The above is Part Three 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:

What we’re going to do, because it is early in the morning and I hate early in the morning… But I love my coffee. I am going to need some volunteers and I am actually going to pick them because I am usually the person in the seat who hates to be bothered this early in the morning. I am going to pick you, and you looking down, trying not to be picked. Come on up. What we have here is the most popular form of reagent based testing that is done on the street. This is called the NIK Public Safety, the Narcotics Identification System. Doesn’t it sound really wonderful? It is a colorimetric test; this is what they do when they stop someone on the side of the road. I am going to ask you to do this. This is just coffee from my room. Would you do me a favor? Would you raise your right hand? Repeat after me; I am going to put you under oath. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?

Female: I do.

Are you, right now under the penalty of perjury, are you in possession of marijuana? Are you?

Male: I would say that I do not think I am in possession of it.

Alright, lawyer.

Female: Not that I am aware of.

Not that you are aware of, okay. Is it marijuana? Take a look at it. It just came right out of this package, you saw me open it. Is it marijuana?

Female: No.

Male: No.

Alright. What I am going to do here is take this kit, and it is a color based reagent test kit, it is based upon three ampoules and the way that different things that are there. What we’re going to do is follow the exact directions that are there. As you can see, there is nothing in here whatsoever. And I am just going to get some air introduced in there, I am going to flap the darn thing over, I am going to follow the directions on the thing that’s here. Why don’t you do me a favor. Why don’t read out loud the directions that are right there so that everyone can see that I am doing what I am supposed to be doing?

Female: Break right ampoule, agitate one minute.

What is the next step?

Female: Break middle ampoule, wait for color. Break left ampoule, let color transfer to lower layer.

Okay, so we’re agitating it. The point of it is that this is, like I said, probably the most popular form of testing that is going out on the street whenever you have a solid drug dose. There are ones for marijuana. There are specialized ones for different things that people run into – heroin. That’s there. Now we’re going to hit that middle one, okay. Wait for the color to develop, that’s what it says. And then the last one, it’s there. As you can see it is kind of orange thingy, and I’ll pass it around so that everyone can see it. This is a negative. It is kind of a blondish type of color that’s there. You can see because they want to make it very easy for street cops to know – purple means bad stuff, means marijuana, means that you got it there. I am going to pass this around.

So this is how you would do it out on the street. I am going to give you each one of these. Okay, you are going to be my testers and we’re going to see whether or not you go to jail. Are you ready? What we’re going to do is take a little bit more. I want you to open up your package there. We’re not going to jam it up with a whole bunch of stuff but we’re going to put some of it in there if you don’t mind. Just a little bit more. Then what you are going to do is shove it with the loading stick, the high-tech loading stick down to the bottom, please. Are you ready to go? That’s probably good. Now, you do the high tech loading. Your fate is in your hands, my friend.

What we’re going to do is we’re going to seal up the top. Just push it all the way down to the bottom. Break that left most ampoule. Go ahead, break it. Crush it with your fingers. Agitate it like it says. You don’t want to get the chemicals on you. Do the same thing. Okay. You’ve done it for a minute, now let’s go ahead and crack the middle one. And then what we’re going to do next is see whether or not it turns purple and you go to jail. So hit that last one. Hold your breath. Okay, I’m passing around one that I did immediately before this because it’s going to take about 30 seconds for it to develop. Purple at the bottom. What you have to do is you have to take a look at it. This is a false positive on a screening device because of coffee. Yeah, you are going to jail. Look at this. I mean she’s done. Forget about it. That’s about as purple as that guy’s shirt over there. Let’s pass it around and take a look at. Purple. He’s done too. Thank you to our volunteers. Let’s give them a round of applause.

I will pass around the rest of these kits. I don’t want to bring them back with me to Harrisburg. I have a bunch of them. And the high tech loading devices, let’s get those going around, too. The bottom line is, it’s just like John was saying earlier, that you have people who are being arrested or put in jail for even longer periods of time because we as a defense bar have refused or have been scared to learn the science of it all. We need to learn the science of it in order to be effective for our clients. At least in my opinion it’s not shame on the traffic cop, he’s there to do his job. It’s shame on us for not learning it.

We want to start talking about objective versus subjective. It’s pretty simple. Everyone knows what objective means. It’s empirical. It is what it is. Then you have subjective, which is interpreted by an individual, potentially based upon bias, confirmation bias, and is subject to interpretation. It’s something that is fungible. It is something that is variable. One person takes a look at a cloud and says “That one looks like a bunny rabbit.” Another person takes a look at the same cloud and says “That looks like a turtle.” The third one says “a rocket ship,” a fourth person says nothing at all.

That’s the difference that’s there. In science and what we need to demand in the courtroom is to get away from this hocus pocus, this make believe, this subjective science that is going on out there, and we need to move more towards the objective part of it. That’s only going to come by us forcing it as a defense bar.