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Maverick, Attorney
Category: Legal
Satisfied Customers: 6392
Experience:  20 years experience as a civil trial and appellate lawyer
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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?? I have photos of the kit to show where the seals were placed and how the flap is sticking up on the box and also a copy of the kit instructions. I take prescription meds and have for 10 to 12 years and they have built up in my system, the doses have not changed. I did not take them the morning the test was taken but they were obviously in my system. According to my doctors,the affects of the meds, especially over this many years, have less and less of an affect and wouldn't even impair me,even to the slightest degree at this point over this many years.I have passed every drug test I have ever taken, I am well below even the therapeutic level but the toxicologist just states I would be severely impaired on the meds I take which my doctors say is just not true. At this point, after so many years, I would actually be 'normal." I am disabled with orthostatic tremor and essential tremor which affects my voice and my disability was mistaken for impairment. I have many specialists with medical records to back up my medical issues and when I get under duress, my tremors get worse, especially my voice, I stutter, repeat, having issues getting my words out and even slur. My orthostatic tremors, I am unable to stand without holding on to something and they go away when I walk or sit down. I was sitting in my car, texting, and talking to the school principal regarding a horrible issue my 11 yr old daughter went through at the school, keys not in ignition and involved a boy in her class and she is not aware of the issues with my voice, just my standing. She called the police and my disability was mistaken for being impaired and it was then way passed the time to take my medication and my tremors only became worse due to that and I was under extreme emotional duress. I was in complete shock that she would call police but know it was in retaliation to me calling the school board on her for not reporting the sexual assault on my daughter that was discovered and reported to the counselor and her at the school. The biggest issue is the fact that the DA is allowing this into evidence when they did not following the policies and procedures for preparing the kit and the lab accepted it anyway without notating how it was received. My public defender has basically said, "too bad", they accepted it and are going forward with it and I did all the research as to finding that it was not sealed correctly, no chain of custody included or photographed, and that the laws of the USPS were not followed either. Can they really use this as evidence if they did not follow the clear regulations as notated on the kit regulation instructions?
Submitted: 11 months ago.
Category: Legal
Expert:  Maverick replied 11 months ago.

Welcome to Just Answer! My name is***** give me a few minutes to review, analyze and/or research your inquiry and I will be back.

Expert:  Maverick replied 11 months ago.

You are correct and when the prosecution tries to introduce that evidence at trial your lawyer needs to object on the grounds that a CHAIN OF CUSTODY WAS NOT PROPERLY ESTABLISHED. If your defense lawyer is not willing to do that, then you may want to file a motion asking for another public defender.

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Customer: replied 11 months ago.
Can this be done at before my next hearing or before my next hearing in which I am expected to choose whether to choose a plea or go to trial as I don't want to go to trial and if it can be presented that the procedures were not followed, they would have no evidence at all and the DA would have no case as the toxicology results are the only thing they have to even have a case period. If they don;t have that evidence and it can be excluded, and be thrown out at the next hearing, there would be no need to proceed. If I can get him to provide this information to him and get this to the DA or to the judge for the motion to suppress the evidence prior to the court date/hearing on the 28th, they have no case at all. As I mentioned, I do not want to have to go to go to trial and if it can be suppressed before that date, they would have too drop the case under that circumstance wouldn't they since that is what the DA is saying they are basing the entire case on to begin with.
Expert:  Maverick replied 11 months ago.

Because evidentiary issues such as these are decided DURING the trial, it is not possible to get a dismissal ahead of time on these grounds. But, what your lawyer may be able to do is to file a motion to exclude the evidence by alleging grounds that it is impossible for the prosecution to establish a chain of custody and thus the evidence should be excluded. If you win that motion, then the case will likely end or you will get a great plea bargain agreement. Also ask your lawyer to file a motion in liminie which is the next best thing to getting the evidence excluded.

Customer: replied 11 months ago.
I have a plea bargain on the table and I don't want to risk it if i have to go to trial and if the evidence can get dismissed beforehand, as that is the only evidence the DA has to against me, and I'm not even guilty at all due to a lot of other circumstances, the plea bargain in itself is going to ruin me anyway. But if I go to trial, and lose, I'm in even bigger trouble for something I'm not guilty of to begin with. I'm being cornered into a plea by both parties, my public defender and the DA, even though the plea is better, it still ruins my life, but I am not guilty. But risking a trial is far worse and then having the plea off the table by choose trial, is far worse. I am in a rock and a hard place. That is why I was hoping there was a way to try to get it suppressed at my next hearing where I have to make the choice to either plea or go to trial. Is there no way to do this at all?? If the kit isn't in play, the DA has no case at all. And based on the photographs of the kit and the regulations of how the kit is supposed to be sealed, and the photos of the chain of custody were not included in the box and photographed and there is no chain of custody or way to trace it because those are missing also and the tracking information is untraceable at this time, we have no idea what was done with it and where. But the biggest issues, as I've mentioned is the integrity seals were not on the tabs, they are clear over on the side of the box, leaving the tabs clearly exposed on the outer shipping box, gabs all around the box and a flap was sticking straight up. The tox lab did not indicate that it was received this way. And they did not follow the usps shipping guidelines as well and should not have even been allowed to be mailed. But is there no way to get it suppressed at my next hearing and get it possibly dropped on those grounds and therefore, the DA has no case to move forward at all???
Expert:  Maverick replied 11 months ago.

Did you want to do a phone call on this? The cost is $59.00? I will send you an offer to that effect. If you decide to accept it, please come back and type in your phone number here. Please know that all of Just Answer's disclaimers still apply.

Customer: replied 11 months ago.
I can't afford it and have no phone.
Expert:  Maverick replied 11 months ago.

I have given you an answer to your question. I am not sure what else you are looking for. Please state your follow-up question in a 1-2 line sentence and I will try my best to assist you further.

Customer: replied 11 months ago.
I guess I just don't know how to ask it. So there is no way to get a motion filed at my next hearing where I am expected to take a plea or state I want a trial to have it suppressed. If it can be suppressed at that time or before my hearing date, the DA has no case then and then I wouldn't have to take a plea or go to trial. That is the only evidence they have. I don't want to go to trial and lost my option of the plea I was offered and the judge may not exclude the evidence.
Expert:  Maverick replied 11 months ago.

Your lawyer needs to file a motion to exclude evidence and an associated motion to dismiss and set it for a hearing at the same time as the hearing for the plea and have the judge rule on that motion just before a hearing is had on the plea issue. If the judge excludes the evidence, then there is a good chance that the prosecutor will make a great plea bargain with you.

Alternatively, your lawyer can take the next step and ask for a dismissal at that time also.

Otherwise, your defense lawyer will need to go through the trial and make a motion for directed verdict at the end of the prosecution's case in chief and ask for a dismissal because it failed to prove its case since the evidence it needed was not presented at trial.

If the judge denies the motion to exclude, then you will need to decide whether to go to trial or accept a plea.