The state crime lab and other local laboratories perform nearly 10,000 blood toxicology analyses annually, the vast majority of them in impaired driving cases. Unlike breath analysis results, which the State has in hand before a person’s initial appearance in an impaired driving case, several months may elapse after a person’s arrest for impaired driving charges before the State receives a toxicology report analyzing the defendant’s blood. The reasons for the delay are several. It takes time for the sample to reach the laboratory. The testing process itself is more time-consuming than that associated with a breath-testing instrument’s analysis of a breath sample. Laboratory analysts have less time in the laboratory in a post-Melendez-Diaz world, since they often must travel to courthouses across the state to testify about their analyses. Finally, there is a shortage of analysts.
The News and Observer reported last month—in connection with a story on Senate Bill 3, which would create a regional crime lab in western North Carolina—that blood test results in impaired driving cases can take “up to a year to come back” from the state crime lab. I’ve heard anecdotal reports (like this) of even longer delays. As the turnaround time for toxicology reports increase, many have questioned how such delays affect a defendant’s right to speedy trial.
A court considering a defendant’s motion to dismiss on speedy trial must assess four factors: (1) length of the delay; (2) reason for the delay; (3) the defendant’s assertion of his or her right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The length of the delay is a triggering mechanism. When the delay reaches a threshold that is presumptively prejudicial, the court must inquire into the other factors. Given that delays approaching one year are considered to trigger this threshold for purposes of felony charges, see Doggett v. United States, 505 U.S. 647, 671 (1992), and “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge,” see Barker, 407 U.S. at 531, the postponement of misdemeanor impaired driving trials for periods approaching a year to allow time for laboratory toxicology testing easily triggers examination of the remaining three factors.
In considering the reason for the delay, Barker assigned different weights to different reasons: A deliberate attempt by the State to delay trial in order to hamper the defense weighs heavily against the government. More neutral reasons, such as “negligence or overcrowded courts” weigh less heavily against the government, but nevertheless must be considered “as the ultimate responsibility for such circumstances . . . rest[s] with the government rather than with the defendant.” Id. at 531. A valid reason, such as a missing witness, justifies appropriate delay. North Carolina’s appellate courts have required a defendant to offer prima facie evidence that the delay was caused by the neglect or willfulness of the prosecution, see State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003) (stating that the constitution does not outlaw good-faith delays that are reasonably necessary for the State to prepare and present its case). Only after the defendant has met this burden must the State offer evidence explaining the reasons for the delay. Id.
Thus, a question central to determining whether a defendant’s right to speedy trial has been violated by the delay of trial to obtain toxicology results is whether routine delays for purposes of forensic testing may be attributed to the neglect of the prosecution or, instead, whether such delays are neutral factors.
John Rubin wrote here about the court of appeals recent decision in State v. Sheppard, 2013 WL 601101 (February 19, 2013) (unpublished), finding that the defendant’s right to a speedy trial was violated by the fourteen month delay in her trial on impaired driving charges. The trial court in Sheppard weighed the seven-month delay before the State received the toxicology results “‘more neutrally,’” given that the State “‘should be given a reasonable amount of time to prepare its case.’” The seven month delay after the lab report was filed, in contrast, weighed more heavily in the balance against the State.
Several years ago, the court of appeals in State v. Dorton, 172 N.C. App. 759 (2005), did not disturb similar reasoning by a trial court, which found that delay caused by a backlog in testing at the State Bureau of Investigation was “not attributable to the District Attorney’s office.” Id. at 765. The Dorton court rejected the defendant’s contention that the delay was attributable to the State, noting that the defendant’s burden was to show prosecutorial neglect or willfulness. Similarly, the court of appeals for Maryland in Glover v. State, 792 A.2d 1160, 1169 (Md. 2002) considered delay resulting from an eight month wait for DNA test results “a valid justification in these circumstances,” given that “DNA evidence is highly technical, often requiring courts to allow more time for completion of the tests and review, by both parties, of the results.” The court cautioned, however, that the State has a duty to ensure “that critical discovery materials, such as DNA evidence, are properly monitored and accounted for, and not simply collecting dust in state or federal crime labs.”
