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?