Labs’ testing limitation casts doubt on some meth cases in Wisconsin | Crime

Higar and her attorney, Andrew Martinez, never disputed that Higar was driving with that level of meth in her system. What could not be proven, they argued, was that the meth was illegal, and a Sauk County jury ultimately found Higar not guilty of third-offense driving with a controlled substance in her system.

Officials with the UW-Madison-based Wisconsin State Laboratory of Hygiene and the Department of Justice’s crime lab — which do the vast majority of toxicology tests used in state prosecutions — acknowledge that they don’t have the equipment needed to distinguish between two isomers, or forms, of methamphetamine.

The first, known as dextro-methamphetamine, or d-meth, is commonly abused and illegal under state and federal law. The second, known as levo-methamphetimine, or l-meth, is found in at least one brand of over-the-counter nasal inhalers, and its legality varies depending on the situation, according to DOJ.

“Use and possession of pharmaceutical preparations of l-methamphetamine is legal under state and federal law,” DOJ spokesperson Gillian Drummond said in a statement. “Operating a motor vehicle with a detectible amount of methamphetamine, irrespective of its source, is a violation of Wisconsin law.”

Crime lab officials say that, in practice, legal meth is rare and appears in such low levels in over-the-counter drugs that it would be virtually impossible to take enough of it over a short enough period for it to show up in blood tests.

“It’s not an issue, particularly when you’re talking about toxicology,” said Amy Miles, forensic toxicology section director with the State Laboratory of Hygiene, which conducted the test on Higar’s blood.

At the same time, there’s little research addressing the question of how much l-meth one has to take before it shows up in toxicology tests, and a handful of criminal defense attorneys have seen some success in the courtroom by introducing the labs’ inability to distinguish between the two forms of meth.

They say taxpayer-funded labs have a duty to let the courts and the public know that the two forms can’t be distinguished once they’re in someone’s blood.

“The idea that the government that is prosecuting people to attempt to put them in a cage … doing that without full, honest, complete disclosure,” said Mike Cohen, president of the Wisconsin Association of Criminal Defense Lawyers. “That is something that should be concerning to the citizen.”

Miles said it was “unfortunate” that some defense attorneys feel the lab has “not been fair or forthcoming.”

Before Higar’s case, there was the case of Lavern Schiffman, who in September 2017 was arrested and eventually charged with fourth-offense operating a vehicle — in this case a UTV — with drugs in his system in rural Grant County.

A sample of Schiffman’s blood was sent to the State Laboratory of Hygiene, which found it was positive for meth at the level of 130 ng/mL, according to his attorney, Jeremiah Meyer-O’Day. While he was not found with any drugs, he did have a Vicks nasal inhaler in his overalls pocket.

Meyer-O’Day said he only became aware of the inhaler’s possible connection to his case when he picked one up at a store, looked at its ingredients and noticed it contained l-meth. A bit of research later and Meyer-O’Day had a credible defense: If his client wasn’t found with d-meth, and the state can’t definitively say the meth in his blood was d-meth, how can it prove beyond a reasonable doubt that Schiffman is guilty of driving with illegal drugs in his system? 

Nearly two years later, a Grant County judge granted the district attorney’s motion to drop the charge. 

Meanwhile, in Dane County, the attorney for a man charged in a 2020 vehicular homicide case is taking a similar approach to get at least some of the charges against his client dismissed.

Walter L. Johnson is charged with three felonies and a misdemeanor in the death of Kyla Robinson, 15, the only passenger in his car when he lost control on South Stoughton Road in Madison on Sept. 4, 2020.

The case has drawn attention not just because of the girl’s death but because she was the sister of Tony Robinson, who was shot and killed by a Madison police officer in 2015 in a case that still has local activists seeking to get the officer, who was cleared of any wrongdoing, fired and prosecuted.

