Well, I never thought I would say this, but here goes: “Saved by the governor, a special session of the Legislature, and a change of heart!” Without all three, I would’ve written this column about the Department of Public Safety’s recent plans to start charging for lab tests along with the labs’ rules and regulations.
Thank you, Director Steve McCraw, for deciding to retract charging fees for lab services. Absent that decision, law enforcement across Texas, particularly the non-metro areas, would be scrambling to find the funds from their bare-bones budgets to pay for the lab tests.
One bright spot that has come from this event is that a great light has been cast on the labs and their struggle to catch up with our ever-growing need for their services. Being long in the tooth as a prosecutor, I believe that the DPS labs have been overlooked for more than a decade. My premise for that statement is the long time we have had to wait in the past for almost all types of our testing, particularly on drugs.
There is a consistent and growing need for more testing from DPS labs, which has put DPS’s back up against a wall. There are plenty of good people working very hard to get us test results, but they have been unable to keep up with our demands for their services. Only recently has there been a visible effort to increase staffing.
To get results out more quickly, DPS has imposed limits on what will be tested, how much will be tested and when, and how much of the sample will be retained. These restrictions have reduced the time to get results, but it’s also meant jumping through hoops when we prosecutors request that additional items be tested in our quest for justice.
With the assistance of some friends and the DPS website, I have put together this article on DPS’s rules and regulations concerning lab submissions. The statements in italics are extremely important to the labs.
And at the end of this article (as an incentive to read through the whole thing), I will share our jurisdiction’s fix for getting all of our drugs tested on the first submission.
DPS’s Crime Laboratory will limit the type of cases analyzed for DNA evidence and the number of items or samples that can be submitted based on the type of offense. For all cases accepted, the number of items that will be tested will be limited to the minimum number necessary to answer the relevant questions in the case.
It is imperative that agencies submit DNA evidence as soon as possible after it has been collected so that the laboratory can provide timely service. Please note these restrictions:
• The laboratory does not accept paternity cases.
• The laboratory does not perform DNA testing on drugs or drug paraphernalia.
• The laboratory does not perform DNA testing for “touch” DNA, including swabs of steering wheels, shift knobs, door handles, switches, counters, keys and locks, ammunition and cartridge cases, fingerprints and smudges, etc.
The known standards from suspects, victims, or elimination standards (including consensual sex partners) will not count against the number of items that may be submitted.
Burglary or property crimes
Submission is limited to two items. These must be swabs of blood from the crime scene or swabs of items left at the scene, such as cigarette butts, clothing, gloves, or drink containers. More than two items may be accepted if the circumstances (such as multiple perpetrators) dictate the need for additional analysis.
The initial submission will be limited to the sexual assault evidence collection kit, one pair of underwear, and one condom (if applicable). If the kit is positive, no additional submissions will be allowed unless circumstances (such as multiple perpetrators) dictate the need for additional analysis. If the sexual assault kit is negative, a second submission of up to five items, such as clothing or bedding, will be accepted.
The initial submission of biological evidence is limited to 10 items, which the investigator and/or district attorney believe will be informative. It is recommended that the investigating agency have a conference, either in person or electronically, with the laboratory prior to evidence submission to determine which items will be most probative to the case.
Serology screening and/or testing will be performed on the 10 items in the first submission, and the five samples that indicate the highest chance for success will be forwarded for DNA testing. If informative results are obtained, additional items will not be examined unless circumstances (such as multiple perpetrators) dictate the need for additional analysis. If informative results are not obtained from DNA analysis of the first five samples, then the second five will be tested.
If no informative results are obtained from the items in the first submission, then a second submission of 10 additional items will be allowed. Those items will be processed as above.
A written request from the prosecutor, including sufficient justification, must be received by the laboratory before any decisions on performing additional testing will be considered once informative results have been obtained. (The lab has never turned down my request for more DNA testing when I have requested it. You need to justify why you want it, but they have always been extremely helpful.) Additional samples will not be tested to merely disprove all possible scenarios.
Other crimes against persons
Submission is limited to two items. Submission and analysis of additional items will be determined on a case-by-case basis with the respective laboratory.
DNA analysis for court
The laboratory understands the evolving nature of criminal investigations and court schedules. However, fulfilling requests for extremely short turnaround times is not possible from a laboratory standpoint without severe negative impacts to the timeliness of other case reports. Notice must be given to the laboratory at least 60 days prior to the date the results are needed for court purposes.
