Irsay case highlighting new delays at State Toxicology Lab

INDIANAPOLIS (WISH) – Colts owner Jim Irsay is expected to make Indianapolis’ final Super Bowl pitch to NFL owners in Atlanta on Tuesday, two months after he was arrested on preliminary OWI charges. Meanwhile, the case against him very likely remains ensnared in a growing backlog at the Indiana State Department of Toxicology.

Irsay was arrested on Sunday, March 16, just before midnight in Carmel. He was preliminarily charged with one misdemeanor count of operating a vehicle while intoxicated and four felony counts of possession of a controlled substance. He was released from jail the following afternoon, and immediately checked into a rehab facility out of state.

No formal charges have been filed in the case since then, and Hamilton County Prosecutor Lee Buckingham has declined to comment repeatedly when asked if formal charges will be filed, and if so, when.

I-Team 8’s calls to the Prosecutor’s office Monday were not returned. Irsay’s attorney, Jim Voyles, also declined comment on the pending case Monday.

But, a Carmel Police spokesman said the case remains in legal limbo, as prosecutors and police wait on the results of blood samples sent to the Indiana State Toxicology Lab for testing nearly two months ago.

PATTERN OF DELAYS

I-Team 8 first noted delays in testing completion at the lab four years ago. While the lab had cleared some of its backlog in recent years, a sudden reduction in staffing and re-training has caused it to increase again.

Backlogs in drug testing now stretch as long as eight months. Alcohol tests routinely take as many as four months to complete.

“That’s not acceptable,” the agency’s Director Ed Littlejohn told I-Team 8. “I’d like a 30 day turnaround on the drug cases. But, for everything we’re trying to do right now, that’s the number of where we’re at.”

More than 2,600 vials of blood are now waiting to be tested inside a refrigeration unit in the lab. That’s causing a bottleneck in some prosecutions across the state.

Littlejohn, who took over his position in April 2012, won’t speak about specific cases, including Irsay’s. But, he acknowledged the eight month average wait on drug testing doesn’t apply to every case.

“There are certain high profile cases that we’ll take on our own just to go ahead and rush it through the process, just because we know it is a high profile case. And, we often get rush requests. Any death case, any case involving a child, sexual assaults, for example, get prioritized,” he said.

Some prosecutors say they’ve learned to work around the delays, by using that priority system.

“Our office relies on the State Department of Toxicology in potential impaired driving cases where suspected drug use is under investigation,” said Marion County Prosecutor Terry Curry in a statement to I-Team 8. “In those cases, we have a good working relationship for managing when a case requires an expedited time line. We rely on the Marion County Crime Lab for alcohol testing in potential impaired driving cases and other investigations.”

Even so, Littlejohn said that “work-arounds” shouldn’t be a long-term solution.

“We provide information. And, if information is not timely, then we’re not doing our job. Absolutely, we must do better. An eight month turnaround on general cases is not acceptable in my mind,” he said.

THE GROWING BACKLOG

So, why is it happening?

Last year, the toxicology lab received more than 26,000 alcohol testing requests and nearly 7,000 drug testing requests from all 92 Indiana counties. But, high turnover has left just a handful of scientists to process them.

“We have five scientists, one of whom is still in training and not released to do actual casework. So, we have four scientists trained to do alcohol and some drug confirmations. We are in the process of hiring three more scientists, and we have another vacancy we’ll be looking at later this year,” Littlejohn said.

But, new hiring won’t happen overnight. And, even when it does, cases will likely to continue to pile up.

“The existing staff has to be pulled off of casework to train the new staff. So, it’s a process where you have to slow down to speed up. And, it’s very easily six to nine, or even a 10 months process to bring a new scientist on board,” Littlejohn said.

A 2011 audit of the department uncovered similar delays in case processing, along with paperwork mistakes, and testing error margins of around 10 percent of marijuana cases, and up to 32 percent on cocaine cases.

Some of the solution at that time was increased outsourcing to private labs outside the state, mainly NMS Labs based in Pennsylvania.

That process continues for all cases, except those involving alcohol, cocaine and THC—the substance in marijuana that produces a user’s high.

Littlejohn says the department is attempting to keep that work “in house” to decrease costs.

“Outsourcing is very expensive, especially when it comes to testimony. It’s easy to involve $8,000 to $10,000 just in testimony costs on a major case,” he said.

Local scientists can better collaborate with prosecutors, he added.

Outsourced cases, however, do sometimes involve “rush” requests made on “high profile” cases. Testing resolution can occur in those cases in a matter of weeks, Littlejohn said.

No one will confirm whether Irsay’s case is potentially among them, though Carmel Police confirmed that all Hamilton County drug cases are sent to the State Department of Toxicology as routine practice.

High profile or not, Littlejohn says his lab must improve.

FOUR YEAR ROLLOUT

Many of the improvement goals center around 250 new alcohol breath testing machines, known as EC/IR II. They were purchased by the Department of Toxicology in 2009 at a cost of $1.5 million.

Only 40 of the machines are currently in use; delayed by implementation of new rules that had to be promulgated to the public to comply with Indiana law. That didn’t happen until February of this year.

Asked why the switch to the more reliable testing machines hadn’t occurred sooner, Littlejohn placed much of the blame on previous administrations.

“You would have to ask the prior directors,” he said. “I can speak from my own time in the agency. As I stated, I joined the agency in April of 2012. We immediately started the process of getting the instruments rolled out, which means that you have to get the new rules written. They have to become promulgated. There are about 5,000 certified operators which have to be exposed to the new instrument. Plus, you have to replace all the existing instruments–about 210 in the state–with the new EC/IR II.”

Still, the machines have continued to sit, unused, during Littlejohn’s two year tenure as well.

“My original goal was a lot less,” he admitted. “But, I did not know it would take 8 months just to get the rule promulgated.”

Littlejohn said the department plans to certify the remaining 2,200 operators on the new EC/IR II machine by September.

PLANS FOR IMPROVEMENT

Littlejohn also set a goal last year to have all alcohol tests delivered to the toxicology lab completed within 15 days–and all drug tests within 30 days–by the end of 2014. But, with the loss of additional scientists, he now says it’s unlikely that goal will be met.

“We’re moving forward, but we’re not there yet,” Littlejohn said.

Because of that, some counties are already spending extra money to send their toxicology tests directly to private labs. One Indiana county is now sending all its drug testing to a private lab because of the backlog, Littlejohn said, though he would not confirm which one.

“We are taking steps to affect positive change,” he said. “When I became the director here in 2012, I figured it would be a 3-5 year process to where we would have this laboratory and the field component with the breath tests instruments where I envisioned it should be. We are on that path.”

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