Urinalysis Deal Hurts Prosectors

Contract With Calif. Lab Can Undermine Evidence

November 06, 1991|By Deidre Nerreau McCabe | Deidre Nerreau McCabe,Staff writer

The state's contract with a California drug-testing lab is complicating work for county prosecutors, who say the long-distance association makes it nearly impossible to use test results as evidence in probation hearings.

In many cases, the contract means evidence of drug use is downplayed or lost entirely, prosecutors and defense lawyers said.

The state signed an agreement with PharmChem Labs Inc., in Menlo,Calif., in 1989 after it submitted the lowest bid for a three-year contract. The contract was recently renewed and runs through January 1993. Every year, PharmChem handles the drug tests for thousands of people on probation required by judges to submit to random urinalysis tests.

Officials at the state's Division of Parole and Probation, who manage the contract, say they have received no complaints about the California firm. Its location should pose no problems for prosecutors, officials said, and the drug test evidence is routinely accepted by courts throughout Maryland.

But prosecutors and other attorneyshere say that because PharmChem is so far away, logistic problems exist that often benefit criminals.

"The problem is that the bean counters with the state don't understand in the final analysis the impact these decisions have," said one county defense attorney, referringto the use of a California firm.

Take the case of Gregory Myers.

Myers, 52, of Ellicott City was convicted in District Court on a drug possession charge last year. Since it was his first offense, he got probation, which included participation in a county drug treatmentprogram.

Last week, Myers was back in court. Prosecutors had claimed he violated his probation by continuing to use drugs and being uncooperative in the treatment program.

But prosecutors did not present the most serious evidence against Myers: two positive drug tests during his probation.

To use that evidence, prosecutors would havehad to bring to court the California chemist who performed the tests. It seemed an extraordinary effort for a case all parties consideredrelatively minor.

District Judge R. Russell Sadler decided to continue Myers' probation as before.

"There was, in effect, no punishment," said Timothy J. McCrone, a former assistant state's attorney who now has a private law practice. McCrone, who represented Myers in the case, said his client could have faced up to four years in jail for violating his probation.

If the test results had been introduced and Myers had been found guilty of violating probation, he would beserving a minimum of six months to a year, McCrone speculated.

Attorneys must make sure their clients' rights are upheld, he said, including the right to call as witnesses chemists who did the testing.

Public defenders said they regularly request that chemists be called as witnesses because "false positives" on urine tests are possible and they want the option of questioning chemists on the techniques used.

But under the current system, once that request is made, prosecutors said, they typically drop the drug use charge and proceed on any other violations that may exist.

"When I was a state's attorney, I made a lot of calls to the state complaining about this," McCronesaid. "The defense can almost be assured the state won't bring the (chemists) in" if they have to come from California.

"It would require a Herculean effort on the part of the prosecutor to prove these violation of probation cases where there's a drug analysis involved," he said.

Senior Assistant State's Attorney Michael D. Rexroad saidusing a California firm may seem like a good idea to state officialslooking to save money. But to state's attorneys trying to prosecute probation violations, the choice is "absurd."

He described urinalysis as a major tool in supervising drug offenders.

"We absolutely need to be able to use this evidence to prove cases," he said. "It's unimaginable the state could set up a procedure that we can't use."

The state's Division of Parole and Probation, which awarded and manages the urinalysis contract, said the contract should pose no hardship for prosectors.

"We are completely unaware of any problems withthis," spokesman Leonard A. Sipes Jr. said. He said administrators from the division meet regularly with state's attorneys, who have never identified the contract as a problem.

Sipes said no chemists have been flown here from California to testify because prosecutors haven't asked for them. If a chemist is requested in Maryland, the contract requires PharmChem to make the chemist available and pay travel costs.

"It's the prosecutor's responsibility to notify PharmChem that they need a chemist," said Susan Kaskie, spokeswoman for Parole andProbation. "They can't make an assumption that (the chemists) won't come."

The state's attorney's office is required to pay $75 per hour for testimony in court and time used to prepare testimony.

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