Courts from several other jurisdictions have weighed delays associated with laboratory testing against the State in the Barker balancing test, but not heavily. See, e.g., Ben v. State, 95 So. 3d 1236, 1243, 1247 (Miss. 2012) (noting, with respect to thirteen month attributable to state crime lab, court’s reluctance “to weigh heavily against the State investigative delay caused by an instrumentality of the State, such as the state crime lab,” and citing relevant authority); State v. Magnusen, 646 So.2d 1275, 1281 (Miss. 1994) (concluding, with respect to a five-month delay for serology reports from the state crime lab, that “the official neglect of an understaffed and overworked crime lab gives this portion of the delay to the defendant but barely.”); State v. Tortolito, 950 P.2d 811, 815 (N.M. 1997) (weighing eleven month delay attributable to the DNA testing against the State, but not heavily, where DNA and other evidence requiring scientific analysis was tested in its normal order of priority in the State’s crime lab and testing was prolonged in part by the small size of the DNA samples collected from the crime scene); see also Vanlier v. Carroll, 535 F. Supp. 2d 467, 479-80 (D. Del. 2008), aff’d, 384 F. App’x 155 (3d Cir. 2010) (determining that State should not be held accountable for typical amount of time needed to conduct DNA test, which court calculated as two months, and holding that remaining ten months of DNA testing period should be weighed against the State, but not heavily, given facts of case).
Thus, it seems unlikely that a defendant can establish a speedy trial violation in a misdemeanor impaired driving case based solely on nearly year-long delays in toxicology reports. Yet, even if crime lab delays approaching a year weigh only slightly or not at all against the State, other factors, such as prejudice to the defendant may tip the balance in the defendant’s favor. And while delays of a year or less may be considered neutral or only slightly in the defendant’s favor, at some point the delays may become so long that the factor may weigh more heavily against the State.
District court litigators, tell us your experience. Are toxicology delays of a year routine? Are the delays routinely longer? Have you seen an uptick in motions to dismiss on speedy trial grounds? How do courts in your district weigh crime lab delays in the balance?
It seems to be taking 8 months or more here in Cumberland Co., NC.
Would such long delays actually effect the reported BAC, when the blood is finally tested?
I have a case with more than 25 months delay between date of offense and production of the results of a blood test. Several Buncombe County DWI cases are beyond 2 years. I am also interested as to whether the long delay can affect the reported BAC.
Alcohol normally continues firmenting as it ages in sealed bottles. But I’ve never heard of any disputes about the BAC in a blood sample changing over time. As for storing donated blood, it probably only needs to be sealed and kept at a specific temperature to prevent colaguating (drying).
To answer James’s question first, for blood samples the delays do not effect the sample unless the vial has been breached or contaminated. There is a chemical compound present in the vial when the sample is drawn that prevents any degradation, plus the vial is sealed.
As an ADA in the western part of the state, my experience with lab delays has been horrible. If the sample is from a death by vehicle we can get it in about six months, but for anything else our samples are not even getting assigned to an analyst until well past the one year point, and lately they are approaching two years with no action. For DWI’s and chemical analysis of controlled substances, for at least the last two years we have not received a test in under twelve months and are frequently having to dismiss at the one year point when the motion to dismiss is denied and then just hold the file to recharge if we receive the lab test before the statute of limitations run out. We’ve called the labs many times to check on the status of a sample, but always get the same response – if it involves a fatality, it will probably be completed in 12 months or less. If it does not involve a fatality, officially the answer we receive is that it is still waiting to be assigned to an analyst (some of the samples are 18 months old at this point). Unofficially, we have been told by the lab that if it does not involve a fatality it might never actually be examined. I feel bad for the analysts (or at least the few who haven’t quit yet) who probably bear the brunt of this, and it’s not their fault, but the SBI lab system is horribly broken and is a miserable failure, and the heads of the SBI should be ashamed and embarrassed.
