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On Why Urine Testing Methods Used in Washington, DC DUI Cases Are Unconstitutional (Part Two)

by | Dec 21, 2011

In the first part of this series I discussed the fact that the urinalysis done in Washington, DC DUI cases does not lead to accurate results.   There are many reasons for this. One is that there is no constant volume of urine in the human body.  Another is that you can drink alcohol, not urinate, go to sleep, wake up, and be tested the next morning and have a lot of alcohol in your blood. The reason for this is that alcohol stays in your bladder until you get rid of it even if it has long left your bloodstream and your true BAC is 0.00.  While most DC DUI attorneys who have received training in urinalysis believe urinalysis to be entirely junk science, there is a slightly more accurate way to test urine in DUI cases.  The police could, as research suggests, let the suspect urinate (void) without collecting the sample, and then taking a sample for the second time the suspect voids.  This “second void” method is considered more accurate.  The MPD does not do this.

Now that we have talked about the so-called science behind urine testing in DC DUI cases, let’s look at what happens during trial.  In order to get a urine sample admitted in court during a DUI trial, the Office of the Attorney General must call the Chief Toxicologist for the District of Columbia.  Presently the acting chief is Lucas Zarwell.  He will testify that the urine has been collected by the MPD, delivered to the OCME lab, tested by one of the technicians he supervises, and then a “litigation packet” containing the results is prepared for the prosecutor.  During the trial, he will attempt to read from this packet.  Please note that Mr. Zarwell does not personally do any of the testing himself.  The government does not bring the actual technician into court because it would cost more money.  This is considered by many to be a violation of the Sixth Amendment to the United States Constitution.

The Sixth Amendment gives a defendant the right to confront their accusers.  In a DC DUI case involving a urine sample, the technician who tested the sample is basically accusing the driver of being intoxicated.  The problem is that without the actual lab tech present in court, how do we know that the machine was working, properly calibrated, and the test was done correctly.  The answer is that we don’t.  There are a variety of things that can go wrong during the testing.  If the tech did not properly clean the injectors, allow the machine to warm up fully, check that the flame ionization device was functioning with in normal parameters, check that the sample columns were clean and clipped as required, and so on.    If this were a drug case, the government would be required to have a chemist from the crime lab come into court to prove that that drugs were really drugs and that they were weighed and tested correctly.  Should this be any different in a drunken driving case?

In the next part of this series, I will discuss additional issues that arise when fighting a DC DUI charge that involved urine testing.