The above is Part Two from a lecture given by Attorney Justin J. McShane before the North Carolina Advocates for Justice “Advanced DWI Seminar”.  This seminar happened on February 26, 2010.  It was organized and hosted by John K. Fanney, Esquire of  Fanney & Jackson, P.C. The following is a transcript of this video:

I get to talk about drug cases and drugs, and stuff like that. I get to go across the entire United States and have a lot of fun doing it. This is going to be a fun seminar. I hope it is going to be interactive when we can get in the mood – I get to talk about when people get high.

[Music – Afroman]

What we are really talking about is analytical chemistry; how they arrived at getting the magic number. The cool kids are doing the analytical chemistry. What I mean by that is if you understand even the basics of it, it’s going to absolutely fascinate you to such a degree that you are going to do nothing but read about it and just become captivated by it. If you can learn how to challenge that magic number, as I am going to start to show you, you can take off from here. Once you know how to do it, there is no stop to it. You are going to become that weapon of mass acquittal.

What we are really talking about in analytical chemistry is what is called chromatography. Chromatography is separation science. It’s how you take something that is complex and divide it into its independent parts. That’s chromatography. It is an old science by SVELT. At the base, what you are doing is taking complicated mixtures, such as blood, which has a whole bunch of stuff in it, and you are looking to separate it out into its  parts so you can figure out how much ethanol is in it, or how much benzolidocane is in it, or THC, Delta 9 THC. Chromatography is separation science; it comes from the Greek words “chroma,” meaning color and “graphein,” which is to write. It is basically laboratory science.

I am going to offer these to be the basic issues always ignored and things that we are going to talk about this morning. The difference between a screening and a confirmation test, forensic versus non-forensic testing, and I mean that not from your state scientist’s point of view because they think everything is forensic because they are doing it. I am talking about, in terms of the scientific community, the hard-core scientific community – there is a big distinction between those two. When you have a solid drug dose that often accompanies a DUID case, someone gets pulled over driving under the influence of drugs and they find green leafy vegetables or white powder, that is, of course, we can’t ignore as practitioners.  But one of the biggest questions that is there is how on Earth did they actually know that the white, off-white, chunky substance is crack? That is a big question.

If you sit down and start to really think about it, as we are going to do with our time together, you are going to start to see some holes that are potentially there in the way they do their testing. Can they prove that the drug was actually what it was or what they say it is in the solid dose form?  And of course Melendez-Diaz. Melendez-Diaz is, of course, the case from the United States Supreme Court, later there was Briscoe vs. Virginia, which said the lab analyst actually has to come in and testify. No longer can they do it by way of affidavit and a piece of paper says you’re guilty.

What we want to do is take a look from the outside in because we are outsiders. Has anyone here ever been to their state lab? Has anyone asked to go and inspect their state lab, to take a look at it? It is something that maybe you folks should take a look at, because you would be amazed when you go in there and take a look at it.  First, it is great cross-examination question there where you can develop who they allow in the lab. You can ask them, “Can I come to your lab?” and they say, “No.” Then you find out that they let the Cub Scouts in and the Boy Scouts and anyone else but not defense attorneys. There is potential to show some bias that they are playing, not for the team of science, but rather for the team of conviction. That’s an important thing.

Laboratory analysis really breaks into not that many elegant things. Specifically what we are going to be talking about here is the types of tests. There is screening versus confirmatory. There is qualitative versus quantitative – quantitative is how you arrive at that magic number, the .162, qualitative is how you separate out or can tell if it is cocaine versus marijuana versus ETOH. That is called the qualitative measure. Finally, there is objective testing versus subjective testing.

The first thing I want to do is talk to you about colorimetric tests, or chemical color tests. Most varieties that are here, and they are truly screening tests, are the Marquis Color, Cobalt thiocyanate and Duquenois-Levine Test. Those are the three most prevalent types of tests that are out there. What they are is very simple. What it is, they take an unknown agent, whatever it is, this green leafy vegetable, they apply the agent and it changes color. That is all a colorimetric test is. It is a screening test. What that means is that it has a high rate of false positive, that means that is has the potential of reporting something to be marijuana that is not in fact marijuana.  But it is designed, and it is supposed to have a low false negative rate, which means that if it is not then it’s not. The bottom line is, even the best ones out there are not fool proof. It is a great illustration of the difference between a screening test and a confirmatory test.