Blood test results typically take a year and a half.
However our judges tend to make the state proceed without them and will not dismiss the cases.
Here in Wake County, the delays seem to routinely be longer than 1 year. Specifically for blood-drug cases, the delays are as long as 2 years or longer. Surprisingly, I have not seen many double jeopardy motions filed.
Wanted to clarify a typo in my earlier post – we’re dismissing to recharge when the motion to continue is denied. (I mistakenly wrote motion to dismiss).
Funny, dismissing to recharge when a motion to continue will not be granted has been held to be a purposeful and malicious delay of trial by the state, resulting in dismissal…
We have been told by SBI no new blood results will be issued for at least 2 years for DWI.
Wake County has 1 year delays, except now that the local CCBI is testing, I’ve had blood results back as soon as the first court date.
Here in Beaufort County we have been getting the results around 14 months. Most of the Judges will not continue the case for your results past 12 months. Just a month ago, I had a case that was 13 months old that went before the Judge. The defense attorney stated they were ready to proceed and the judge allowed it. I still won the case but, it was a lot harder.
I received the results a week later .15 BAC.
Its been at least a year in DWI cases I have had in Durham County. The length of time to get a test result back has steadily increased over the last 3 years in my experience.
I heard an officer testify in court a few days ago all of the blood analysts at the SBI lab quit except for one person. Can that be true?? Anybody heard similar?
Can anyone tell me when the statute of limitations runs out for dui? I got one 2 and a half years ago. My blood work is supposedly “lost”. I have taken every dui class, completed a SAIOP, and did a 10 day residential treatment… I am so ready for it to be over with. There was no fatality, single car – myself.
I have a DUI nearly 2 years ago and no bloodwork as of yet. My lawyer said in January that when I go to court tomorrow she will be having it threw out. I am hopeful! Ready to move on to the next part of my life! If the state isn’t releasing anymore bloodwork DUI related for 2 years, then I guess they won’t be getting mine back and the statute of limitations will def. have ran out.
It is so sad that DUI is not taken more seriously. I have had several loved ones killed by impaired drivers. Our leaders should make sure these toxicology reports return in a timely manner.
Waiting on drug analyst to come back in December it would make two years
when can I request a dismissal
As long as your not subject to that probationary crap, I could care less how long the wait goes on. Besides, testimonials usaully weeken in the defendants favar. Cops eventaully relocate or retire. This leaves the burden of proof on the State … not you. So sit back and crack open a cold one. Leave the worry over this to the high payed prosecuter. Maybe he or she will end up with a DUI befor they get a swing at you !
IReceived a ticket for DWI on Jan 4 2012. I am a 56 year old and have arthritis and spinal issues which require me to be on a heavy dose of a drug called Neurontin. A side effect is drowsiness. On this day I had also been prescribed Soma.I was driving with oth in my system. I became very sleepy and pulled off the highway into a car lot. I fell asleep before I came to a complete stop, striking a parked car. The car lot did not even file a claim on the slightly nicked parked car. One year and 8 months later, attorney tells me that the court is requiring people to either plea or take a trial, even though blood work isnt back yet.She advised me to plea. I did and received a 1 year suspended sentence with unsupervised probation. 24 hours community service. Almost 1000 dollars fee with 836.00 due jan 2. This is right after christmas, and i am the single mom of a 15 year old. My attorney knew all this. Why would she advise me to plea? Likewise if I had taken the trial,where is my evidence? Still at NC Crime Lab? This all happened in New Hanover County. My first DWI. Something sure doesnt seem fair in my case here.
It also would have been nice, in retrospect, to be able to tell the judge that I no longer own a vehicle and havent for 16 months. Although, up until coviction a month ago, I still had a lisence, I have chosen not to drive and have used Kats Taxi as my primary transportation. The proof is there. Honestly i am not going to feel the official loss of a lisence. I no longer want one. But I had to make a snap decision for trial right that day, or either plea. Doesnt seem fair. This fee at Christmas when my 15 year old has suffered enough doesnt seem fair. If it affected just me, i would not even be complaining. But he has suffered enough with our loss of transport. Likewise , believe me, in counting my blessings, I realize that i could have fallen asleep om a busy free way with him in the car and could have killed him and others. Thus my decision not to drive any more.
