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Law Tutor, Esq.
Law Tutor, Esq., Lawyer
Category: Criminal Law
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If a toxicologist kit was not sealed properly, the integrity

Customer Question

If a toxicologist kit was not sealed properly, the integrity seals were not sealed over the tabs, like the kit instructions clearly state to do so, and the it was not labeled on the front as the USPS states it must say "EXEMPT HUMAN SPECIMEN" on the address side of the box, can it be submissible? The kit instructions are very clear and yet it was accepted anyway. This was for a blood test for a DUI/DUID test and the integrity seals were placed on the outer side of the box on both sides, leaving the tabs fully accessible, plus one of the flaps is sticking up, how can they accept it? They did not follow their own rules of how the kit is supposed to be sealed properly or mailed properly through USPS standards. Yet they did anyway. The integrity seals are so far away from the tabs on both sides, and it was mailed a day later from the hospital from where it was taken, then the lab received it on a Friday and it wasn't touched by the lab until the following Monday. Plus when they took the photographs of the box showing the contents, the paperwork that shows the chain of custody, was not photographed that was also supposed to be inside the box. They did received it because it's in the full report, but it was not photographed as being inside of the box where the kit instructions show it is supposed to be. They did not follow the instructions. How can it be submissible?? They should have to follow the rules of the kit shouldn't they??
Submitted: 11 months ago.
Category: Criminal Law
Expert:  AttyHeather replied 11 months ago.

Hi! I'm Heather. I've been a practicing attorney for the last 15 years, and I'd be happy to assist you for informational and educational purposes.

Expert:  AttyHeather replied 11 months ago.

One moment as I prepare a response.

Expert:  AttyHeather replied 11 months ago.

Most prosecutors would not even try to get this into evidence. This is because the test, as you described, was not done properly, and therefore, it is not credible or reliable evidence. If a prosecutor tried to get this into evidence, I would ask the judge to allow me to conduct questioning before the results were presented into evidence. I would ask questions concerning the proper procedures not being followed, and then I would move for exclusion after I established that the rules were not followed. I would argue that the test results probative value is very low, because the tests weren't done properly, and that admitting the results into evidence would have a high prejudicial effect. So basically the prejudicial effect outweighs the probative value. The judge would likely exclude at that point.

Has that answered your question?

Customer: replied 11 months ago.
Not clear what you mean. When brought this to info to my public defender, I had done research myself, he stated he told this to DA and was told he intended to proceed anyway and would have no affect on anything. Was told "too bad" by public defender as USPS mailed it anyway and tox lab accepted it, and lab accepted kit as is without notating issues I brought up regarding them not following procedures in own instructions on kit as to how supposed to be prepared for mailing etc. To me, that is them breaking their own rules and not following procedures laid out in rules and regulations as stated on kit instructions. Especially not put integrity seals on the tabs and just on the side of the box leaving it, easily able to get into, if you wanted to without breaking seals. Am going to upload the photos to show you, and even the tabs don't look like they are "secure." Was told, would not change outcome of test either way and shouldn't matter how was sealed, yet that is why there are specific rules and procedures in place as to how it is supposed to be sealed and mailed according to USPS and neither were followed. Thus, it shouldn't be allowed to be submitted into evidence since proper protocol wasn't followed. There is also a place on the custody report when the kit is received to notate things as this, and they could have notated the seals were not over tabs, and a flap was sticking up,and in one of the photographs, the box is not even secure around entire package, there are gaps around the box, so with hospital taking blood draw had for over 24 hours and had to store it, then USPS had for an entire day, and have no idea about their storage procedures, then lab received it on a Friday, and stored until finally touching it following Monday and photographing it, they have their storage procedures, all with the box, in the shape it was, in addition to what I mentioned with the flap being up, the box not totally secure and tight around the middle storage container, weather conditions, etc. and tracking number cannot be traced, there is no way to prove chain of custody of who had it when and for how long, and the fact that when the lab did photograph contents of the box, the kit instructions state that the paperwork is supposed to be inside the box, it was not photographed, so have no idea where paperwork came from as it was not on the outside of the container as there is no attachment to the box, in addition to the USPS requirement that in order for blood to be mailed, it MUST have the words EXEMPT HUMAN SPECIMEN on outside of the kit on the front of the box clearly marked on the address side and it is not there and it's not on any side of the box. Just the biohazard symbol. It should not matter if the USPS mailed it and should not have, it is a non mailable item if they did NOT follow those rules, and most of all, they did NOT follow the instructions of sealing the kit properly before sending it, and did not include the paperwork for the chain of custody inside the box, and if they did, there is no proof, as it was not in any of the photos they took when opening the kit and taking the required photos. So I did receive your response but if you could maybe provide it to me a little more in laymen's terms, that would be helpful. My public defender doesn't seem to care about this, and as I've said, I did this research on my own as he has not went over any of the evidence with me, the police report, tox report, etc, I found this on my own and provided this information to him and feel it's extremely crucial information as I don't believe they can use this evidence if they didn't follow their protocol and their own "rules" and regulations on how to submit evidence. If they are saying I broke a law and didn't follow rules, which I know I haven't went into my situation, but I have a lot of evidence to support why I'm not even guilty of anything, but they are trying to get me to plea into something I did not do. And I know my public defender is not helping me at all. Like I said, he has not went over ANY evidentiary evidence, gone over police report, I found errors many errors, times not matching, wrong charges, wrong descriptions, stating was passed out at wheel when was parked, keys not in ignition, talking to school principal when approached my car, n stated so in police report, so they can't say was passed out in one place, yet another by 2 officers I was talking to a person. Plus caught principal in 4 lies and can prove it n gave him that evidence. Am disabled and was mistaken for being impaired. I do take RX meds but have been for 10 to 12 years and been told it's been so long it wouldn't even affect me after this long and impair me at all, not even to the slightest degree n didn't' even take that morning. I have tremors n one affects standing n one speech but that doesn't make me impaired. Tox guy says I would be significantly impaired but doesn't know my history. Pub Def won't even try to contact private toxicologist
Expert:  AttyHeather replied 11 months ago.

