Sorry it has been so long in getting back to you. I have been dealing with personal issues from the time I sent the last series of questions. One problem was my computer was down for about 3 days due to a hacker.
Thank you for the information: I thought it might be good to respond to the letter to the court because I am sure the only reason the prosecution posted that letter is they felt it would help their cause and it is a good chance the judge will read it at some point. The following is a response. Let me know what you think.
COMES NOW the Petitioner, name, and hereby responds to the State Response to Petitioner’s Motion for the Production of Exculpatory and Mitigating Evidence.
The State does not acknowledge the receipt of any exculpatory evidence after the trial in this cause, however the State did attach a copy of a letter from OSBI to the Chairperson of ASCLD/LAB, the accrediting organization for OSBI laboratories. The letter, date Aug. 8, 2013, was in response to a complaint made to ASCLD/LAB about the questionable testimony of Mr. alleged in the Application for Post Conviction Relief in this cause at motion in limine hearing and trial on Nov 9, 2011. The complaint was made after the filing of the Application for Post conviction relief. The letter, signed by OSBI Director of Criminalistic Services Division, defends the testimony of Mr. as being based on scientific studies but gave no proof . Since the State filed the letter, the Petitioner responds to the main points of the letter as follows:
(1.) The letter notes that after receiving the complaint from ASCLD/LAB, OSBI reviewed a number of documents including two books about Marijuana. The letter states that " n addition to reviewing the above documents, we solicited input from four different experts (two serving in leadership positions with the Scientific Working Group for Forensic Toxicology and two serving in leadership positions with the Society for Forensic Toxicologists. Specifically, we asked these experts whether their organizations had any guidlines (published or draft) which would provide expectations or best practices for testitifying regarding THC impariment, how quickly THC mebabolizes, and expected differences in THC concentrations and impairment if a sample is collected one hour post collision. We received feedback from three of the four individuals contacted...."
Response to statements in point 1: With all the documents reviewed and experts consulted not one single word from the listed book and report on marijuana studies nor a single word from the experts consulted about several different questions related to THC was given in the letter to support Mr. testimony. Not only that, the most important question of all was not even asked. That would be does 1-1.5 ng/ml of THC in a persons blood cause driver impairment? This question was not asked of the experts nor did they quote from any of their reference books anything to support this statement made by Mr. .
However, an excerpt from a study found on National Institute of Health website (http://www.ncbi.nlm.nih.gov/pubmed/17916224), titled "Developing Limits for Driving Under cannabis" states the following:
"...A comparison of meta-analyses of experimental studies on the impairment of driving-relevant skills by alcohol or cannabis suggests that a THC concentration in the serum of 7-10 ng/ml (appr. 3.5-5ng/ml whole blood) is correlated with an impairment comparable to that caused by a blood alcohol concentration (BAC) of 0.05%. Thus, a suitable numerical limit for THC in serum may fall in that range..."
According to this study the amount of THC needed to cause driver impairment is 3.5-5 ng/ml in whole blood not 1-1.5 ng/ml that Mr.has stated in the Motion in Limine Hearing and trial.
That study found on the National Institute of Health website is by the same group of international experts who also wrote the larger more detailed study "Developing Science-Based Per Se Limits for Driving Under the Influence of Cannabis (DUIC)" which was used by the Petitioner as his primary evidence study in his Application for Post Conviction Relief. The letter spent a paragraph criticizing this study trying to minimize it’s credibility. But these experts are accepted as scientific experts by the National Institute of Health in the field of driving under the influence of cannabis. It would be difficult to find a higher level of credibility than that.
The letter also spends a lot of time stating one other expert(different from the four noted above) came to same conclusion that Mr. did but again gave no scientific references to back up that expert’s conclusions.
(2.) The letter also spends a great deal of time explaining the complaint overstated what their analyst, Mr., testified to. The letter says that the complaint alleged their analyst testified that concentrations of 1-1.5 ng/ml of THC will cause impairment, the trial transcripts show that their analyst testified that their analyst stated, "Studies have shown from 1 to 1.5 nanograms per ml of delta-9-THC in a person’s blood can cause a person’s ability to operate a vehicle to be somewhat impaired.."
Response to (2). That quote is correct. But the very next sentence in the transcript says the following:"..What those levels (1-1.5ng/ml) will normally cause is a decreased car handling. That means tracking on the road. They will lose some of that. They’ll have somewhat poor coordination. Their reaction time will be slowed. So their reaction time is essentially increased. It takes longer for them to react and stop the car than if they weren’t on it. They have drowsiness. They have poor psychomotor skills and disorientation of time and space..."
So the 4 sentences that followed completely destroys OSBI’S argument that their analyst, Mr. , only said can cause not will cause
Further OSBI did not address the statements in the Motion in Limine Hearing where their expert gave proffered testimony so the Trial Judge could determine if he would allow any marijuana evidence into trial. Perhaps they avoided the transcripts of the Motion Hearing because Mr. also says 1-1.5 ng/ml will impair...
On page 9 of the Motion in Limine Hearing transcript Mr. says: "..It’s going to be my opinion that all the studies that I’ve read and the training that I’ve had, concentrations that we found in Mr's blood, which is 1.1 nanograms per ml of blood, is significant to cause a person’s ability to be some what impaired operating a motor vehicle. Concentrations of 1-1.5, the studies have shown, will impair a person’s ability to drive a car to different extent on different individuals.
So again these statement of Motion in Limine Hearing completely destroys OSBI’S argument that their analyst, Mr. , only said can cause not will cause. In this case will impair.
. In a concluding paragraph the letter says, " As I mentioned above, we have conducted a preliminary review of documentation and have determined from that review that their is scientific data to support our analyst testimony..."
The letter states that OSBI has determined that there is scientific data to support their analyst testimony but they did not produce one word of evidence to support Mr. testimony.
The three challenges in the Application for Post Conviction Relief and the complaint were that there was no evidence to support Mr. statements that:
1. 1-1.5 ng/ml of THC causes driver impairment,
2. That THC cannot be detected in the blood within 4 to 6 hours,
3. And that he could tell with "scientific certainty" that the level of THC was higher one hour before blood was drawn without knowing the time THC was ingested and without knowing the amount of THC ingested.
These challenges still stand. After presenting 3 pages of arguments OSBI did not present one word of evidence from their 4 experts or their studies to support Mr. statements or refute the statements the Petitioner provided from studies that disagree with Mr. statements.
WHEREFORE, The Petitioner respectfully XXXXX XXXXX Court see the information in the letter from OSBI to ASCLD/LAB as a desperate attempt by OSBI to help Mr. but provided no evidence to do so.