You make your own decision. Your attorney only advised you to accept guilt because your gave a statement of guilt concerning your medicine and coincidence of falling asleep.You failed to exercise your right to remain silent … right at the start. Instead: you waited until the officer finished his last question … which is when he read you that right. It’s completely useless to you at that point! Young Cops aren’t interested in helping or understanding: They’re only interested in getting the next strip. A seasoned high ranking officer tend to be more balanced.
MY BLOOD WAS GONE 28! MONTHS..CORRECT 2.4 YRS & FOUND GUILTY TELLING LAWYER..DUE PROCESS DUE PROCESS, AFTER TAKING THE 2.500 FOR THE CASE HE CREATING LIES FOR THE OFFICER..3 YRS YO THE DATE AND OFFICER REMEMBERS IN DETAIL AFTER TURN8NG IT OVER IMMED.TO A TROOP WHO ARRIVED ON SCENE..IM OL TIRED N SICK.NOW HE DIDNT APPEAL AND IM JUST STUCK NOT TO MENTION EVIDENCE HE DIDNT PRESENT WHEN A SRG.&OFF.LIED ABOUT 3 OFFICERS WHEN IN FACT HAVE NC DMV RECORDING WHERE THE THIRD OFFICER (DID NOT & FURTHERMORE DOES NOT!EXIST)32 YRS OF MU LIFE BEING ASSUMED GUILTY AND ONCE PROVING INNOCENCE?.With chronic pain and anxiety from burring baby brother just too tired..but.MC DESERVERS TO BE SUED FOR DESTROYING A 18 YR OLD BOY! Chance to be a productive member of society.Lincoin county NC HAS GOTTEN AWAY WITH THIS FOR DECADES!!!
My son has been waiting two years and did not have blood drawn. This is absolutely absurd. How is someone supposed to move forward with their life and continue being productive if there is nowhere to turn and no one cares. He has gone to classes, he graduated from college, he continues to work with rides from friends. What is someone to to do to get thru the system?
On the morning of August 18th 2015 I was driving home from an early morning Dr. appointment when I had a seizure while driving. I lost control of my vehicle and hit a fast food restaurant that was not open at the time. When the paramedics removed me from the vehicle I was slow to respond, so the police officer attending the scene decided to charge me with DUI. I gave blood samples to the paramedics on the way to the ER in the hopes that the results would help clear my name. You see I neither drink or use drugs. Upon arriving at the ER I had another gran mal seizure of such severity that I nearly broke the back board I was strapped to.
I later met with my neurologist there in Onslow County (Jacksonville) where my accident took place. He took one look at the list of medications I had been taking and pointed out that my seizure(s) that day were caused by an anti depressant I had been taking for over three years. This particular medication was notorious for causing seizures in the patients who took this drug. (It was not one that would limit driving, etc. ) My neurologist even wrote a letter for me confirming his medical opinion of my case. Even after seeing this the DA would not drop the charges.
My case is still pending. It has been twenty-one months since my accident and no blood results. I lost my job with the company I had been employed by for fifteen years as a result of the charges. Having an open DUI on my background check has caused me to miss out on numerous job opportunities. Namely with the fire department and school board here in Georgia. My family and I had to file for bankruptcy after my wife had her fourth surgery in under eighteen months.
My family and I are homeless, living with relatives in the Atlanta, GA area. Having pending charges on my background check has caused severe damage to my life and that of my family. It will be two years in August.
How can the State of North Carolina be allowed to high jack people’s lives like this. I have been punished seven fold for a reaction my body had to a medication I needed to take to survive. Has anyone ever considered filing a class action law suit against the state of NC because of this egregious and repeated inability to properly administer justice? I am interested to hear the thoughts of others. I am sure I am not the only one whose life has been turned upside down by the backwards system the State of North Carolina employs.