I'm sorry. I will need to opt out and see if another expert can assist you with this.

Customer: replied 11 months ago.
Can you explain this part of your response?? I would argue that the test results probative value is very low, because the tests weren't done properly, and that admitting the results into evidence would have a high prejudicial effect. So basically the prejudicial effect outweighs the probative value.
Customer: replied 11 months ago.
Just since the tests were done properly but the kit was not prepared properly so just trying to understand the response you gave gave above. The other part where you are opting out, I will do as you asked. I just send the photos to show you how the seals were not in the right place. that is what the photos were of.
Expert:  Law Tutor, Esq. replied 11 months ago.

Thank you for using JustAnswer. I am Attorney Tillman, a licensed attorney for over 20 years and I look forward to assisting you. I would be happy to provide general information regarding your question. I see that the other attorney answered your question, but you are not clear about the answer. To clarify plainly, the attorney for the defendant should file a motion to to exclude the evidence on the grounds that the tampered evidence, which was not sealed or handled properly will prejudice the defendant in such a way that the jury will be more likely to be swayed against the defendant, when compared to the value of proof it would give in the case. Evidence where the value of proof is low compared to how much the tampered evidence would sway a jury or judge against the defendant, should be excluded. The attorney needs to make that motion and argue that on behalf of the client. Does this help?

Customer: replied 11 months ago.
Kind there a way to get this excluded with this being done without going to trial? With this being done with presenting this to the DA?? He has stated that is was going to proceed anyway but if the attorney can state the information to the judge prior and/or the DA once again that the rules were not followed, they would have no case if the tox kit cannot be submitted into evidence, thus they have not case and a trial can be avoided. It is not that the kit was tampered with per se, it is sealed, however, the rules were not followed as to how it was sealed according to the rules and procedures and should not be allowed to even be used. If it can be done when I have my next hearing which is when I have to decide whether nor not I have to chose to plea to something I am not guilty of to begin with, or choose to go to trial and lose the option of the plea, that would be the best scenario. So what I'm saying is, that even though it doesn't show tampering, it was not followed as to how it should have been sealed properly, and mailed according to the laws of the USPS, and should have not even been accepted by the lab in the first place. Thus it should not even be allowed into evidence and the DA would have no case to even proceed. If the attorney can stop it at the next hearing, and get this across to the DA that since it was not done correctly, that he can show that if they went to trial, that the evidence would be thrown out because of the fact they did not follow procedures, he would not have a reason to go to trial and he would not have a case at all. Is this correct? Or would I have to go to trial to get this done? Or can the attorney present this at the next hearing to attempt to get the evidence thrown out at that point based on this and let her decide at that point if there has to be a trial to let the jury decide? As I mentioned, there is no evidence of tampering, just that the procedures were clearly not followed and the photographs proved that and can be shown at the next hearing. I do not want to have to go to trial and if he has no tox screen, he has no case period.
Expert:  Law Tutor, Esq. replied 11 months ago.

Yes - the procedural manner in which this is done varies from jurisdiction to jurisdiction. Here in Virginia, we have pre-trial motions. A Motion to Suppress (exclude) Evidence is what I would file for my client to keep the evidence out. If the evidence is excluded, then I would argue the Motion to Dismiss. These are pre-trial motions. You have a Public Defender. I have faith in the majority of Public Defenders that I know - I was a Public Defender, and so was my dad (as a side note). Honestly, you should consult with him. Your Public Defender can tell you more about pre-trial motions. Don't stress yourself out over this. Continue to do your research but allow your attorney to do his job. I am sure that he would not mind your input. Speak to him about this. If the evidence is allowed in, there are plenty of other motions to be made later. I hope this helps. Take care!

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Expert:  Law Tutor, Esq. replied 11 months ago.

Does this answer your question? I am here to help. Let me know. Thanks.

