Noteworthy Spice Decision

     When Spice appeared as a street drug five or so years ago, state legislatures, including Utah’s, responded by listing the known kinds of Spice on their schedules of controlled substances, thus making those kinds of Spice illegal. Spice producers then changed the molecular structure of their products so they no longer matched the kinds on the schedules, thus their new products were not illegal. Thereafter, state legislatures added the new kinds of Spice to their schedules, and Spice producers responded as they did the first time. That cycle has continued for the last few years. At some point, state legislatures, including Utah’s, added a catch-all provision, the effect of which was to make illegal the listed kinds of Spice plus any unlisted “synthetic equivalent” of cannabis. Recently, the Iowa Court of Appeals upheld that language as providing sufficient notice to a defendant who argued his due process rights were violated on void-for-vagueness grounds in State v. Heinrichs, 845 N.W.2d 450 (Iowa Ct. App. 2013). Since we have identical catch-all language in Utah Code Ann. § 58-37-4.2, Heinrichs may be worth citing if you litigate this issue.

Spice and Bath Salts Testing Options

     The Utah Bureau of Forensic Services Laboratory (i.e., the State Crime Lab) can test for synthetic marijuana, i.e., Spice, and bath salts seized outside of the human body. So your officers can submit a seized baggie of Spice or bath salts and get a test result back for later use in a prosecution. However, the Tox Lab does not test for Spice and bath salts in human body fluids.  This is mainly a resource issue.  So if you have a DUI Spice or bath salts case for which you want a toxicology final report for a prosecution, the best option is for the arresting agency to submit the biological sample to NMS Labs in Pennsylvania. http://nmslabs.com  (last accessed Feb. 6, 2015) Spice tests cost between $62.00 to $530.00, depending on what the arresting and prosecuting agency want done. The test cost, plus the cost of flying the NMS Labs expert to Utah, and then paying them $250.00 an hour to testify, makes this option cost prohibitive for most DUI prosecutions. However, in DUIs where there is compelling reason to spend those amounts of money, NMS Labs appears to be the best option.

DUI Blood Draw and Urine Evidence Handling Training

     Currently there is an 18-23% rejection rate for biological samples submitted to the Utah Bureau of Forensic Toxicology (“Tox Lab”) for testing. The main reasons are incomplete labeling and improper packaging, though sometimes container breakage or leakage is the cause. While a law enforcement agency may re-submit a rejected sample, initial sample rejection obviously causes inefficiencies for the submitting law enforcement agency, the Tox Lab, and prosecutors who timely need the test result for their blood-draw or urine sample DUI prosecutions.

     To reduce the rejection rate, UPC teamed up with our partners at the Tox Lab, UHP, and Utah Highway Safety Office to create a training which will be taught to law enforcement at regional trainings throughout our state. The hour-long training consists of slides showing proper labeling and packaging, and examples of common mistakes. Also, we will show an eight-minute instructional video demonstrating correct labeling and packaging. Related case law will also be taught.

     Prosecutors will be informed when the training is scheduled to be taught to law enforcement agencies in their jurisdictions. If you would like to see the materials or if you have any questions or input, please send an email to eberkovich@utah.gov  These trainings will be funded by an NAPC/NHTSA Cooperative Mini-Grant that UPC applied for and received. The trainings will be taught by Gambrelli Layco, Tox Lab Director, Edward Berkovich, TSRP, and a law enforcement phlebotomist from the jurisdiction where the class is taught.