Controlled Substance Laboratory Analysis | How Much Testing Is Required? 2

Controlled Substance Laboratory Analysis | How Much Testing Is Required?

The Illinois controlled substance act determines a person’s sentence depending on the weight of “any substance containing cocaine”. In podcast episode 046 of the Criminal Nuggets Podcast, I discuss a case involving a stipulation to the drug amount and testing that goes way wrong.


Did trial counsel commit ineffective assistance of counsel by entering into a stipulation that rescued the State from having to prove the unprovable, namely, that the weight of the illegal substance defendant possessed was “900 grams or more”?

Illinois Controlled Substance Act Charges

Defendant is serving 25 years in prison for unlawfully delivering 900 grams or more of a substance containing cocaine, an offense he committed while having a prior conviction of unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D)).

Defendant was charged under the Illinois Controlled Substance Act. The exact charge Defendant faced reads, in part, that –

“… it is unlawful for any person knowingly to … possess with intent to…deliver…a controlled substance…Any person who violates this Section with respect to the following amounts of controlled…substances…is guilty of a Class X felony and shall be sentenced to a term of imprisonment as provided in this subsection (a)…not less than 15 years and not more than 60 years with respect to 900 grams or more of any substance containing cocaine…”

720 ILCS 570/401(a)(2)(D).

The Law

The Illinois Supreme Court of People v. Jones, 174 Ill. 2d 427 (1996), discusses this measurement and testing issue.

That case distinguishes between the testing of pills v. a powder.

Random pill testing is sufficient to prove all group of pills are all the same chemical because of the circumstantial evidence around pills.

Pills will have similar –


– that powder simply will not have. Furthermore, the likelihood and risk that multiple substances can be mixed into a powder and thrown into a plastic baggy is great.

Proof beyond a reasonable doubt, thus, requires that separately packaged baggies of suspected baggies be tested individually to prove their contents. To do otherwise would be to rely on rank speculation. Our system requires much much more.

The Scramble to Fix It

It was not as though the trial attorneys did not see the issue and try to fix it.

The record reveals a mad scramble to “undo” the stipulation. There was a defense motion for a directed finding after it was clear that the mixing had occurred.

Denied. The judge said, “You stipulated! So Nah Nah.” Maybe they didn’t use those words but that was pretty much the reasoning.

There is more. The defense team was then ready to argue to the jury that the prosecution did not prove beyond a reasonable doubt that there was more than 900 grams of cocaine. But the State made a motion in limine that prevented the defense from arguing exactly that point.

Again, the judge them a chance to fix the mistake. They couldn’t explain to the jury that because of the mixing of the baggies the State could not prove that 900 grams or more of a substance containing cocaine was present!

So it was not like the trial team did not vigorously try to undo what had happened. Their efforts just didn’t bear any fruit.

The Holding

Unfortunately, the appellate court conclude that the trial attorney was ineffective for agreeing to the stipulation before carefully examining the laboratory records.

Trial counsel should have investigated whether the substance in each of the 15 bags was separately tested, since the weight of the illegal substance was an essential element of the State’s case and, according to case law, the powder in each separate container had to be tested.


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