The New Illinois State Police DUI Crime Laboratory Alcohol and Drug Test Discovery Rules

By Donald J. Ramsell

Stories reporting laboratory scandals regarding improper testing in crime labs for alcohol and drug testing results are rampant throughout the United States. Some have resulted in the reopening of thousands of drunk driving cases. See e.g. October 20, 2017 article in the Washington Post ” Another week, another crime lab scandal” (crime lab staff withheld exculpatory evidence from defense lawyers in thousands of drunken-driving cases since 2011) https://www.washingtonpost.com/news/the-watch/wp/2017/10/20/another-week-another-crime-lab-scandal/?utm_term=.eff60e1cf29a. Most of these errors were found by defense attorneys after judges granted them access to the crime laboratories records and other data.

In Illinois, the defendant’s right to obtain full discovery of crime laboratory data, mistakes and misconduct in DUI cases has been a long and arduous road.

In many instances, the right of access by a defendant to information regarding the chemical tests has been restricted by case law and Supreme Court Rules. For example, in People v. Schmidt, 56 Ill.2d 572, 309 N.E.2d 557 (1974), the court indicated the defendant only had the right to receive a copy of the breath alcohol machine ‘ticket’ (now called a print out). Nothing more about the testing process or the instrument’s workings was mentioned. Since then, Schmidt has been re-interpreted as defining the mere starting point of discovery rather than an endpoint. People v. Kladis, 2011 IL 110920, 960 N.E.2d 1104 (2011)

Supreme Court discovery rules for criminal cases allow for an extensive amount of discovery. Unfortunately these rules are limited to felony cases, and the only rule specifically governing defense access to crime lab testing data is limited to DNA tests.

In 1982 a statute was enacted that stated that

“Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to the person or such person’s attorney.”

625 ILCS 5/11-501.2(a)(4)

Even though this statute has been on the books for 36 years, there is not a single reported case where this statute has been cited as a basis to grant a defendant the right of access to information regarding the crime lab’s testing process for the presence of alcohol or other drugs. For example in People v. Teller, 207 Ill. App. 3d 346, 565 N.E.2d 1046 (2d Dist. 1991) the quashing of a subpoena seeking all maintenance and repair logs for machine used to test defendant’s breath and all information regarding repairs made to that machine was affirmed under the (now) mistaken belief that Schmidt was a limitation on discovery. No mention was made in the Teller opinion of 625 ILCS 5/11-501.2(a)(4).

The notion that crime laboratories are above reproach has lost favor over the past decade as scandal after scandal has revealed a variety of mistakes, coverups, incompetence and a failure to follow basic scientific protocol in these facilities. The Marshall Project has been collecting many of these instances. See, e.g. https://www.themarshallproject.org/records/4146-crime-lab-scandal for a link to many of the lab scandals across the country.

Some so-called ‘tests’ have been revealed to lack any validation and are now considered voodoo science. Even the FBI has acknowledged that their tests were wrongly reported over 90% of the time. The Washington Post made clear in an article that begins with a punch to the gut: “Nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000,” the newspaper reported, adding that “the cases include those of 32 defendants sentenced to death.” https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html?utm_term=.6f3cef6aae1b (Last accessed 8-13-18)

As a result of a spate of cases where convictions were overturned or cases re-opened, the U.S. Congress commissioned the National Academy of Sciences to conduct a study to determine how to improve forensic sciences in courtrooms in order to protect against the use of erroneous results and unscientific methods in criminal prosecutions. In 2009, the National Academy of Sciences released a report entitled Strengthening Forensic Science in the United States: A Path Forward, which investigated how evidence involving unvalidated methods, lab mistakes, staff incompetence and misleading testimony was used in criminal cases to obtain wrongfully convictions.

Amongst other things, the NAS report recommended:

To ensure the efficacy of the work done by forensic scientists and other practitioners in the field, public forensic science laboratories should be made independent from or autonomous within police departments and prosecutors’ offices, the report says. This would allow labs to set their own budget priorities and resolve any cultural pressures caused by the differing missions of forensic science labs and law enforcement agencies.

The NAS report also concluded that two criteria should guide the law’s admission of and reliance upon forensic evidence in criminal trials: the extent to which the forensic science discipline is founded on a reliable scientific methodology that lets it accurately analyze evidence and report findings; and the extent to which the discipline relies on human interpretation that could be tainted by error, bias, or the absence of sound procedures and performance standards.

