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Saturday, May 29, 2010

Ind. Courts - Even more on "Backlog of cases extends toxicology test results: Toxicology tests often take weeks, months to complete"

Updating these May 13 and May 14, 2010 ILB entry, the Indianapolis Star has another story today, this one headed "State's troubled toxicology legacy remains: Ex-director's decisions are still costing state money." Mark Alesia and Tim Evans are the reporters. Some quotes [emphases by ILB]:

In October, the director of the Indiana State Department of Toxicology spent $1.5 million of taxpayer money to purchase new breath alcohol testing equipment.

Eight months later, that director has resigned, and the equipment remains in storage. It is unclear when, or even if, it will ever be used.

Typically, before such purchases have been made in the past, the devices have been tested in the field by officers or at the law enforcement academy, said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Association.

But law enforcement was kept in the dark when Michael Wagner made the purchase, Johnson said. Wagner resigned as director of the toxicology department May 13 amid an investigation into complaints about his performance.

Not only was law enforcement not consulted, Johnson said, but Wagner also made little or no progress on the months-long process to implement the machines. That includes adopting new testing protocol into the administrative code and training officers.

"We're not even close to rolling out the new instruments," Johnson said. * * *

The machines, unlike roadside breath tests, are used in police facilities to take readings for evidence in court.

D. Craig Brater, dean of the Indiana University School of Medicine, which runs the state toxicology department, said the department will work with consultants to write the new administrative code. * * *

There also are questions on the bidding process and whether the machines were vetted properly.

Wagner purchased the equipment from St. Louis-based Intoximeters Inc. But a 28-year supplier to the state of alcohol breath testing machines -- including those currently in use -- said his company wasn't invited to bid. IU chose two companies that met certain specifications. * * *

"We were shut out without having a chance," said John Fusco, CEO of the company that makes the DataMaster device. "They basically told our sales rep, 'Too bad.' "

A spokeswoman for the IU Medical Center said the school's purchasing agent told her it was a "clean bidding process."

Then there is the issue of vetting. Assuming the machines eventually are put in the field, Johnson expects defense attorneys to challenge them from all angles.

"This is one of the reasons we wanted to find out more," he said. "What can we expect? I don't know what its track record is around the country." * * *

A committee chaired by a former judge, and with two state legislators as members, is expected to make recommendations June 11 about reforming the state toxicology department.

ILB Note: Yesterday's Court of Appeals decision in Francisco Javier Ramirez v. State of Indiana (ILB summary here, 2nd case) dealt in detail with, to quote from the concurring opinion, the admissibility of:
the State's Certificate of Inspection and Compliance of Breath Test Instruments (“Certificate”), which was used in this case to prove that the DataMaster was in compliance with the Department of Toxicology's accuracy requirements.

Posted by Marcia Oddi on May 29, 2010 09:55 AM
Posted to Indiana Courts