Recently, some changes regarding drug testing have been implemented. These include:
• increasing controlled substance personnel,
• streamlining procedures, and
• defining the case acceptance policy (outlined below). These criteria will allow the laboratory to provide the timely and quality service.
The policy now states that for all cases accepted, the number of items that will be tested in each case will typically be limited to the minimum number necessary to reach the weight requirement of the highest penalty group in the Health and Safety Code. This means that typically the only items analyzed will be the highest felony submitted.
The DPS Crime Laboratory will limit the number of items or samples that can be accepted for a case based on their assignment in the Health and Safety Code and their weight. It is imperative that agencies submit felony substances as soon as possible after they have been collected so that the lab can provide timely service.
The laboratory does not typically accept or analyze evidence categorized as a misdemeanor offense, such as possession of marijuana under 4 ounces, synthetic cannabinoid materials under 4 ounces, identifiable dangerous drugs, etc. However, misdemeanor offenses may be analyzed when a prosecutor needs a laboratory report for adjudication purposes. To request such analysis, a prosecutor must submit a written request to the laboratory before any testing will occur. Form letters and blanket requests for analysis will not be accepted.
DPS non-bulk evidence
The Crime Laboratory will receive controlled substance evidence from DPS’s law enforcement officers. Evidence will be analyzed to the same extent as our external partners. Only the items needed to reach the highest penalty group will be analyzed. If a case contains both felony and misdemeanor items, they should be packaged in separate containers to expedite analysis.
DPS bulk evidence and excess evidence
The Crime Laboratory will accept these cases and process them in accordance with the Health and Safety Code and governing Administrative Codes.
Sample submission limits
The type and number of items or samples that will be accepted will be based on the substance’s penalty group. Once results have been released, a written request from the prosecutor, including sufficient justification, must be received by the laboratory before any decisions on performing additional testing will be considered. Additional samples will not be tested to merely have a heavier weight on the report.
Controlled substance analysis for court
The Crime Laboratory cannot provide accurate and complete information without sufficient time to perform the testing and review the results. Notice must be given to the Crime Laboratory at least five business days prior to the date the results are needed for court purposes for marijuana cases and at least 30 business days for all other substances. This will enable the Crime Laboratory to perform the analyses in the most effective manner while maintaining a high level of quality.
Transportation of evidence to and from court
Laboratory personnel are not commissioned officers and are required at times to use their personal vehicles to travel to and from court. For these reasons, laboratory personnel are not permitted to transport evidence to and from court. Deviation from this policy must be approved by laboratory management.
Biohazardous evidence collection
Syringes will not normally be examined by DPS Crime Laboratories. Only the prosecuting attorney may request the examination of syringes or its presumed content. For analysts’ safety:
• Leave any liquid contents in the syringe. Do not attempt to transfer the contents of the syringe to another container.
• Liquids from a syringe will be treated the same as a syringe. It will not be examined unless requested by the prosecuting attorney.
• If a prosecutor believes he has retrieved the contents of a syringe already in another container, consider it to be a biohazard and treat it with the same precautions.
• Drug evidence confiscated from a body cavity, mouth, toilet, or other infectious environments is considered a biohazard and should be labeled and treated as such.
These are the highlights of what prosecutors need to know concerning the DPS labs. There are other additional requirements for the collection of DNA and other evidence that I have not discussed here, but anyone who’s interested can look on DPS’s website (click HERE to be redirected) to find out more.
Our local solution
Here is an exciting thing we have done locally. I recently helped our local police department negotiate a memorandum of understanding (MOU) with DPS. The Amarillo Police Department agreed to pay DPS for the salary and benefits of one chemist, and DPS provides that chemist to the lab. The MOU also requires that chemist to test all drugs sent to the lab by that local police department on the first submission.
This arrangement has been in place for several months and is working out extremely well for DPS, the police department, and the prosecutor’s offices. The lab results are very timely, and this arrangement has made the drug cases that go to trial proceed more quickly and with less effort.
If you are interested in doing something similar in your area, please feel free to contact me, and I will fill you in on the details and send you a copy of our MOU.
Finally, a big cowboy “thank you” to all the DPS lab personnel for all that they do to assist us with evidence. Their dedication to what they do does not go unnoticed! Without them, there would be a lot more jury trials rather than guilty pleas and far more cases that could not be filed. I tip my white hat to each of you for what you do.
Until next time, be sure to keep that white hat clean!