In a press release that accompanied the study, the NAS summarized as follows:

The report points out the critical need to standardize and clarify the terms used by forensic science experts who testify in court about the results of investigations. The words commonly used — such as “match,” “consistent with,” and “cannot be excluded as the source of” — are not well-defined or used consistently, despite the great impact they have on how juries and judges perceive evidence.

Continuing, the press release stated:

In addition, any testimony stemming from forensic science laboratory reports must clearly describe the limits of the analysis; currently, failure to acknowledge uncertainty in findings is common. The simple reality is that interpretation of forensic evidence is not infallible — quite the contrary, said the committee. Exonerations from DNA testing have shown the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis.

Press Release 2-18-2009
http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589

In DUI cases, blood testing for the presence of alcohol and other drugs employs a principle called gas chromatography (GC). For drug cases, analyses includes both chromatography and mass spectrometry. A step-by-step protocol (called a ‘method’) must be used to process and test samples. Many crime labs have developed their own methods. When in-house methods are used, they must be studied and validated. Use of these methods are not foolproof. The United States Supreme Court found that the risk of error that can occur while performing such testing was sufficient enough that a defendant must have the right to confront the analyst who performed the testing. In the opinion, the majority noted:

Gas chromatography is a widely used scientific method of quantitatively analyzing the constituents of a mixture. See generally H. McNair & J. Miller, Basic Gas Chromatography (2d ed.2009) (hereinafter McNair). Under SLD’s standard testing protocol, the analyst extracts two blood samples and inserts them into vials containing an “internal standard”-a chemical additive. The analyst then “cap[s] the [two] sample[s],” “crimp[s] them with an aluminum top,” and places the vials into the gas chromatograph machine. Within a few hours, this device produces a printed graph-a chromatogram-along with calculations representing a software-generated interpretation of the data.

Although the State presented testimony that obtaining an accurate BAC measurement merely entails “look[ing] at the [gas chromatograph] machine and record[ing] the results,”, authoritative sources reveal that the matter is not so simple or certain. “In order to perform quantitative analyses satisfactorily and … support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why.” Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed.2006). See also McNair 137 (“Errors that occur in any step can invalidate the best chromatographic analysis, so attention must be paid to all steps.”); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests § 16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples). Even after the machine has produced its printed result, a review of the chromatogram may indicate that the test was not valid.

Nor is the risk of human error so remote as to be negligible. Amici inform us, for example, that in neighboring Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span, prompting the dismissal of several criminal prosecutions. An analyst had used improper amounts of the internal standard, causing the chromatograph machine systematically to inflate BAC measurements. The analyst’s error, a supervisor said, was “fairly complex.” Ensslin, Final Tally on Flawed DUI: 206 Errors, 9 Tossed or Reduced, Colorado Springs Gazette, Apr. 19, 2010, p. 1 (internal quotation marks omitted), available at http:// www.gazette.com/articles/report-97354-police-discuss.html.

Bullcoming v. New Mexico, 564 U.S. 647, 654, 131 S. Ct. 2705, 2711, 180 L. Ed. 2d 610 (2011)(some citations omitted)

Defense attorneys in DUI cases have now begun the process of obtaining their own training in gas chromatography and mass spectrometry (the testing processes most commonly used in blood testing for alcohol and drugs in DUI cases). The National College for DUI Defense (ncdd.com) offers training presently held at the Schimadzu Center of the University of Texas.

Defense attorneys with this training have begun to subpoena the crime labs and request the data which is necessary for a true independent verification of the test process and test results in DUI cases.

These subpoenas have then resulted in the prosecutors filing motions to quash subpoenas, along with the Illinois Attorney General filing additional motions to attempt to prevent the disclosure of this lab data under the guise of ‘relevance’ ‘materiality’ and claims that the turnover of such material would be ‘unduly burdensome.’ As a result of the improved knowledge of defense attorneys, along with the increased skepticism of the system, and the willingness of some judges to provide the defense with more information about the testing process in crime laboratories. This piecemeal litigation has resulted in multiple hearings and multiple rulings in every individual case or courtroom across Illinois – while some courts allow for full discovery, others would allow for only limited discovery or none at all.

