AUGUSTA — A backlog in the testing lab at the Maine Center for Disease Control and Prevention is delaying the prosecution of some criminal cases for as long as six months.

The CDC’s Health and Environmental Testing Lab, a division of the Department of Health and Human Services, has a backlog of about 400 urine samples to be tested for drugs or alcohol. Much of the backlog can be attributed to staff vacancies, including one lab analyst position that was left open for more than two years under the administration of Gov. Paul LePage, a Maine CDC spokesman said.

The Maine State Police Crime Lab, which also processes evidence for criminal cases, has smaller backlogs, its director said.

The CDC has hired a new lab analyst, and the Legislature amended state law this year to improve the testing system, so the backlog is expected to be eliminated sometime in 2020.

In the meantime, however, prosecutors, defense attorneys and the Mainers they represent are facing delays in settling criminal cases where drug or alcohol use may be a critical factor in determining innocence or guilt.

The backlog was cited this month as the reason it took so long to charge the suspect in a vehicular manslaughter case. Cumberland County District Attorney Jonathan Sahrbeck told the Portland Press Herald/Maine Sunday Telegram that a six-month delay in bringing the case to the grand jury was caused by waiting for blood alcohol and urine test results.

The suspect in a June 7 fatal crash on I-295 in Falmouth, above, was indicted in December after a six-month delay in legal proceedings was caused by the wait for blood alcohol and urine test results. Photo courtesy Maine Department of Public Safety

Brannon McRae, 29, the suspect in a crash on Interstate 295 that killed Kathy Haycock, 26, of Brunswick and injured her brother Joshua Haycock, 37, was finally indicted in December by the Cumberland County grand jury on seven felony charges related to the June 7 crash.

“There has clearly been a resource issue,” said Androscoggin County District Attorney Andrew Robinson, who is also the president of the Maine Prosecutors Association.

Tina Nadeau, executive director of the Maine Association of Criminal Defense Attorneys, said the backlog in many cases has resulted in defendants being denied their constitutional right to a fair and speedy trial.

“The delay in getting testing done has caused significant problems for defendants – particularly defendants who are being held in jail on bail prior to trial,” Nadeau said. “The state’s inability to fully fund and staff its drug testing lab should not come at the expense of criminal defendants’ speedy trial rights.”

Tina Nadeau, executive director of the Maine Association of Criminal Defense Attorneys, says the urine-test backlog “has caused significant problems for defendants.” Ben McCanna/Staff Photographer

The CDC lab does blood alcohol testing and urine testing for drugs (and sometimes alcohol) and also tests to verify or identify suspected drugs confiscated by police. The bulk of its work is focused on toxicology and impaired driving, but it is the main lab for urine and blood testing.

There’s also the State Police Crime Lab, which handles DNA, fingerprints, firearms and fire debris analysis, including chemical testing.

Some evidence, including confiscated drugs after they have been identified, is handled by both labs.

Maine CDC spokesman Robert Long said the vacant position in the lab was filled in the summer.

“A technician hired in July has completed training and certification and has been doing casework for a little more than a month, which has started reducing the backlog,” Long said in an email. He said the lab typically receives 50 urine samples for testing each month.

In this year’s legislative session, lawmakers passed a measure to address the lab testing delays.

The amended law allows urine samples to be sent to outside labs certified by the Maine DHHS for testing. In addition, the law now allows police to collect blood rather than urine samples in certain situations, which will expedite results, as blood samples can be processed faster.

Long said the CDC lab will expedite testing at the request of prosecutors in the case of a high-level crime, such as murder or manslaughter.

Maine is not alone in its issues with backlogged crime-lab testing, which can also result in backlogged court cases and long waits in jail for defendants who may not be able to post bail while the justice system waits for evidence in their cases.

According to a 2017 report by Governing Magazine, some states, including Minnesota, are shifting to microcrystal drug testing, which allows urine samples to be processed more quickly. Use of that methodology in Minnesota allowed the state to rapidly reduce its backlog and move criminal cases more quickly to prosecution.

One of Minnesota’s most populated counties was able to reduce its backlog of drug cases from 700 to zero in a single year using the test, the magazine reported.

Long said Maine was not planning to switch its testing methodology at this time. “The backlog in urine tests was created by a staffing vacancy, not testing techniques, as appears to be the case in the states mentioned in the Governing report,” Long said.

Officials also say much of the drug-testing backlog is being driven by the nation’s ongoing opioid crisis.

Smaller backlogs at the State Police lab also appear to be related to the opioid crisis, that lab’s director, Lt. Scott Gosselin, said. The lab also does chemical tests in suspected cases of arson.

Gosselin said none of the crime lab’s backlogs are more than 30 days, with the largest being in the DNA section at about 200 cases. He said complicated cases, especially homicides, take time as evidence has to be processed carefully, often through multiple sections of the lab.

He said it is not unusual for it to take six months or more to fully process evidence from a serious case, such as a murder. Television crime shows help fuel the perception that lab work happens quickly, he said.

“This is the common misconception – this idea that testing or examinations can take only an hour,” Gosselin said. “This is painstakingly meticulous work, and the last thing we would want to do is rush any of our analysts.”

Gosselin said the crime lab prioritizes cases involving human victims like homicides and gross sexual assaults. The State Police lab has also recently hired a new technician in the firearms section who was in the process of becoming certified, Gosselin said.

Long, the CDC spokesman, said the CDC lab will expedite testing at the request of prosecutors in the case of a high-level crime, such as murder or manslaughter.

Sahrbeck did not respond to messages left with his office about whether he asked for expedited testing in the vehicular manslaughter case.

Androscoggin County District Attorney Andrew Robinson says requesting expedited drug testing for every case would be unreasonable and ineffective.    Steve Collins/Sun Journal

But Robinson, the Androscoggin County district attorney, said it would be unreasonable and ineffective if prosecutors always asked for expedited drug testing in every case, noting that wouldn’t allow for any actual prioritization.

“It is not ideal, but sometimes it is necessary given the constraints on resources, ” he said. “I think the limitation of resources is always a factor in the criminal justice system, but it can’t be that the state has to instantaneously produce results in every case. That’s an unreasonable standard.”

Defense attorneys have a different view on the matter. Some say prosecutors have used the lab delays as an excuse to leave their clients in limbo and sometimes in jail for unreasonably long periods.

“In my experience practicing criminal law in Maine, I’ve never seen the problem as bad as it is now,” said Jim Howaniec, a Lewiston defense attorney who has practiced law in Maine for 30 years. “There’s a real backlog in forensic testing, but a significant part of the problem is prosecutors are not prioritizing their cases and prioritizing requests for testing until the last minute.”

Nadeau, president of the defense attorneys association, said even with the promise that the backlogs will be eliminated in 2020, the state remains on shaky legal ground.

“The issue of delay caused by the state’s failures is ripe for litigation – as usual, the burden for the state’s underfunding is borne by criminal defendants,” Nadeau said.

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