In Denton County (and in most counties), if a person is arrested for possessing a controlled substance, the substance is sent off to a lab to be tested. This is true for all drugs, except for marijuana which can be determined to be pot based on the police officer’s “training and experience”—so lay testimony is permissible to identify that “green leafy substance” as pot. Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002). For everything else, however, the substance is packaged and taken to a lab to be tested.
While you may see the cop “field test” using something that looks like Playskool Chemistry Set, field tests are notoriously unreliable. Not sending a substance to lab is asking for trouble—see: “Fake” Drug Dallas Cases for an idea of what a shit-storm not sending a supposed controlled substance to a lab can stir up.
So, as a matter of routine, contraband (other than marijuana) is sent to a lab, to be officially confirmed as such. Here in North Texas, the lab is in Garland. But, recent “designer drugs” have a level of complexity that is too advanced for Garland, so they are sent to…a lab in Pennsylvania?! (Note: What do you figure the odds are that, so as not to avoid Confrontation Clause issues, the State will, on the taxpayer’s dime, fly the lab technician from Pennsylvania here to testify in a misdemeanor possession case?…)
And then, you wait. And wait. And wait. And wait.
And wait. Currently, labs here in Texas are so backed up, the Accused may have to six months or more for the results of lab tests. And that estimate is generous. I have heard other defense lawyers say that they have cases that over a year old with no lab results.
Frequently, if not always, I file a Motion for Inspection of Evidence in drug cases. If the State has supposed contraband, I want to see it. Why?
First, I want to make sure they actually have the alleged contraband. Just because it was inventoried at the police department eight months ago doesn’t mean it still exists at the police department now. Missing evidence is not just the stuff of crime dramas on TV—it happens more often than you might think. (See, e.g.: “Caretakers of Criminal Evidence Arrested in Lewisville,” at http://www.wfaa.com/story/news/crime/2014/08/19/14100636/)
Second, I want to see what the amount looks like—what does .9 grams of methamphetamine actually look like? Does it looks small? Could it be on the floor of a car and not seen by a passenger in the vehicle? Does it appear small and unimposing, or is large enough to make juries (and defense lawyers) nervous? This matters. I can tell you that 28.6 grams of fluffy, bright green pot in a gallon ziplock bag, for reasons that defy basic science and mathematics, looked to me like a hell of lot more pot than a dense, cellophane wrapped, one-pound brick of “dirt weed.”
That’s why it is absolutely critical to see the contraband well in advance of trial or plea. And yet, I am frequently told by prosecutors (who schedule the visit to the police department for defense lawyers, and frequently attend the evidence inspection as well) that this is the first time they have ever been to look at evidence with a defense lawyer. That’s unsettling, to say the least.