Earlier this week, defense attorneys weighed in on a damning report aimed at the state toxicology lab, which conducts blood tests for cases of driving under the influence of alcohol and/or drugs. Attorney Rob Corry thinks officials may have waited until June to release the document (it was finished in March) for fear it would undermine the THC driving bill, which passed last month after two failed attempts. Now, NORML wants the state legislature to revisit the law -- and the head of the health department, which oversees the lab, has resigned under pressure. Yesterday afternoon, the office of Governor John Hickenlooper broke the news about Dr. Chris Urbina, the executive director and chief medical officer for the Colorado Department of Public Health and Environment. As is expected at such times, Hickenlooper's statement about the resignation was gracious. It reads:
"Chris is a true public servant and valued member of our Cabinet. We are grateful for his work at the Colorado Department of Public Health and Environment, particularly his support of safe and responsible development of the state's oil and natural gas resources. Chris also led the department in implementing LEAN process improvements to create a more responsive and effective operation that reduced unnecessary and ineffective rules and regulations."
Still, there's little doubt that Urbina's planned departure at month's end was heavily influenced by the report. As our Alan Prendergast noted, the document (on view below) "delves into employee concerns about inadequate training, unsafe storage of evidence, understaffing [and] supervisor bias."
These last claims are mainly directed at Cynthia Burbach, who oversaw the lab and regularly testified in DUI and DUID cases, and lobbied on behalf of previous driving-under-the-influence-of-drugs bills, which argued for an intoxication standard of five nanograms of THC per milliliter of blood. She, too, has resigned, stepping down at the end of May, just prior to the report's arrival.
In a remarkable, eleven-page defense of her actions issued earlier this week (it, too, is below), Burbach insists that the timing was entirely coincidental.
So, too, presumably, was the misspelling of Colorado Attorney General John Suthers's name as "John Struthers" in the release's first paragraph.
Suthers, for his part, put out a statement disputing speculation that he'd dragged his feet making the report public, claiming that he "immediately acted to ensure its expeditious release."
Not buying any of that is Sean McAllister, who is both a well-known marijuana attorney and a member of the legal committee for NORML (the National Organization for the Reform of Marijuana Laws). On behalf of the group, NORML has formally filed a Colorado Open Records Act request for all written communication between Burbach and a raft of state agencies. Additionally, he's sent a letter to Hickenlooper, Suthers, speaker of the Colorado House Mark Ferrandino and state senate president John Morse.
In the letter, McAllister tells the officials that NORML is "requesting that the Legislature reconsider its decision to impose an arbitrary DUID-marijuana standard of 5 ng/ml in light of the revelations of the drastic deficiences in the lab training, qualification, accuracy, standard operating procedures, reporting, and alleged bias of employees of the state toxicology laboratory at the Colorado Department of Public Health and Environment."
We asked McAllister to expand on his complaints -- and he had no trouble doing so.
Continue for more about the THC driving bill, including photos and documents. When asked if he thinks there was an overt attempt to prevent the legislature from seeing the toxicology lab report during the debate about the THC driving bill, McAllister says, "It's very clear to me that the report was within the knowledge of the health department and the attorney general's office by mid-March -- March 18 or 20. And there continued to be DUID debates going right into early May.
"I don't have specific evidence of a cover-up, but it seems to me it was the obligation of both the health department and the attorney general's office to make it ublic as soon as it was done -- because, as the attorney general has said, it has exculpatory value to defendants. The effect of what they did was to deny people information that was relevant -- and as we said at our press conference the other day, hundreds of people likely pleaded guilty or were convicted without the benefit of this information. So whether it was a cover-up or just lazy bureaucracy, it deprived people of knowledge about health department bias."
He also casts blame on district attorneys around the state. In his view, they began to quietly stop using Burbach or people who'd complained about her to testify in DUI trials in an effort to keep the report's revelations from tainting cases. "If there's evidence that can help acquit somebody, it has to be disclosed -- but this information wasn't," he maintains. "That suggests to me that the DAs were more interested in convictions than the truth."
Regarding AG Suthers's assertion that the report was issued expeditiously, McAllister says, "that position isn't defensible. It doesn't pass the laugh test. They knew the report was valuable to defendants and resisted disclosure at every level. My sense is that they hoped to keep it quiet. The statement that it was expeditious, I think, conceals the attorney general's real response to it, which was obfuscation."
To McAllister, Burbach's bias in favor of the THC driving bill was clear. "As the co-chairman of the DUID committee, I saw Ms. Burbach commonly come in with other anti-marijuana advocates, and she said, 'The science is clear. One or two nanograms and you're impaired.' So she supported the five nanograms, but felt it should be even lower."
These assertions are called into question, McAllister believes, by numerous studies that range from ambiguous to uncertain about actual THC intoxication levels and the amount they vary from individual to individual -- "yet you've got the state toxicologist coming in and saying, 'There isn't any doubt.' And I think legislators put a lot of weight on her testimony and credibility."
McAllister stops short of calling all the data from the lab inaccurate, conceding that most re-tests of samples by defense attorneys typically came up with numbers similar to those discovered by state technicians. But, he says, "I think it was the interpretation of the numbers that were cooked, politically interpreted. Ms.Burbach would come into court and say everybody at five nanograms is impaired, and she never acknowledged a lack of certainty. And that may have tipped the balance and gotten innocent people convicted.
"As a scientist, she's supposed to be unbiased. But she was giving very politically oriented testimony based on an agenda. That's the scandal here."
In light of this situation, McAllister believes "the legislature should reconsider the limit, and give us an opportunity to, for example, have a hearing where we bring our experts in from the marijuana side -- experts showing the ambiguity."
Meanwhile, McAllister plans to meet with a number of legislators next week with the idea of encouraging them to reopen the subject. He admits it may be a tough sell: "I think they're fatigued with it," he says. "But just because you're tired of an issue doesn't mean you should get it wrong. So we're hoping they'll introduce a repeal or modification."
Continue to access five documents: Burbach's retirement release, NORML's open-records request and letter to the governor and legislators, the complete report about the lab, and a release from district attorneys defending the lab's work.
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More from our Marijuana archive circa December 2011: "Medical marijuana: CDPHE's Dr. Chris Urbina on physician assistants, patient denials."