Thank you for taking the time to read this. I recently learned about a bill that is trying to be passed that could threaten a persons ability of getting a fair trial in a possession charge.
House Bill 756
"Spectral Fluorescence Signature Drug Analysis"
The Bill being proposed is wanting the Nartest NTX2000 Drug Analyzer to become the standard for drug testing in North Carolina.
The problem with this particular device is the validity of it's testing procedures. In the North Carolina Bill, there is a certain protocol established within it's wording that takes away the defendants ability to question the validity of the test.
Drug-testing kit is source of appeals:
Ill show you: This is taken from the Bill:
Criteria for Admissibility. – The results of a Spectral Fluorescence Signature Analysis are admissible as evidence in court under this Article only if the analysis meets both of the following requirements:
(1) It is performed in accordance with the rules of the Department of Health and Human Services.
(2) The person performing the analysis had, at the time of the analysis, a current 29 permit issued by the Department of Health and Human Services authorizing the person to perform a Spectral Fluorescence Signature Analysis using the 31 type of instrument employed.
(c) Inadmissibility of Analysis Results.
The results of a Spectral Fluorescence Signature Analysis of a disputed substance alleged to be a controlled substance performed in accordance with this section are not admissible as evidence if:
(1) The defendant objects to the introduction into evidence of the results of the Spectral Fluorescence Signature Analysis of a disputed substance chemical analysis of the alleged controlled substance; and
(2) The defendant demonstrates that, with respect to the instrument used to analyze the alleged controlled substance, preventive maintenance procedures required by the regulations of the Department of Health and Human Services had not been performed within the time limits prescribed by those regulations.
Now there is nothing there to question the admissibility to invalidate this particular drug test. You have to take it from the "Companies Word" the people that make the equipment that it is 100 percent accurate.
In the case of Wooten v North Carolina, a lawyer questioned the integrity of this particular testing procedure, Originally Mr.Wooten was convicted of possessing cocaine, he appealed it saying his attorney should have questioned this new technique, but didn't. I am not sure if he won his appeal for a new trial based on this at this time.
The point is, though Wooten or anyone has the right to question the validity now, if this Bill passes, your right to question it will be taken away. All you can ask is if the person testing the substance is qualified to operate it, that maintenance has been performed on the machine, and that the tester has a permit to test. other than that, you have to take the word from the company that sells this machine that it is 100% valid.
Here is a link to Wooten v North Carolina. It is on the bottom of the downloads section.
Here is a statement from the defense attorney in Mr. Wootens appeal:
The State’s evidence does not even describe the method of analysis the NarTest machine uses or how it works; the evidence is simply that you put the substance to be analyzed into the machine and the machine uses ‘florescence’ to determine what the substance is and prints out a result. The State did not present any evidence independent of information for the Nartest’s manufacturer which would establish its reliability; although such evidence might exist, it is not in the record before us. We cannot find that the NarTest machine is sufficiently reliable based upon the evidence presented.
b. The error in admitting Investigator Cahoon’s opinion testimony and report that the substance was cocaine rose to the level of plain error. Because trial counsel did not object to the introduction of Cahoon’s opinion
based on the NarTest machine, this Court must perform a plain error analysis. The identity of a controlled substance allegedly possessed is an essential element of the charge of possession of a controlled substance. State v. Ledwell, 171 N.C. App. 328, 331, 614 S.E.2d 412, 414, disc. rev. denied, 360 N.C. 73, 622 S.E.2d 624 (1995). The State carried the burden of proving that Mr. Wooten possessed cocaine. Expert testimony is required to prove that the evidence is in fact a controlled substance. State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2008) (rev’d per curiam, 189 N.C. App. 640, 659 S.E.2d 79 (2009) for the reasons set forth in J. Steelman’s dissent) (“Crack cocaine has a distinctive color, texture, and appearance. While it might be permissible, based upon these characteristics, for an officer to render a lay opinion as to crack cocaine, it cannot be permissible to render such an opinion as to a non-descript white powder.”) The jury could not have found that Mr. Wooten possessed cocaine if the trial court had properly
excluded Cahoon’s opinion testimony and report.
