610.1Forensic Drug/Blood Analysis
- A forensic chemist from the SBI, CCBI, or local lab may conduct testing and testify as an expert regarding the chemical analysis of (or for) controlled substances.
- In some circumstances, the state may also prove the identity or presence of a controlled substance through other means, such as visual identification or the defendant’s admission.
- There are several notice and demand statutes applicable to controlled substance and alcohol cases that allow the state to introduce the evidence without the need to call an expert witness, but only if certain procedural requirements are followed.
The drug chemistry section of the North Carolina State Crime Laboratory (“SBI”) analyzes: (i) evidence to determine the presence of controlled substances; (ii) blood to determine the presence of alcohol or controlled substances; and (iii) pharmaceutical preparations to determine if substitution or dilution of the preparation has occurred. In some districts, a local facility (e.g., Wake County’s City-County Bureau of Identification, or “CCBI”) may have its own analysts who are also available to conduct testing and provide expert testimony.
Analysts in these section are usually referred to as “forensic chemists,” and the prosecutor should seek to qualify the expert as a forensic chemist “specializing in the chemical analysis of evidence to determine the presence of controlled substances” or “specializing in the chemical analysis of blood to determine the presence of alcohol and controlled substances.”
Admissibility and Identification
In most controlled substance offenses, the state bears the burden of proving beyond a reasonable doubt that the suspected drugs are, in fact, a controlled substance. A properly qualified expert who has conducted an analysis of a sample should be permitted to testify about the results of that testing and identify the controlled substance. See, e.g., State v. Abrams, 248 N.C. App. 639 (2016) (forensic scientist's "testimony was 'the product of reliable principles and methods' 'applied ... reliably to the facts of the case[,]' which satisfied the two challenged prongs of the reliability analysis under Rule 702(a)" and Daubert, and was therefore properly admitted to identify the tested substance as marijuana); see also State v. Ward, 364 N.C. 133, 147 (2010) (“Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.”).
However, this does not mean that the state is obligated to individually test each separate bag, packet, pill, dose, or batch in every case. The analyst may choose to combine the suspected drugs together and take a sample of that combined product for testing. See State v. Huerta, 221 N.C. App. 436 (2012); State v. Worthington, 84 N.C. App. 150 (1987). If the analyst does so, then the defense may try to argue to the jury that it makes the total weight of the drugs uncertain (since it was all combined together, and some portion of it might not have been a controlled substance), but that does not render the expert’s testimony inadmissible or prevent the matter from going to the jury. See State v. Hunt, 249 N.C. App. 428 (2016); State v. Lewis, 243 N.C. App. 757 (2015); State v. James, 240 N.C. App. 456 (2015).
How much is enough?
Even though it’s not statutorily required, it will usually present better at trial if the analyst takes at least one sample from each different category, location, or batch of evidence that was found (e.g., one sample from the heroin bundle found in the trunk, one sample from the wrapped brick found under the seat, and one sample from the loose bindles found in defendant’s coat pocket).
Aside from lab testing, the state is also authorized under Ward to use “another method of identification” in some circumstances. The sufficiency of an alternative identification technique will depend on the witness’s qualifications, the specific facts of the case, and the nature of the drug being identified, but the appellate courts have found alternative methods to be sufficient in some circumstances, as summarized below:
Visual/Odor Identification of Marijuana
See State v. Fletcher, 92 N.C. App. 50 (1988) (identification of marijuana by officer, based on training and experience); accord, State v. Garnett, 209 N.C. App. 537 (2011); State v. Mitchell, 224 N.C. App. 171, 178-79 (2012); State v. Johnson, 225 N.C. App. 440 (2013). However, mere visual identification is normally insufficient under Ward for drugs other than marijuana (e.g., cocaine, heroin, or pills). See State v. Ward, 364 N.C. 133, 147 (2010); State v. Jones, 216 N.C. App. 519 (2011); State v. Alston, 254 N.C. App. 90 (2017).
Defense Testimony/Evidence at Trial
See State v. Nabors, 365 N.C. 306 (2011) (when defendant or a defense witness acknowledges at trial the evidence is a controlled substance, that is sufficient evidence of its identity); State v. Williams, 367 N.C. 64 (2013) (similar holding, finding that defendant’s testimony at trial confirmed substance was cocaine, so any error in admitting the substitute analyst’s testimony was harmless).
