FORT LAUDERDALE (CBSMiami) – Drug toxicology tests taken by the former Broward Medical Examiner are now under fire and it may lead to new trials for defendants involved in DUI cases involved alleged drug use.
“This could be a very big deal,” said Broward’s Public Defender Howard Finkelstein. “It certainly seems to me that someone was not doing the job that was supposed to be done.”
Broward’s new Medical Examiner Craig Mallack discovered under the former ME, the office didn’t follow proper scientific procedures to validate thousands of drug toxicology tests prior to August 24, 2012.
Mallack told State Attorney Mike Satz on Tuesday that he immediately shut down his lab and referred new cases to an independent lab.
In a news release, the Medical Examiner’s Office said 3600 drug screen tests over the past 10 years may be impacted.
Mallack replaced former Medical Examiner Dr. Joshua Perper in April. Perper had been M.E. for 17 years. In August, Mallack discovered the possible problem during an operational review.
In a letter to Satz that Mallack showed to CBS4’s Peter D’Oench, he said, “There is no definitive evidence to suggest the actual results reported were inaccurate; however, the methods used to extract the information were not previously scientifically validated.”
That could have been a critical flaw in the testing.
Finkelstein told D’Oench, “We do know that the method in the way information was extracted from blood was not validated. If the results were not validated, it throws into question anyone convicted of DUI or DUI manslaughter or even murder cases. And it involves not only defendants but blood tests for those who have died as well.”
“What’s important is that if they did not validate the tests from the last 10 years, it’s realistic to think that as much as 30 years before that it was no valid either. It is very possible that no testing of bodily fluids in Broward County history was done properly.”
Satz has told his prosecutors to review pending prosecutions and will proceed on a case by case basis.
Mallack declined to give D’Oench on on-camera interview but he told him that a core sample from 50 recent drug cases has been sent to the University of Florida for testing. The results should be known within a week.
The Broward Association of Criminal Defense Lawyers President Kenneth Hassett said while the results might not be wrong, defendants might deserve a new trial. He said this is like opening up a huge Pandora’s Box, since the ME’s office uses the same protocol for testing victims.
The lack of certification could give attorneys a legal basis to question the drug test results.
The improper procedure was performed when testing for, among dozens of other drugs, cocaine, heroin, oxycodone, hydrocodone, marijuana, amphetamines, Valium, Xanax, sleeping pills and other over-the-counter medications that affect a user’s ability to drive. Not on the list; alcohol or PCP, commonly known as Angel Dust. Procedures to test for those substances were conducted properly, he said.
Hassett said criminal cases aren’t the only ones affected. Civil cases in which plaintiffs have sued for wrongful death or injury may also be called into question and it’s up to each attorney to decide whether to take action on their individual cases.
Hassett told D’Oench, “I think the Medical Examiner believes that over the past 10 years that these tests were not done correctly.”
“If I were your doctor and you came to me and told me you were concerned about a blood disorder that runs in your family and I sent your blood to the lab and I as your doctor said to you, well you tested positive for that blood disease but the method that was used to extract the information I have given you has not previously, scientifically been validated, would you start chemotherapy right after that based on your own doctor? Obviously not.”
D’Oench spoke to Perper by telephone. Perper told him, “I am retired and I do not want to get into this. I do not want to comment.”