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Defendant Contends Court Lacked Foundational Requirements for Admission of Evidence


In this case, defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192(4), Driving While Ability Impaired by Drugs as an Unclassified Misdemeanor.

A New York Family Lawyer said that in October 2005, a civilian witness called 911 from his mobile phone and reported that he observed another vehicle operating in an erratic manner on Wantagh Avenue, in Levittown, County of Nassau. He pulled the other vehicle over and waited for the Police to arrive. A Police officer, a Sergeant Shea of the Nassau County Police Department arrived at the scene shortly thereafter. He testified that he spoke with the civilian witness and the defendant and noticed that defendant appeared nervous and disheveled. He also testified that the defendant was unsteady on her feet and seemed impaired in some way. As a result of the defendant’s appearance, the Sgt. requested that the defendant submit to Standardized Field Sobriety Tests (S.F.S.T.). The Sgt. explained that S.F.S.T. are divided attention tests which are used nationwide by Police departments to determine if someone is intoxicated or impaired by drugs. After observing the defendant’s performance on the S.F.S.T., the Sgt. arrested the defendant for Driving While Intoxicated and brought her to the Central Testing Section of the Nassau County Police Department in Mineola for processing and testing.

A New York Child Custody Lawyer said the Sgt., upon arriving at Central Testing he requested that the defendant submit to a chemical test of her breath to determine the level of alcohol in her blood. The defendant consented to the breath test and the breath test was administered to the defendant. He requested that the defendant submit to a urine test to determine what, if any, drugs were in her blood. The defendant consented to the urine test. The defendant went into a bathroom with a female Police Officer and an empty urine container. When the defendant came out of the bathroom, the urine container was filled with a liquid. The Sgt. testified that he sealed the urine container with red evidence tape and affixed to it a label with the defendant’s name. The urine container was later brought by Sgt. Shea to the Police lab and locked in the Toxicology refrigerator.

A Brooklyn Family Lawyer said the Detective testified that he was assigned to the Scientific Investigations Bureau. In November 2005, he moved a urine container, which was sealed with evidence tape and labeled from the Toxicology refrigerator to the Toxicology freezer. Thereafter, he removed the urine container which was sealed with evidence tape, placed it in a box with eleven other urine samples, and mailed the box via Federal Express to the Laboratory in Pennsylvania for testing. During his direct testimony,

A Brooklyn Child Custody Lawyer said the People next called a Doctor, who testified that he is a Toxicologist. He testified about the normal procedures which N.M.S. follows regarding the receiving and testing of urine samples. On his review, he testified that he received a urine container labeled the name of the accused from the Police Department for the purpose of testing it for drugs. he was unable to specifically testify as to the condition of the evidence seal on the urine labeled container when it was received at laboratory.

The People’s failure to properly establish the foundational requirements for admission of the urine test results is fatal in the prosecution of a Driving While Impaired by Drugs case. Therefore, defendant’s motion for a Trial Order of Dismissal must be granted.

The People established a chain of custody with respect to the urine container from the point that Sgt. Shea received the urine container from the defendant until the point when the urine container was received at N.M.S. Testimony was elicited that the Sgt. received the urine container from the defendant, sealed it, labeled it, and put it into the Toxicology refrigerator. Next, Detective retrieved the urine container from the Toxicology refrigerator in the same exact physical condition that it was left in by Sgt. Detective then mailed the urine container to doctor testified that she received the urine container in the mail at laboratory in a sealed condition. She unsealed the urine container and removed a sample from the urine container using a pipette. The original urine container was then resealed and kept separate to be returned to the Nassau County Police Department. the urine container was identified, which she was shown in Court, as the same urine container which she received at N.M.S., opened, removed a liquid sample from and resealed. She identified it as being in the same exact sealed condition that it was in the last time she handled it. Hence, based on the testimonies, the chain of custody regarding the urine container was established and the urine container was admitted into evidence.

However, although the People established a chain of custody with respect to the original urine container, the People failed to establish any chain of custody regarding the sample that was removed from the urine container and allegedly tested. The fact that the People admitted into evidence the original urine container did not satisfy the chain of custody with respect to the test tube samples. Moreover, the People failed to call any witnesses to explain what happened with the test tube samples after they were placed into the N.M.S. refrigerator. No witness testified that the test tube samples were ever removed from the refrigerator. If they were removed, no witness testified when the test tube samples were removed, by whom, and in what condition. The admission of the People’s evidence at trial consisted of an untested urine container.

The People attempted to overcome the chain of custody insufficiencies and the failure to call the appropriate witnesses to properly introduce the alleged urine results, by offering into evidence the voluminous litigation package containing alleged urine test results. The People contend that chain of custody was established since the litigation package contained a one page written document which stated that “chain of custody was followed.” This Court finds that a piece of paper summarily stating that “chain of custody has been followed,” without more, is insufficient to establish same in a Court of Law where a defendant is being prosecuted for a criminal offense. Accordingly, this Court holds the People’s failure to establish the requisite chain of custody regarding the test tube samples, together with a complete failure to present any direct testimony regarding the tests allegedly performed, precludes the admission into evidence of the defendant’s alleged urine test results.

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