Defendant’s Out-of-Court Admission
See State v. Bridges, 257 N.C. App. 732 (2018) (officer’s testimony that baggie of crystal-like substance looked like meth, and defendant’s out-of-court admission to officer that it was meth, held to be sufficient evidence of identity of drug) citing State v. Ortiz-Zape, 367 N.C. 1 (2013) (similar holding that defendant’s admission to officer confirmed substance was cocaine, so any error in admitting the substitute analyst’s testimony was harmless); but see State v. Osborne, 261 N.C. App. 710 (2018) (distinguishing Bridges, and holding that defendant's admission that she "had ingested heroin" was insufficient to prove that rock-like substance found in her room at the time "was" heroin, despite corroborating evidence such as a positive field test and presence of paraphenalia), reversed and remanded for reconsideration, 372 N.C. 619 (2019) (agreeing that the evidence purportedly dentifying the drug was incompetent, but since defendant failed to properly object the motion to dismiss for insufficient evidence should not have been granted).
See State v. Yelton, 175 N.C. App. 349 (2006) (identification of methamphetamine by a long-time user, who testified to her extensive personal experience with the drug and had actually used some of the specific batch of drugs in question); State v. Woodard, 210 N.C. App. 725 (2011) (identification of hydrocodone by an experienced pharmacist who had an extremely detailed inventory tracking process, and thus could reliably confirm the contents of the bottles stolen from his store).
What about positive “field tests?”
A field test is likely insufficient to establish the identity of the substance. Even under the old pre-Daubert standard, several cases have found that there was an insufficient showing of reliability with these types of tests. See State v. Meadows, 201 N.C. App. 707 (2010); State v. Jones, 216 N.C. App. 519 (2011); State v. Carter, 237 N.C. App. 274 (2014).
Notice and Demand Statutes
There are several “notice and demand” statutes that allow the state to introduce evidence regarding lab testing and results in controlled substance and alcohol cases without the need to call an expert witness, but only if the procedural requirements of the statutes are followed.
Chain of Custody
G.S. 90-95(g1) allows a chain of custody to be established without calling witnesses under the circumstances set out in the statute. The state may utilize this procedure only if:
- The state notifies the defendant at least 15 days before trial of its intention to introduce the statement of the chain of custody [as set out in subdivision (1) and (2) of the statute] into evidence and provides the defendant with a copy of the statement; and
- The defendant fails to notify the state at least five days before trial that the defendant objects to the introduction of the statement into evidence.
Admission of Drug Analysis Report
Under G.S. 90-95(g), the report (by the North Carolina State Crime Laboratory, Charlotte Police Department Laboratory, or Toxicology Laboratory, Reynolds Health Center, Winston-Salem) is automatically admissible in all proceedings in district and superior court, but only if:
- The state notifies the defendant at least 15 business days before trial of its intention to introduce the report into evidence and provides a copy of the report to the defendant; and
- The defendant fails to notify the state at least five business days before trial that the defendant objects to the introduction of the report into evidence.
A laboratory report of a forensic analysis may also be admitted under G.S. 8-58.20 under the requirements set out in that statute.
Admission of Chemical Analysis of Blood or Urine in DWI Cases
Several statutes allow for the admission of test results and chain of custody forms:
- Under G.S. 20-139.1(c1), the results of a chemical analysis of blood or urine (by the North Carolina State Crime Laboratory, Charlotte Police Department Laboratory, or any other laboratory approved for chemical analysis by the Department of Health and Human Services) are admissible in any court without further authentication, if the state notifies the defendant at least 15 business days before trial of its intention to introduce the report into evidence and provides a copy of the report to the defendant; and the defendant fails to notify the state at least five business days before trial that the defendant objects to the introduction of the report into evidence.
- Under G.S. 20-139.1(c3), statements regarding the chain of custody for blood or urine may likewise be admitted in any court without further authentication, if the state notifies the defendant at least 15 business days before trial of its intention to introduce the report into evidence and provides a copy of the report to the defendant; and the defendant fails to notify the state at least five business days before trial that the defendant objects to the introduction of the report into evidence.
- Under G.S. 20-139.1(e2), an affidavit from the chemical analyst stating the results of a breath test may be admitted in district court, if the state notifies the defendant at least 15 business days before trial of its intention to introduce the report into evidence and provides a copy of the report to the defendant; and the defendant fails to notify the state at least five business days before trial that the defendant objects to the introduction of the report into evidence.
Effective 10/1/16, G.S. 20-139.1 was amended to clarify that:
- the state must provide a copy of the lab report, chain of custody report, or breath test affidavit to the defendant within 15 days of when the state received it in order to utilize these notice/demand procedures; and
- if the defendant fails to file an objection within five days prior to the first setting of the case for trial, that failure remains effective at any subsequent calendaring of the case (i.e., if the defendant didn’t object before the first setting after getting a notice, then he may not object at the next setting if the case gets continued).