The $600 Lab Fee

I’ve heard a few recurrent questions recently regarding the imposition upon a defendant’s conviction of a $600 fee for support of the State Bureau of Investigation or for law enforcement purposes of a local government unit that operates a crime laboratory.

First, is such a fee discretionary?

Second, does it apply if the SBI laboratory report is not introduced at trial?

Third, is there a fee that applies if the defendant fails to waive his confrontation rights and requires a laboratory analyst to testify at trial?

The answer to the first two questions is yes.  The answer to question three is no.

The $600 fee is really a court cost authorized by G.S. 7A-304(a)(7) and (8), which state that the district court judge “shall,” upon conviction, order payment of $600 in certain cases for the services of the SBI lab or a local government crime lab that performs equivalent work.

The fee applies when the laboratories have performed DNA analysis of the crime or tests of the defendant’s bodily fluid for the presence of alcohol or a controlled substance as part of the investigation leading to the defendant’s condition. Despite use of the mandatory “shall,” the provisions go on to allow the court to “waive or reduce the amount of the payment upon a just cause to grant such a waiver or reduction.”

With the exception of the amount of the fee – which increased from $300 to $600 for offenses committed on or after September 1, 2009 – these statutory provisions have existed in their current form for several years.  G.S. 7A-304(a)(7), which applies to SBI lab services, was enacted in 2002, and G.S. 7A-304(a)(8), the provision applicable to local crime labs, was enacted in 2005.

One reason why the fees may have been the focus of recent attention is the notion that they might not apply if a report of the laboratory analysis is not introduced in evidence at trial.  The Supreme Court’s June 2009 opinion in Melendez-Diaz v. Massachusetts, discussed in this post, holding that that forensic laboratory reports are testimonial, rendering the affiants witnesses who are subject to the defendant’s right of confrontation under the Sixth Amendment, requires that the State produce a live witness to testify about the analysis, rather than simply introducing an affidavit. As a result, in some cases in which a laboratory analysis is performed, the resulting report is not admitted at trial due to the analyst’s absence from the proceeding.  Some have questioned whether the $600 fee may properly be imposed in such a case upon the defendant’s conviction.  Given that the statute requires only that the state demonstrate that the laboratory performed work as part of the investigation that led to the conviction, it is my view that the fee may properly be imposed in such a case, regardless of whether the analysis comprised part of the evidence at trial.

A related question is the third one posed at the outset of this post.  As I’ve said, I don’t think the applicability of the fee in G.S. 7A-304(a)(7), and (8) hinges on whether the lab report is introduced at trial.  Likewise, the fee may be imposed regardless of whether the analyst is subpoenaed for trial.  Finally, there is no separate fee triggered by the subpoenaing of the analyst; the fee is triggered by a laboratory analysis, not by testimony.

Thanks to my colleague Jim Drennan for his input regarding this post and to you folks for raising the questions. Are there other questions circulating regarding the imposition of this fee?  If so, please pass them along.