Legal Question in Criminal Law in North Carolina

Drug Analysis

The crime laboratory report of a substance found in my client's possession says "preliminaty analysis indicated the presence of cathinone and cathine which is characteristic of catha edulia. Note: confimatory analysis could not be performed in accordance with laboratory protocol." Can my client be convicted of possession of cathinone on the basis of this data and nothing more?

Asked on 10/09/99, 3:28 pm

1 Answer from Attorneys

Donald Gillespie Attorney at Law

Re: Drug Analysis

I don't even know whatthat substance

is or what schedule controlled substance it is.

If it is a scheduled C/S under NCGS 90 et. seq.

I would approach the case with inquiring why the initial stop and search, then what teh LEO

though the stuff was. If it is off-white powdery substance or rock

they prob though it was cocaine.

I'm guessing your lab analysis did not come from Raleigh but from a

private lab. But your question then comes in- if they didn't test it

can they prove it. I think the answer is that

the client cannot be convicted, but the case must be

won by not having it go to the jury. The DA should

kick the case entirely or take a plea to misd

paraphernalia possession if your client wants to

plead to anything. If that fails set it for trial

and voir dire the witness or whoever is going to introduce the

analysis. The raw lab report should not be admitted without support

by an expert. Do not allow the lab worker to be qualified as an expert

without voir dire. Have the lab worker state over and over until teh judge sustains DA objection

to repetitive that they didn't test the stuff.

The judge should not send the question to the jury.

Make sure you preserve your objections "for the record" so the judge knows you are going to take

the case up on him if you lose. I'm at home now or I would cite scripture in NCGS as to

why the stuff cannot be found to be C/S beyong a reasonable doubt without analysis.

I'd bet your LEO did not know what it was- did he smell

something or taste something? Voir dire him to find

what training he had to identify that substance. How does that substance

compare with cocaine or heroin? How was it packaged?

If he didn't know what it was or was mistaken and the lab didn't test it

it should not pass the reas doubt threshold. Good luck.

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Answered on 10/13/99, 6:02 am

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