The above is Part Four from a lecture given by Attorney Justin J. McShane before the North Carolina Advocates for Justice “Advanced DWI Seminar”. This seminar happened on February 26, 2010. It was organized and hosted by John K. Fanney, Esquire of Fanney & Jackson, P.C. The following is a transcript of this video:

Now, this is a microscope.  In fact it’s called a stereomicroscope. Believe it or not in most states it is how they come to this conclusion. That the green leafy substance is in fact marijuana.

Let’s think about that for a minute. How many people here have ever defended a marijuana case?  I imagine most people, right? You get back the lab report that says one sentence, “Hey, it’s marijuana – your guy’s done.” Does anyone have the SOP (Standard Operating Procedure) to figure out what sort of analytical testing they are doing in order to determine that it is in fact marijuana to the exclusion of all other green leafy substances? Anyone?

Think about this – more than likely what they are doing in your state, even in the state lab, I don’t know if you have local labs around here, what they are doing is stereomicroscopy.  What stereomicroscopy is, is basically they are taking a look under the microscope at a relatively low power, usually about 20x or 25x, and they are looking for characteristics that they believe to be consistent with marijuana and nothing else.  And so the bottom line of it is, if you think about it is “I have trained eye balls, my eye balls are better than yours.  And because I take a look at this green leafy substance and specifically when we zoom in and we take a look at it…”  What they are specifically looking for is called cystolithic hairs that react to duquenoid or acid and they create bubbling.

That is totally subjective.  There is a paucity of studies out there if there are any at all that would be able to determine whether or not to the exclusion of all other types of plants on the planet Earth that only marijuana, and only marijuana has cystolithic hairs that reacts to chemical process by bubbling. There is no study out there.  So if your state is doing botanical-based, that’s what it’s called – botanical-based stereomicroscopy – that’s a very big problem because it’s subjective, it’s not empirical and so you have to be aware of that.

What’s worse is even in my state, Pennsylvania, they do what is called polarized light microscopy. This one is even funnier, and it’s for cocaine. They fluoresce it under the microscope and if they see twinkling in this type of fashion under that microscope it’s got to be cocaine. That’s the business that is going on out there. We don’t know about it because we’re not exposed to it. You need to expose it in front of a jury and show what it is, it is not science, it is not forensic in nature but it is subjective in nature.

There is better testing out there such as GCMS (Gas Chromatography Mass Spectrometry) that will scientifically get rid of this “I have a great set of eye balls” type of business that goes on in state labs. So you have to be aware of those issues and types of things that are out there because if you rely upon “my trained set of eye balls, my high-grade, trained set of eye balls,” can anyone tell me just by looking, not from your own personal experience; just by looking and what you have seen on the internet or something like that, which one is marijuana, which one is not marijuana?  Or trick question – is there marijuana up there?

The reason why you can’t do this whole hocus pocus of “I can tell by looking at it” type of thing is because you can have a lot of innocent things that look analogous to it.  And these are nice examples because you get the whole leaf, most of the time, if you ever look at the evidence it’s not these nice pretty leafs.  It’s usually the bud materials and things like that, it’s ground up and everything like that, you don’t get the whole leafs.  But the bottom line is on the left is the Japanese maple leaf, and on the right is our pot leaf.  So you have to not accept when they come in with these botanical based conclusion, especially when it comes to seeds because of course, at least in my state – I did not do the research in your state – it’s the THC is what makes it illegal as opposed to hemp or deactivated. How you can tell a seed is going to germinate in order to produce THC by looking at a seed is about the most ridiculous thing in the world. That is the most ridiculous thing in the world.  So you have to be exposed and you have to know these things in order to be on the lookout for them, and its pattern recognition which is just generally junk.

We’re talking about forensic versus non-forensic testing and the big distinction there and why is it important. Non-forensic testing is stuff that doesn’t belong in a courtroom. Forensic testing belongs in a courtroom only if done properly – pretty big distinction. Non-orensic testing is like this type of stuff that we had up here, the colorimetric related tests that have false positives. That does not belong in a courtroom.

I want to talk to you about one that’s near and dear to my heart and now we’re going to start talking about blood testing.  It’s hospital blood testing. I’m on a crusade to end enzymatic assay, or what is called hospital blood testing in the United States.  For determination of a Blood Alcohol Content.  And I am going to show you why it is so particularly dangerous in terms of false positive rates, its non-selectivity and problems that exist with it.

By way of analogy, there are two ways… I have a daughter. She’s sixteen months old.  She’s gorgeous.  She’s the light of my life, I just absolutely love her.  She runs around, toddles around and does all fun things that a sixteen month old does. There are two ways to weigh my daughter.  The first way is I take my daughter, get out the scale, and I put her on the scale and I see what the scale says. That’s called a direct measure. The other way to do it is I weigh 203 lbs; my daughter, because I did the direct measurement of the scale, is 23 lbs. The second way of doing it is I get on the scale with her on it after I know that I am 203 lbs.

Let me restate that a little bit easier. The first way you can do it is you put out the scale and you put her on it, and it says 23 lbs – direct measurement, nothing interferes.  It’s a direct mass measure that’s there.  You take her off. The second way of doing it is if I hop on the scale first, I see that I am 203 lbs.  I step off the scale.  I go grab the toddler and she’s wiggling and everything like that, then I go step on the scale again and it says 226 lbs. Then what I do is I take the 226 of the both of us, subtract the 203 of the known – that is me.  That comes up with 23 lbs.

What ends up happening that second way, if I do it that second way, the indirect measure way what ends up happening is my wife looks at me like I’m stupid and says “Why on Earth did you weigh our daughter that way?  Why didn’t you just put her on a scale?”  And that is precisely what is happening in hospital blood cases. They are not measuring ETOH or drinking alcohol, They are not measuring that at all.  What they are doing is called an indirect enzymatic assay testing, and I am going to explain every single one of those words.  But the reason why you have to be aware of it is because in trauma-related cases where you have someone who is a drinking driver or accused of drinking and driving shows up in a hospital, that is where you’ll see it most of the time.  And then they pull, as part of their medical course of treatment, different blood tubes at the end of the day.

What you have to do is you have to think about the environment that it is in. The environment that it’s in is not a forensic environment.  It’s not run by scientists.  It’s run by clinicians – people who are looking to do “stat, immediately, now” treat someone with an acute problem. So it’s fast and it’s dirty and you can’t run a GC type of test or Gas Chromatography type of test because that takes several hours.  By that point in time the person is either dead, treated, or stabilized.

So instead what exists out there is hospital blood testing because it’s fast. This type of testing is also fast but it’s not accurate as we saw here.  It is not precise.  It’s not selective and it does not test for marijuana to the exclusion of all other things. That is the problem with hospital blood testing. It’s helpful in a clinical environment of an emergency room. It’s disaster in a courtroom.