab's positive test result would violate "fundamental fairness." The prosecutor suggested that Blackwell could have tested the urine during the month-and-a-half period between the entry of the consent order and the destruction of the sample. Without specifically ruling on that argument, the trial court concluded that it was "fundamentally unfair" for the State to destroy the evidence after the entry of its order, and it dismissed the drug charges in the indictment.
1. On appeal, the State argues that Blackwell waived his right to independent testing by waiting too long after the entry of the consent order to procure such testing. We do not agree.
The State relies upon Norley v. State, in which the defendant moved for an independent analysis of a substance that the State Crime Lab had determined to be cocaine. The trial court entered an order granting the motion and giving the defendant approximately one month to conduct the analysis. The defendant failed to conduct the analysis within that time, and the crime lab destroyed the evidence three or four months later. On those facts, we held that the defendant waived his right to independent analysis by "not timely utilizing the court-ordered opportunity to conduct the testing."
This case is considerably different. First, unlike in
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