The state lab that tests the blood of suspected intoxicated drivers for drugs is facing a backlog of nearly 1,000 samples - and mounting - that threatens public safety, prosecutors and lab officials say.
Delays at the Wisconsin State Laboratory of Hygiene mean both innocent drivers and serial offenders at risk of harming other motorists are waiting several months longer than needed to receive justice.
Stressed by stagnant staffing levels and a caseload that has increased by nearly 90 percent since a 2003 change in state law, the hygiene lab is now taking five to seven months to determine if drivers had drugs such as cocaine or Valium in their system when they were pulled over by police. Simpler tests for alcohol are not affected.
"We've seen the backlog steadily increase this year because we don't have enough people," said Patrick Harding, the lab's toxicology section supervisor. "We have cases with people who get multiple offenses while we're still working on the first sample."
The delayed cases include that of Patrick M. Hall of Wisconsin Dells.
Hall was arrested and accused of his fifth driving while intoxicated offense on April 29, 2006, after his car hit a guardrail on Highway O in Columbia County and a sheriff's deputy arrived to find Hall too dizzy to stand upright without help during field sobriety tests, according to the criminal complaint. But Hall, who could not be reached for comment, wasn't charged right away because Columbia County assistant district attorney Troy Cross was waiting for blood tests from the backlogged hygiene lab.
On Aug. 18, 2006, Hall was sentenced to nearly a year in jail for three earlier intoxicated driving convictions, but a judge gave him 60 days to put his affairs in order and Hall remained free, Cross said. Later that month - four months after the April crash - the test results arrived, showing that on April 29 morning, Hall had an antidepressant and sedatives in his system. Cross charged Hall with fifth-offense intoxicated driving, a felony, on Oct. 2.
But before Hall showed up for his initial court appearance, he was arrested again on Oct. 13, 2006 in Wisconsin Dells, for a sixth intoxicated driving offense, according to court records. Hall had a 0.28 percent blood alcohol level - more than three times the legal limit for any driver and 14 times the limit for a driver with his record.
Hall was convicted in both cases.
If he had received timely test results and been able to bring the felony charges before the Aug. 18 sentencing, Cross said he might have been able to persuade the judge to send Hall to jail immediately and kept him off the road.
"I would have certainly had a much stronger argument to start his jail time right away," Cross said.
Looking for needle in haystack
The hygiene lab, which is part of UW-Madison, does a variety of tests, from testing for swine flu to screenings of newborns for genetic diseases. The drug testing delays at the hygiene lab are similar to a DNA testing backlog at the state Crime Laboratory that drew headlines in recent years.
The lab does not have a backlog for the more common tests for alcohol in a driver's blood, which it can handle within two to three days, said Laura Liddicoat, who supervises the hygiene lab's forensic toxicology program.
But testing for the presence of drugs in blood is much more complicated and can't be done as quickly as the tests in television dramas such as CSI. To probe for 400 illegal, prescription and over-the-counter drugs, lab workers must do a minimum of eight to 10 initial tests along with possible follow-up tests to refine the results, Liddicoat said.
"We're looking for a needle in a haystack rather than the tractor that ran into a haystack," Liddicoat said of the differences between testing for drugs and testing for alcohol.
The hygiene lab has seen the number of samples submitted rise to 2,740 in 2008, up 89 percent from the 1,452 samples submitted in 2003. During that period, the lab has maintained the same number of chemists to handle the cases: 13.
As a result of the increasing submissions and a rising number of drugs being tested for in the screens, the average time it takes to screen a blood sample for drugs has increased to 156 days. That's nearly two and a half times longer than in 2003 and an 18 percent increase over the average 132-day wait last year.
While the lab has been unable to keep up with the volume of tests, with the right resources and staffing it should be able to handle the cases within one to two months, Harding said.
"It'll never be CSI-fast but it can and should be faster than it is now," Harding said.
2003 law exacerbated problem
Harding and prosecutors attribute the rising number of samples in part to a 2003 state law that says drivers are guilty of driving while intoxicated if they have any detectable amount of illegal drugs such as methamphetamine or marijuana in their system. Prosecutors previously had to prove the defendant's driving was actually impaired by the drugs.
That lower bar for a conviction and a focus by police and prosecutors on cracking down on intoxicated drivers have led to more samples being submitted to the hygiene lab, Dane County District Attorney Brian Blanchard said.
Lawmakers didn't provide more funding for the hygiene lab as part of the 2003 change, and Harding and Liddicoat said that since then, the lab has been unable to get the money to add more chemists.
The author of the 2003 law, Rep. Mark Gundrum, R-New Berlin, defended the decision not to add chemists before the effect of the law was known. But Gundrum, who as a private attorney prosecutes intoxicated driving cases for the village of Mukwonago, has also experienced the testing delays.
The state should add chemists now, he said, a move that could mean cutting spending somewhere else in the painfully tight state budget.
"We can (add resources) and we need to do that," Gundrum said. "Public safety is always going to go to the top of the needs list."
‘Not preferable for anybody'
Liddicoat said the lab is "constantly" trying to become more efficient and is bringing online a new testing machine that will be several times faster at processing some kinds of samples.
But for about $150,000, a private lab could take care of the current excess of 600 samples to be tested for marijuana, which accounts for a large part of the overall backlog, Harding said.
The budget for both drug and alcohol tests at the hygiene lab is $1.7 million - 41 percent more than in 2003 but still only enough to maintain the same level of staff, he and Liddicoat said.
Clearing the backlog could do more than get dangerous drivers off the road. Madison defense attorney Tracey Wood said some of her clients have had to wait months for tests that sometimes help their case and occasionally lead to charges against them being dropped.
"It's not preferable for anybody," Wood said of the delay. "The state obviously has an interest in getting its tests back, and defendants have an interest as well."
Allowing the backlog to remain wastes time for courts, prosecutors and public defenders and puts the public at risk, Blanchard said.
"It's a public safety issue," Blanchard said. "If there's somebody that we're concerned that they may drive intoxicated again, what we don't want to do is have that case sitting out there for a year."