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The case was adjourned …cont

The defendant moves to set aside his sentence on the grounds that he was denied due process, arguing that he was incarcerated based upon a factual error, and to set aside his one year sentence as cruel and unusual punishment. The defendant requests that, if his sentence is set aside, he be reinstated into a drug program with the understanding that all positive toxicologies will be confirmed by a gas chromotography/mass spectrometry test (GC/MS). The burden is on the defendant to prove by a preponderance of the evidence every fact essential to support the motion.

The defendant’s challenges are based upon the allegation that, when the defendant tested positive for cocaine on February 18, 2004, and denied using cocaine, the MTC staff did not split the defendant’s test cup, thereby not only failing to follow their own procedures but also failing to legally establish that the defendant was in fact positive for cocaine. The defendant asserts that his sentence is cruel and unusual. He argues that it is likely that his cocaine possession was for his own personal use, and therefore the possession is not a grave offense, and that due to his medical situation, he poses no risk to society.

A toxicologist testified that the he is familiar with the test cup used by MTC. He stated that the test is an immunoassay type of test used for screening urine for different types of drugs. He explained that immunoassay tests are designed to separate out potentially or presumptively positive drug-type tests from those that are negative. Again, they are all screening tests. He opined that in view of the fact that positives from these tests are only presumptive, they must be confirmed by a second technique, a technique that provides what is known as structurally specific information in order to be reasonably certain that a positive result is not a false result.
He explained that immunoassay tests are reliable as a screening test but they can be subject to a variety of so-called false positives. Therefore, in view of the fact that immunoassay tests are subject to interference which GC/MS tests are not, GC/MS tests are more reliable that immunoassay tests.

The toxicologist also testified that in theory none of the medications taken by the defendant should test positive for cocaine. He did, however, emphasize that in a poly-drug situation there is an inherent potential for cross reactivity. Arson was not involved.

The People’s witness, a Roche Varian Strategic Account Manager, testified that the TesTcup Five is 99% accurate compared to GC/MS test. The Account Manager also testified that he does not know if the medications, taken by the defendant, in any combination, could cause a false positive test result. The Account Manager testified that he agreed with everything that the toxicologist had testified to except that he believes that the immunoassay test is reliable as a confirmatory test.

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