The Forensic Science Board held a public hearing on August 22, 2018 regarding the Board Notice of Intended Regulatory Action to Consider Amendments to 6 VAC 40-30, the Regulations for the Approval of Field Tests for Detection of Drugs. Unfortunately, the public hearing date was incorrectly listed on www.townhall.virginia.gov as August 22, 2019. The error was not discovered until after the public hearing had occurred. It should be noted that the Department of Forensic Science notified its stakeholders, including law enforcement, Commonwealth’s Attorneys, and members of the criminal defense bar, of the Notice of Intended Regulatory Action and the correct date for the public hearing, by separate email on August 9, 2018.
In an effort to keep interested parties who utilize Virginia’s Regulatory Town Hall informed, the Department is providing, as part of this General Notice, the draft minutes from the public hearing:
Draft Public Hearing Minutes
Forensic Science Board Meeting
Public Hearing on Notice of Intended Regulatory Action to Consider Amendments
to 6 VAC 40-30
August 22, 2018
Department of Forensic Science, Central Laboratory, Classroom 1
Board Members Present
Colonel Maggie A. DeBoard, Chief of Police, Town of Herndon Police Department
Emily M. Brewer, Delegate (Designee of Delegate Robert B. Bell, Chair, House Courts of Justice Committee)
Shannon Dion, Director, Department of Criminal Justice Services
Colin L. Drabert (Designee of Delegate Robert B. Bell, Chair, Virginia State Crime Commission)
James F. Entas, Assistant Attorney General (Designee of Attorney General Mark R. Herring)
William T. Gormley, M.D., Chief Medical Examiner
Caroline D. Juran, Executive Director, Board of Pharmacy
David R. Lett, Petersburg Public Defender
Edward M. Macon (Designee for Karl R. Hade, Executive Secretary, Supreme Court of Virginia)
Colette W. McEachin, Deputy Commonwealth’s Attorney, City of Richmond –Chair
Richard P. Meyers, Scientific Advisory Committee Member
Colonel Gary T. Settle, Superintendent, Virginia State Police
Denise M. Toney, Ph.D., Director, Division of Consolidated Laboratory Services
Board Members Absent
Vince Donoghue, Essex Commonwealth’s Attorney (Designee of Senator Mark D. Obenshain,
Chair, Senate Courts of Justice Committee)
Leslie E. Edinboro, Ph.D., Scientific Advisory Committee Member
Legal Counsel for the Forensic Science Board
Elizabeth B. Myers, Assistant Attorney General
Staff Members Present
Wanda W. Adkins, Office Manager
Jeffrey D. Ban, Central Laboratory Director
David A. Barron, Ph.D., Deputy Director
Amy M. Curtis, Department Counsel
Leslie H. Ellis, Human Resources Director
John T. Griffin, Northern Laboratory Director
Katya N. Herndon, Chief Deputy Director
Linda C. Jackson, Director
Alka B. Lohmann, Director of Technical Services
M. Scott Maye, Chemistry Program Manager
Carisa M. Studer, Legal Assistant
With thirteen members present, a quorum was established.
Call to Order
Colette McEachin, Chair of the Forensic Science Board (“Board” or “FSB”), called the public hearing to order at 9:30 a.m. The public hearing was held on the Notice of Intended Regulatory Action (NOIRA) to consider amendments to 6 VAC 40-30, the Regulations for the Approval of Field tests for Detection of Drugs.
Call for Comment:
Ms. McEachin called for public comment on the NOIRA to consider amendments to the Regulations for the Approval of Field Tests for Detection of Drugs (6 VAC 40-30), which would permit the approval of presumptive mobile instruments as field tests for the detection of controlled substances.
No member of the public elected to provide comment in response to the Chair’s request.
Amy Curtis, Department Counsel, presented to the Board one public comment posted on the Town Hall website, and two comments she received directly. All received comments were from law enforcement representatives in support of the proposed amendments.
In response to questions raised in one comment, Ms. Curtis reminded the Board that the Office of the Attorney General will review the proposed amendments as they proceed through the regulatory process. She also explained that the results obtained from these presumptive mobile instruments would only be admissible under Virginia Code § 19.2-188.1 for probable cause in preliminary hearings. The substances would still need to be submitted to the laboratory for analysis. The regulatory amendments being considered also do not require law enforcement agencies to purchase and utilize the presumptive mobile instruments. The proposed amendments simply provide agencies with an alternative, which agencies may find beneficial in light of the fact that law enforcement has discontinued the use of presumptive chemical tests due to safety concerns. Agencies that do not implement the presumptive mobile field tests would need to have DFS proceed with analysis of any suspected controlled substance for preliminary hearings.
Ms. Curtis informed the Board that she also received an inquiry from an attorney with the Indigent Defense Commission. The attorney indicated that he had a couple of cases where the presumptive chemical field test showed a false positive and requested data on the accuracy of both the presumptive chemical test and the considered presumptive mobile instruments. The Department had no responsive records related to the presumptive chemical tests, but Ms. Curtis indicated she provided the attorney the studies she had previously shared with the Board on the presumptive mobile instruments.
Ms. Curtis also informed the Board that she had spoken with a representative of the Fairfax Police Department, regarding his agency’s testing of two presumptive mobile instruments. Fairfax Police Department was one of the agencies that requested the Board consider amendments to the regulations to permit the utilization of presumptive mobile instruments. The representative indicated the presumptive mobile instruments that his agency tested were not able to identify opioids, but the instruments were useful for the identification of cocaine and hard pills. He indicated that the Fairfax Police Department would still be interested in obtaining a number of these instruments for its use if the regulatory amendments were approved.
Ms. Curtis concluded by reminding the Board of the remaining stages under the Administrative Process Act as the Board proceeds with the consideration of amendments to 6 VAC 40-30.
There was one inquiry from a member of the public in the audience about how the presumptive mobile instruments work when testing a suspected controlled substance. Director Jackson explained how these types of instrument function.
The public hearing adjourned at 9:50 am.
The approval of these draft minutes will be considered by the Forensic Science Board at its meeting on October 17, 2018.
In an effort to continue to offer interested parties the opportunity to comment on this regulatory action, a public forum will be open with this General Notice from the date of its posting until October 7, 2018. Public comments may also be submitted to Amy M. Curtis, Counsel for the Department of Forensic Science, at email@example.com. Any comments received will be shared with the members of the Forensic Science Board at its October 17, 2018 meeting.
Additional public hearings will be held during the course of the regulatory process as required by the Virginia Administrative Process Act (Virginia Code § 2.2-4000 et. seq.).