II. MR. WOOTEN’S TRIAL COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO OBJECT TO INVESTIGATOR CAHOON’S TESTIMONY AND REPORT, BASED ON AN ANALYSIS USING THE NARTEST MACHINE, THAT THE SUBSTANCE IN QUESTION WAS COCAINE.
Standard of Review
“To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel’s performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674, 693 (1984)), cert. denied, 549 U.S. 867, 127 S. Ct. 164, 166 L. Ed. 2d 116 (2006). In order to establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698.
In the event that this Court finds that the trial court’s admission of Investigator Cahoon’s opinion and report that the substance was cocaine did not amount to plain error, Mr. Wooten asserts that he received ineffective assistance of counsel because his trial attorney did not object to the admission of the opinion and report. It is unreasonable and deficient for an attorney to fail to object to the admission of an opinion which is based on a machine which has never been accepted by a court and where no foundation was laid as to its reliability.
For the reasons set forth above, the defendant, Latrell Wooten, respectfully asks this Court to order a new trial. Respectfully submitted this, the 20th day of January, 2010.
The company that makes the Nartest NTX2000 Drug Analyzer, NarTest, has offices in Tallinn, Estonia and in Raleigh, North Carolina (US). They gave 15 Nartest NTX2000 Drug Analyzers to various police departments around the state to field test their product.
I am sure they got quite a conviction count for it and swear by its ability in the field, and how it saves the government money in lab costs. According to Nartest's website, "Costs 10 times less than drug testing in lab" (Unless challenged) Make sure to tell your lawyer to challenge it.
Now the bill says that other testing procedures can be utilized such as the Duquenois-Levine Test. The thing is, then they are back to square one and have to pay the labs on top of using the Nartest product which means more money spent. Either that, or the defendant will have to pay for independent testing...
Prosecutors are becoming aware that Duquenois-Levine Test can be invalidated with a court certified drug test expert. The problem is most defense lawyers are not aware that they can question the validity of these drug tests, and have evidence dismissed in a court of law.
Bottom Line is: You Do Not Have To Take The Deal!
An evidential hearing can have marijuana cases dismissed. You just need a court certified drug test expert. They can provide everything an attorney could need to assist them in having marijuana thrown out.
If you want to learn more about the science in drug testing and how to defeat a marijuana charge, visit my other website.
I am working with several experts and lawyers putting out valuable information using scientific techniques that can invalidate a drug test. We even have acquittals to back us up, and referrals from attorneys who say that they used the information on Marijuana Manifest, and had evidence from cases dismissed.
One of my associates is ex FBI Agent Dr.Fred Whitehurst who was a whistle blower against the FBI forensic labs for putting someone away for 10 years due to faulty lab work, as well as exposing major inadequacies at the North Carolina State Bureau of Investigation's (NCSBI) forensic labs.
I am also working with Pulitzer Nominated Author John Kelly, who wrote a book partially funded by the Marijuana Policy Project called "False Positives Equals False Justice" John Kelly, was trained by Fred Whitehurst to help attorneys get marijuana possession charges dismissed due to invalidated testing procedures.
The money spent on this Bill will be wasted, and a lot of people can wrongfully go to jail if the Nartest NTX2000 Drug Analyzer should make a mistake.Tax Money will be wasted if the results are constantly being challenged and further testing is required.
To make a point, if you are facing a marijuana charge, challenge the evidence whenever a Nartest NTX2000 Drug Analyzer is used, and make sure the state pays for it. The best part is, even if they did other testing procedures, they can be invalidated.
This is just another really good example of how millions of dollars will be wasted on marijuana prohibition.
There is a finite number of cross comparisons in its database, the potential for false positives is possible due to that fact that they haven't tested this device enough on a multitude of substances out there that could flag false positive.
It says it can detect if a substance is marijuana, did they field test it with every single plant out there to be sure no other plant but marijuana will be detected positively? I doubt it. Yet we are supposed to put our citizens freedom at stake at the word of a company, then have Congress write and pass a Bill in which we cannot question their testing procedures?
Please do not let them pass this bill. Spread the word, and tell Congress of North Carolina to spend that money on something to help the state, not imprison them.