SBI lab could be headed for WNC

By DeeAnna Haney | Dec 17, 2012
Photo by: DeeAnna Haney SBI Director Gregory McLeod discusses the funding needs for a crime lab in western counties. Also pictured are crime lab director Joseph R. John, District Attorney Mike Bonfoey and Assistant District Attorney Jim Moore.

The high number of driving while impaired cases being dismissed in court has highlighted the need for a local blood alcohol testing facility and more funding at the state lab.

Understaffing and a severe backlog of submissions awaiting testing in Raleigh keeps prosecutors from being able to settle DWI court cases in a timely manner, or even at all.

But new legislation could be on the way to fund expansion for an SBI crime lab in Western North Carolina after Sen. Tom Apodaca and Rep.-elect Michele Presnell promised to make the issue a top priority last week.

Legislators, law enforcement, district attorneys and local government leaders filled the conference room at the Waynesville Police Department Wednesday to meet with leaders of the state crime lab and discuss solutions to the problem. Attorney General Roy Cooper joined the meeting via telephone conference.

The perfect storm

Ellen Pitt, MADD representative for Western North Carolina, routinely follows DWI cases in the region and is constantly frustrated with the number of those dismissed because of the lack of test results.

She estimates that between 35 and 48 percent of the cases in Waynesville and Asheville are dismissed after judges refuse to grant motions for the prosecutor to continue the case while awaiting test results.

That’s because DWI offenders who refuse to submit to a breathalyzer must have their blood drawn and sent to Raleigh. But the results from testing can sometimes take up to a year to come back.

Gregory McLeod, director of the State Bureau of Investigation, and Joseph R. John, director of the state crime lab, said an increase in toxicology submissions, lack of funding and a federal court case ruling created the "perfect storm" for the growing problem.

From 2009 to 2011, the lab saw a 19 percent increase in toxicology submissions and another 15 percent increase this year, with 38 percent of all submissions in the state coming from western counties.

Despite requests to fund more positions to keep up with the caseload, the number of lab analysts has remained at 12.

The issue of dramatically increased caseloads was compounded as a result of the Melendez-Diaz vs. Massachusetts 2009 federal court case ruling that forensic scientists must appear live in court, as opposed to electronically, to testify in blood test cases.

In turn, the time scientists were required to travel and be in courtrooms across the state increased by a whopping 600 percent.

“When they’re in court or on the road going to court, they can’t be in the lab doing their work, so we are seeing slower turn-around times,” Cooper said.

Some prosecutors and law enforcement consider that an understatement. Sometimes it takes eight months to a year for test results to return, and in the meantime, offenders could be out on the road posing the risk of repeating the crime, said District Attorney Mike Bonfoey.

And with a need for analysts to appear in courtrooms across the state, sometimes western counties get the shorter end of the deal.

"When they have to testify in my district, it’s a minimum five-hour drive just to get to Waynesville. That causes a great deal of logistical problems for my office and my prosecutors," Bonfoey said.

The problem is no different in Asheville, where District Attorney Ron Moore has been pushing for SBI lab expansion for years.

He believes simply having a lab nearby would deter defense attorneys from requesting the lab analyst’s presence in the courtroom.

Having an analyst appear by video conference is not an option at this point, John said.

Prosecutors can sometimes try cases without blood test results if the arresting officer can testify, but it can be “tricky,” to prove the officer had probable cause, Moore said.

They can also request a rush on urgent tests for serious cases, but that, in turn, puts other tests on the back burner.

“The SBI is good about trying to help us expedite a case, but if they pull ours out of the pile, then somebody else’s is falling further behind,” said Moore.

Finding solutions

For the problem in western counties to be solved, two things must happen, McLeod told legislators. The state must provide funding to pay analysts more and hire more workers and to fund a toxicology lab in Western North Carolina.

Analysts and scientists must be dually accredited to work for the lab, which is a high standard compared to other state labs, Cooper said. But the pay for those jobs is low in comparison to the average salary of state troopers.

“We are losing agents and scientists like crazy. Over the last two years the losses of those scientists and SBI agents has tripled and in the exit interviews, unfailingly, the pay is the problem,” Cooper said.

And their credentials make them an attractive target to competitive crime labs, federal and local.

“The state can’t even compete with local government for salaries, which certainly is a challenge. We’ve lost 38 forensic scientists within the last two years due to higher paying jobs,” McLeod said.

Expanding the current lab in western counties to include toxicology is another priority.

SBI estimates the project will require an extra $1.96 million in funding next year and an extra $1.83 million the following fiscal year.

Where the building site will be and whether it will be leased or built from scratch remains to be seen, John said. The first obstacle will be acquiring the money.

The meeting ended on an optimistic note, with legislators vowing to be aggressive about fixing the problem.

Presnell said she wants to remind the legislature than Western counties should not be placed on the backburner.

"They need to know we have needs in Western North Carolina," she said.

Apodaca said he would see to it that a bill is drafted immediately.

“I will make this my No. 1 priority,” Apodaca said. “I promise you, we’ll do something and ultimately get this problem taken care of.”