In a July 7 motion, attorney David Bolles argued the court should dismiss two charges accusing Johnson of killing or injuring a person while driving with a controlled substance in his system because the State Lab of Hygiene’s test of Johnson’s blood did not distinguish between l- and d-meth and because it has since destroyed the sample, making it impossible to test it again in an attempt to confirm which type of meth it was. 

Bolles declined to comment for this story. A judge is expected to rule on the motion in the fall. Even if the two charges are dismissed, Johnson would still face felony charges of first-degree reckless homicide and driving with a suspended license in a crash that resulted in a person’s death.

Miles points to a 2008 study involving 12 subjects that found l-meth could not be detected in the blood of subjects who took up to four times the recommend dosage, as well as a 1985 World Health Organization report that found little evidence people were taking inhalers with l-meth in them to get high.

But as an expert witness from Miles’ lab acknowledged during a hearing in Higar’s case in January, the 2008 study did not specifically seek to answer the question of what level of l-meth consumption would show up in a blood screening.

“There are no publications that demonstrate it is possible to ingest enough l-methamphetamine at which point it would be detectable in blood,” Miles said, but she knew of no other studies that seek to address that question.

In a 2006 study, researchers found that intravenously administered l-meth can produce a high, but not one as strong as one produced by d-meth, and subjects had to take about twice as much l-meth as d-meth to achieve that high.

Cohen said he’s known about the labs’ meth-testing limitations for several years, and that some more seasoned criminal defense attorneys do as well. That’s not the case with some prosecutors.

Sauk County District Attorney Michael Albrecht said his office wasn’t aware of the testing limitation until the Higar case, and that the strategy used in that case has become “increasingly en vogue” among defense attorneys.

“The inability of the lab to distinguish between these two substances is a problem for prosecutions of drugged driving generally,” he said. “Any detectable amount of methamphetamine is illegal to have in your blood while driving. But if we don’t have a lab test that says it is d-meth, then we have to point to other indicators that suggest methamphetamine was used.”

Such indicators can include a finding the drug on a suspect or the suspect admitting to meth use, he said.

Anthony Pozorski, who handled the Schiffman case for Grant County, similarly said that prior to that case he didn’t know the labs lacked the ability to distinguish between the two types of meth.

“I have not been made aware that this issue will affect our ability to hold offenders accountable,” Dane County District Attorney Ismael Ozanne said. “Meth has not historically been the main type of controlled substance this community has struggled with.”

Distinguishing between l- and d-meth would require putting blood samples through what’s known as a chiral analysis, and would require equipment neither the DOJ crime lab nor State Lab or Hygiene currently has.

Miles estimated the cost of that equipment starts at about $400,000, not including the “consumables, supplies, service contracts and other resources for the instruments and corresponding testing.”

She said there are few, if any, forensic toxicology labs in the United States that conduct chiral analysis to distinguish between meth isomers, although the American Society of Crime Laboratory Directors declined an opportunity to confirm that.

“Every crime laboratory has different capabilities, policies, and procedures, and works in different criminal justice jurisdictions,” the organization said in a statement. “Crime laboratories use the most robust scientific methods that balance with their state and local laws.”

Even if Miles is right, Cohen said, it’s no excuse.

“Because someone does it wrong, it’s OK for you to do it wrong?” he said.

Meyer-O’Day said if Wisconsin labs aren’t willing to buy the equipment and do the tests, they at least need to preserve samples so that the defense can have them analyzed at labs that do conduct chiral analysis.

In 2021, the state hygiene lab received 21,658 blood samples for testing, 10,739 of which were tested for drugs. Of that number, 1,422 came up positive for meth, Miles said. In addition to tests for intoxicated-driving cases, the lab also tests samples sent in by county medical examiners.

That same year, of 4,078 sample cases handled by the state crime lab, 146 were positive for meth, Drummond said.

Meyer-O’Day said the labs’ reluctance to “affirmatively” reveal their meth-testing limitations suggests the lab technicians courts often rely on for expert testimony are “partisan” actors working for the prosecution.

“They’ve known about this for a long time and in completely bad faith withheld it from everyone,” he said.