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The case was adjourned …cont

Finally, the parties entered into a stipulation that when the defendant tested positive for cocaine, a member of the MTC staff split the test cup. The second test cup also indicated that the defendant’s urine was positive for cocaine.

In view of the fact that the test cup was split, the defendant withdrew his argument based upon the failure to split the test cup. Instead, the defendant argued that due to the multiple medications he is taking, the test cup’s positive result should have been confirmed by a GC/MS test and that since the positive result was not confirmed by a GC/MS test, it cannot be determined that the defendant was in fact positive for cocaine on February 18, 2004.
In oral argument after the hearing, the defendant acknowledging the fact that the test cup was split has conceded the reliability of the Roche Varian TesTcup Five test in most situations. However, in view of the defendant’s use of a multiple of legally prescribed drugs, the defendant does challenge the validity of the test in this case. The defendant argues that the variety of drugs taken by him could have resulted in false positive result. The criminal defendant asserts that due to the possibility of a false positive, the Roche Varian TesTcup Five test should have been confirmed by a GC/MS test. The defendant contends that since the Roche Varian TesTcup Five test result was not confirmed by a GC/MS test, there is no proof that he was actually positive for cocaine on February 18, 2004. Thus, the defendant argues that his decision to be sentenced was based upon evidence that might have been false.

The defendant’s argument fails due to his inability to prove, by a preponderance of the evidence, with any degree of medical certainty, that the medications taken by the defendant could cause a false positive. Based upon the facts in this case, it is fair to say that the combination of the medications did not cause a false positive result.

From the inception of the defendant’s case, up to and including February 18, 2004, the defendant’s urine was tested 21 times, for the purpose of determining whether the defendant was using any illicit drugs. While the defendant was apparently taking the multiple medications continually from the time of his arrest, defendant tested negative for cocaine 18 times and positive for cocaine 3 times during this period. The fact that the defendant tested negative in 86 % of the tests during the period that he was taking the multiple medications, indicates that the medications taken together did not contribute to the positive toxicological results.

Obviously, some substance, other than the medications taken by the defendant, must have caused a positive result. There is no reason to believe that the substance was anything other than cocaine or marijuana.

Based upon the fact that the court finds that the results of test provided an accurate determination that the defendant was positive for cocaine and that when offered residential treatment, the defendant chose to be sentenced; the court finds that the defendant was not denied due process.

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