Lab Fees Are a Cost, Not Restitution

Laboratory expenses for analysis of controlled substances used to be ordered as restitution. Since 2002, they have been a court cost. There is a difference.

Years ago, when a defendant was convicted of a controlled substance offense and the State’s investigation of the crime involved a lab analysis, G.S. 90-95.3(b) allowed the court to order $100 in restitution to the State of North Carolina for the expense of the analysis. That was a somewhat dubious type of restitution. The State Crime Lab was not the “victim” of the defendant’s drug crime. It was, to the contrary, doing exactly what the government had funded it to do: analyzing drugs. But that’s how the statute was set up back in 1989. And the court of appeals upheld it against a constitutional challenge. State v. Johnson, 124 N.C. App. 462 (1996).

Nevertheless, the General Assembly repealed the restitution provision in 2002, effective October 1 of that year. In its place the legislature enacted G.S. 7A-304(a)(7), a $300 court cost for cases where State Bureau of Investigation laboratory facilities were used to perform DNA analysis, tests of bodily fluid, or analysis of a controlled substance possessed by the defendant as part of the investigation leading to his or her conviction.

That $300 cost has since evolved into the $600 costs in G.S. 7A-304(a)(7) (State Crime Laboratory, with the money remitted to the Department of Justice), (a)(8) (local government crime labs, with the money remitted to the general fund of the local government that operates the lab), (a)(8a) (private hospital toxicological testing, with the money remitted to the State Treasurer for support of the General Court of Justice), (a)(9a) (digital forensics by the State Crime Lab, with the money remitted to DOJ), and (a)(9b) (digital forensics by a local government lab, with the money remitted to the general fund of the local law enforcement unit for laboratory purposes). All of those are court costs, not restitution. They shall be ordered when the requisite investigation or analysis has happened, and, in the case of analyses done at local government labs or a private hospital, the court has found that the work is the equivalent of the work done by the State Crime Lab.

Though lab fees have been a cost for a long time, they still frequently get presented to the court as a request for restitution on form AOC-CR-611, the Restitution Worksheet. Sometimes the court orders them that way. There are several consequences to ordering them as the wrong type of monetary obligation.

First, it’s contrary to statute. Any defendant ordered to pay the amount as restitution could challenge it; there is no longer an enabling statute as there was when the court of appeals decided Johnson.

Second, thinking about lab fees as restitution misconstrues the judge’s authority to relieve the defendant of the obligation to pay them. Restitution is discretionary, but costs are styled in mandatory terms and must be ordered when applicable unless the court waives them pursuant to a written just cause finding (or, in the case of (a)(7), (a)(8), or (a)(8a), waives or reduces them).

Third, ordering the lab fees as restitution puts them in the wrong disbursement priority position under G.S. 7A-304(d)(1). If they get ordered as victim restitution, they would get priority over costs due the county and city and fines due the public schools. If they get ordered as restitution to an entity other than a victim, they still come before costs due the State.

For all of these reasons I recommend against ordering lab fees as restitution, or using the restitution worksheet to convey to the court that the fees should apply. Drug buy money (discussed here) is still restitution, G.S. 90-95.3(a), but the lab fees are a court cost and should be entered as such on the bill of costs when applicable.