SUPERIOR COURT DIVISION

COUNTY OF ____________                            FILE NO.



                        V.                                          MOTION TO STRIKE EVIDENCE

                                                                     OF DRUG ANALYSIS PERFORMED BY

            ______________,                           CHARLOTTE MECKLENBURG POLICE       

                        Defendant.                          DEPARTMENT CRIME LABORATORY

            NOW COMES the defendant, __________, through his attorneys, ____________ and ________, and moves this Court to suppress the results of the drug analysis performed by the Charlotte Mecklenburg Police Department Crime Laboratory in the above captioned based on the fact that the only accreditation of this laboratory is by the now discredited American Society of Criminal Laboratory Directors/ Laboratory Accreditation Board (hereinafter ASCLD/LAB), and that pursuant to N.C. Gen. Stat. § 8C-1, Rule  701 et. seq., no legitimate expert in the field of forensic drug analysis would rely upon the results of a forensic drug testing facility that was not properly certified to conclude that an evidentiary sample contained a controlled substance.  In support of the motion the defendant shows the following:

1.      On August 19, 2008 Charlotte-Mecklenburg Police Officers ___________ and __________ served an outstanding order for arrest for a probation violation on Defendant.

2.      Officer __________ conducted a search of the vehicle incident to arrest and located a clear plastic bag with what appeared to be 4 large rocks of crack cocaine in the center console of the vehicle.

3.      Defendant was subsequently charged with felony possession of cocaine.

4.      Defendant entered a plea of not guilty in Superior Court on June 16, 2010.

5.      This case was scheduled for trial on June 16, 2010 for September 7, 2010.

6.      Pursuant to statutory discovery requirements, Defendant was provided with a copy of the Charlotte Mecklenburg Police Crime Laboratory (hereafter CMPD lab) drug analysis in this case, indicating that the evidentiary sample contained cocaine.  Defendant's Exhibit 1.

7.      The website Pages/Home.aspx(8/26/10) indicates the CMPD lab is accredited by ASCLD/LAB.  No other accreditation is listed.  Defendant's Exhibit 2.

8.      ASCLD/LAB is the same accrediting body that accredited the North Carolina State Bureau of Investigation Crime Laboratory (hereafter SBI laboratory)., pg. 9 (8/26/10).  Defendant's Exhibit 3.

9.      The CMPD crime lab is a legacy laboratory (Exhibit 3) that was originally accredited  on June 27, 2007, and is not scheduled for reaccreditation until  June 20, 2012.  Link on legacy link from Defendant's Exhibit 3.  Defendant's Exhibit 4.

10.  The SBI lab is also a ASCLD/LAB accredited legacy laboratory.  Defendant's Exhibit 3.

11.  ASCLD/LAB accreditation process has been shown to be fatally flawed.  See (8/26/10).  Defendant's Exhibit 5.

12.  The Charlotte Observer report indicates that ASCLD/LAB failed to identify deficiencies in numerous laboratories, including the SBI lab.  This accrediting body failed to find any problems in the SBI laboratory over a twenty year period where an independent external audit that is still ongoing identified 230 questionable findings from the SBI lab in a single section of the laboratory.  Defendant's Exhibit 5.

13.  ASCLD/LAB accreditation involves the review of only five cases for each analyst picked by the SBI laboratory supervisor, instead of review of randomly selected cases.  Further the SBI can "sanitize" the file by removing material from it prior to review by the accrediting body.  Defendant's Exhibit 5.

14.  The ASCLD/LAB has questionable relationship with the SBI, being founded by former SBI agents and employing at least two other former SBI agents in key positions.  Defendant's Exhibit 5.

15.  The training of SBI agents has been criticized as being minimal.  The laboratory has vetted as experts in forensic disciplines individuals whose degrees were in ballet and economics, and whose forensics training consisted of self-paced study over a period of two years and visiting a gun manufacturer. /2010/08/141621866/sbi-bullet-analysis-shaky.html (8/26/10).  These analysts were accredited by ASCLD/LAB.  This raises questions not only about the accreditation requirements of ASCLD/LAB, but also the qualifications of the key officers of ASCLD/LAB, who are former SBI agents and therefore may have had the same minimal training as current SBI analysts.  These include current ASCLD/LAB executive Director Ralph Keaton, Quality Manager Michael Creasy, and International Manager John Neuner.  Defendant's Exhibit 5, ASCLD/LAB Website to link names of former SBI agents to current ASCLD/LAB positions.

16.  The initial ASCLD/LAB for a laboratory uses a self evaluation of the laboratory and documents of the laboratory director's choice as part of the application process. Appendix I listed in http://www.asdld0lab./programs/legacy_overview.html (8/26/10).  Defendant's Exhibits 6 and 7.

17.  The ASCLD/LAB Legacy Program Overview, listed as the related document link in Exhibit 6, indicates on page 11 that annual accreditation of a legacy laboratory only requires a self evaluation, and are not required to meet any revised standards once the laboratory is accredited.  Defendant's Exhibit 8.

18.  In light of the recent audit of the SBI laboratory finding severe deficiencies in the SBI laboratory, as well as reports of similar deficiencies in Albany New York, San Francisco, California, and Baltimore Maryland (Defendant's Exhibit 5), the validity of a laboratory's results based upon ASCLD/LAB accreditation can no longer be accepted as a matter of law.

19.  In light of the utter failure of the ASCLD/LAB accreditation process, no reasonable forensic expert would rely upon result of a laboratory whose only qualification is ASCLD/LAB accreditation.

20.  In light of the severely flawed method of evaluating legacy laboratories based upon review of files selected by the legacy laboratory supervisor and self-evaluation, no reasonable expert would find that, even if a laboratory originally met proper ASCLD/LAB standards, there is any reason to conclude that the laboratory continues to meet such standards based upon the flawed annual review process.

21.  The only listed qualification for the Mecklenburg Police Crime Laboratory Accreditation is the legacy ASCLD/LAB accreditation issued in 1997.  Defendant's Exhibits 2, 3 and 4.

22.  Based upon the information provided to statutory discovery, the only evidence the State has that Defendant possessed a controlled substance is a laboratory analysis performed in the ASCLD/LAB Mecklenburg Police Crime Lab.  Defendant's Exhibit 1.

23.  Based upon Defendant's accompanying Motion, the State, either intentionally or negligently, has destroyed the only evidentiary samples in this case, making further testing by a properly accredited laboratory impossible.

WHEREFORE, counsel for Defendant respectfully requests the Court to:

1.         Deem this motion timely made.

2.         Find that the ASCLD/LAB accreditation process has so many deficiencies so as to be invalid as a matter of law.

3.         Prohibit the State from introducing into evidence any laboratory report prepared by any crime laboratory that is certified only by ASCLD/LAB, or any testimony based upon testing in any laboratory where the only accreditation of that laboratory was by ASCLD/LAB on the grounds that as a matter of law no reasonable expert would rely upon the results of an unaccredited laboratory,

4.         In the alternative, conduct an evidentiary hearing to determine whether the ASCLD/LAB certification is scientifically valid as a matter of law.

5.         For such other and further relief as the Court deems necessary and appropriate.

Respectfully submitted, this the _______ day of ____________________, 20______.


                                    Attorney for Defendant