Pursuant to 11-501.2 of the Illinois Vehicle Code, the Illinois State Police have been granted the power to promulgate rules regarding the manner in which testing shall be performed in DUI cases. CITE

Because of the significant increase of cases statewide where the defense has filed discovery demands for lab data in the past few years, the Illinois State Police decided to promulgate rules governing the turnover of lab data in order to attempt to streamline the disclosure process.

These rules are found at 20 Ill. Admin. Code 1287. They became effective on July 27, 2018 (?) The object of the rules was to minimize the amount of time being spent in court litigating basic lab data discovery; to help the lab process subpoenas requesting information, and to assist the courts in dealing with scientific issues that might be beyond the basic knowledge of jurists.

Another purpose of the rules is to provide more transparency to the testing process. In that regard, the rules immediately note that these standards are “minimum standards for supplying toxicological evidence and is not intended to limit the production or discovery of material information.” (See Rule 1287.30 “Obligation to Produce”).

Every defense attorney who accepts a DUI case involving a police-requested toxicological test of blood, urine, or other bodily fluids for the presence of drugs or alcohol, must make a request for this information, in this authors opinion. The failure to request and then review this information might fall below the accepted standard of care where the test results are a major basis for the determination of guilt of an accused. In many cases involving a fatality or great bodily harm, the toxicological test results could be the only evidence of intoxication if the defendant was too injured to be interviewed or otherwise examined for signs of intoxication through field sobriety testing.

The rule requires the proponent of the test result (i.e. the prosecutor in most cases) to either provide the lab data to the defense of to make it “otherwise available.” (Rule 1287.30)

Highlights of the information that will be made available include:

• “Quality issue” reports – these reports typically reference errors that have been committed by the analyst or problems with the testing process. Note that the Rule limits the minimum disclosure to only those reports that ‘relate’ to the specific test in the case.
• Proof that the standards and controls used in the process were within guidelines. Standards and controls are some of the major checks and balances to ensure a vail or accurate result.
• Proficiency testing of the lab and/or the analyst for 2 years prior to testing. These tests are generally given internally and externally as a check on the testing process and competency of the analyst.
• Any records or reports involving discrepancies, defects, or laboratory errors in the test for that particular analysis, as well as the reasons for the errors.
• Maintenance records for one year prior to the test. These records can assist in determining whether the machine was or was not well-maintained and in good working order at the time of the test.
• Uncertainty calculations (if performed). It is an indisputable principle of science that all measurements contain uncertainty (a ‘margin of error’). Basic universal toxicological standards require that a test result be accompanied with a reported uncertainty (ex. “.081 g/dl with a range of uncertainty of +/- .005″). See e.g. International Standards Organization (ISO) JCGM 100:2008, GUM 1995 with minor corrections ” Evaluation of measurement data – Guide to the expression of uncertainty in measurement“
• Method validation studies, if they exist. Method validation is the process that must be performed in order to prove that a process has validity; it also reveals the limitations in the process that relate to specificity (i.e identifying ethanol and determining false positive or false negative rates) limits of detection and limits of quantitation. A method is not considered scientifically reliable unless it has first been validated. Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).

While these rules are a great starting point, they are still not complete. For example, maintenance records about malfunctions that occur after the test are not disclosed by this Rule. Nor are proficiency tests that happen after the test, where an analyst’s testing errors could first be revealed.

Additionally, the Rule does not cover disclosure of the entire batch run’s data and documentation. Since samples are generally run in a batch of samples, errors that occur during any part of the run can be of significant importance in determining the acceptability of the result for any test within the batch. Analysts are taught that all test results in an entire batch run should be rejected if certain errors occur on any single sample (for example: an error occurring on sample #7 might require that the result of sample #13, and all others, also be rejected). Defense attorneys should therefore ask for all of the data for the entire batch run and not just for the defendant’s sample.

It is important for all defense attorneys, jurists and prosecutors who work in this field to understand the basic science behind the testing processes. Judges need to act as the gatekeepers of evidence and not simply ‘pass the buck’ to an uneducated jury to determine the validity of a so-called test result, by admitting evidence willy-nilly. No longer should they ‘presume’ that a crime lab test result is correct without proper proof.

For defense attorneys, blindly accepting test results without independent verification leads to an inadequate representation.

For prosecutors, failing to produce the data underlying the test results (as required by the new ISP rules) may lead to a denial of due process.