Customer: replied 11 months ago.
I had uploaded the files of the pictures of the tox kit and how the seals were placed to the previous attorney I was speaking to and she just passed me off. Are you able to view them to see what I am speaking about to see that they did not follow their own procedures clearly stated on the instructions that the integrity seals on the outer box MUST be placed over the tabs and they were placed clear on the outer side of the box leaving both tabs clearly exposed and as well as the outer container having gaps all the way around the outer container, as well as according the official procedures by the usps it MUST be marked EXEMPT HUMAN SPECIES on the front of the kit on the address side in or for it to even be mailed and this was not done and not marked anywhere on the box. In addition, in the photographs taken by the lab, the paperwork showing the chain of custody was supposed to be included inside the box, according to the kit instructions were not part of any of the photographs and should have included all photographs of what was contained in the kit. They had the chain of custody but the chain of custody is missing from the hospital from the over 24 hours of what they did with it, ups and what they did with it as they had for 24 hours until delivering to the lab, and the chain of custody at the lab, as they received on a friday signed at 3pm and didn't touch it until the following monday. None of that is documented in the police report. Plus the tracking information isn't traceable any longer so there is no way to trace any of this information with ups. Again, it shows no tampering because the seal is there but it's so far to the end of the box, and the tabs are clearly accesible and sucken in, and and one flap is sticking straight up. The lab has a place in their notes to indicate the status of how the kit was received, but never made those notations. Since the seals were not properly placed and that is clearly in the instructions, they shouldn't have accepted it in the first place in that case, as well as the flap sticking straight up and the gaps around the box not tightly secure around the outer container. They did not following the proper procedures of sealing the kit. That is why I'm trying to see if can be suppressed at my next hearing and avoid a trial as if they don't have this evidence, there is no case period.I'm going to upload the files in case you didn't have access to them before as well as the instructions for the kit and the rules for the usps for mailing drug screen kits.
Expert:  Law Tutor, Esq. replied 11 months ago.

Hello. Did you see my answer from yesterday? I saw your photos, but remember, the judge (or jury) is the trier of fact. The judge will determine the weight these photos will have in the motion to exclude the evidence when you attorney puts on the pre-trial motion. I hope this helps. Good luck to you!

Customer: replied 11 months ago.
I didn't know if you saw my photos. Sorry about that. So just to be clear, I can see if he can try to get it suppressed BEFORE deciding to go to trial. My next hearing I either have to choose the plea or go to trial. I don't want to go to trial and if it can be suppressed before hand, there is no need for a trial because that is his only evidence. So he would have to make a motion to suppress and it's up to the judge or the DA to agree based on that evidence, which at first attempt with my own research as he has not been working with me at all, the DA says he is going to proceed anyway but continuing to research on my own and finding similar cases, it's possible it could get dismissed and avoid both the plea and a trial altogether?? Do you agree with looking at my photos and the regulations with the kit that they were not followed?
Expert:  Law Tutor, Esq. replied 11 months ago.

Although I cannot tell you for sure that the procedures were not followed, it is a good argument, in my opinion. You really need to speak with your attorney about the strategy concerning whether or not to take a plea or go to trial. Generally the pre-trail motion is just that. It is already determined that you are going to trial and then the pre-trial motions take place before the actual trial. See if your attorney can get the evidence thrown about before deciding to go to trial. If he cannot, I am certain that he will make the appropriate pre-trial motion to exclude it. I hope this helps you. Take care and good luck to you.

Customer: replied 11 months ago.
Just one last question as my public defender in all this time has not went over any discovery at all with me. I have done all of this research on my own. If I do have to go to trial, or set for a trial, he has not answered this at all, does that mean my plea is off the table? I can't get any communication out of him at all with over 40 some emails, numerous unreturned messages, 4 to his supervisor unreturned and Im being pushed into a plea that I don't agree with, especially not even going over any evidence, ie the police report, tox screen, other evidence I have proving statements there was lying and deceiving, involved, even proven on the police video, which I obtained, witness statements, etc. He has angered the judge by going in completely unprepared due to the fact.
Expert:  Law Tutor, Esq. replied 11 months ago.

If you go to trial, the plea is off the table. But later on in the trial, if the prosecution sees they are in trouble, they may offer it again or they may not. If you feel you are not happy with your attorney, send a certified letter to the public defender's office asking for a new attorney. That's the best I can do as far as information is concerned for your case. I spent a lot of time with you and I am sure that I helped you, so please don't forget to rate me five stars. I hope it all turns out okay for you. I recommend that you continue to be proactive in investigating your own case. That is very smart and commendable! Take care!

Expert:  Law Tutor, Esq. replied 11 months ago.

Okay? So have I answered all of your questions?

Expert:  Law Tutor, Esq. replied 11 months ago.

I see that you don't need a call so I will close this out at this time. Please don't forget to 5 star rate me on the rating section of this page so I can receive credit for helping you. There is no additional charge to you for rating me. Thanks!