Massachusetts Appeals Court Reverses Boston Municipal Court Judge’s Dismissal Order for Missing Drug Certificate

The Massachusetts Appeals Court today reversed a Boston Municipal Court judge’s dismissal of a drug case where the state laboratory had not analyzed the narcotics in a timely manner.  The name of the case is Commonwealth v. Butler.

In November of 2012, the defendant was charged with distributing a Class E narcotic (gabapentin) and a school zone violation after Boston police officers allegedly saw her distribute 19 prescription pills for $20 near Government Center.  After stopping the defendant, the officers searched her and found a prescription bottle in her purse that contained 9 white oval tablets.  The school zone charge, which alleges that the defendant sold drugs within 300 feet of a school or 100 feet of a park, carries a mandatory minimum two years in jail.

Following the defendant’s arraignment on November 15, 2012, the case was continued for a pretrial conference on January 24, 2013.  On that day, the case was continued for a second pretrial conference on April 12, 2013, and then continued for a third pretrial conference on July 17, 2013.  When the parties appeared in court on July 17th, the prosecutor informed the judge that the drugs has not yet been tested by the state laboratory.  This is a requirement in nearly all drug cases, as the Commonwealth bears the burden of proving beyond a reasonable doubt that the substance allegedly distributed by the defendant was, in fact, a controlled substance.  Upon hearing that the pills had not yet been analyzed by a state chemist, the judge dismissed the case without prejudice, which means that the Commonwealth could have refiled the same charges against the defendant once the drugs were tested by the lab.  Instead, the Commonwealth decided to appeal the judge’s dismissal, and the Appeals Court ruled that it was improper for the judge to have dismissed the case.

The Appeals Court acknowledged that the drug certificate (the form generated by the chemist confirming that the substance is a narcotic) is required to be produced by the Commonwealth to a defendant who is facing a drug charge.  The Court further acknowledged that the Commonwealth’s failure to produce any mandatory discovery, including a drug certificate, is improper and a judge has the right to impose sanctions, including dismissal of the case.  However, since dismissal is the harshest sanction that can be imposed, the defendant bears the burden of establishing that dismissal is warranted.  In this case, the Appeals Court concluded that dismissal was not appropriate because there was no evidence that the prosecutor was not taking her discovery obligations seriously and the defendant was not inconvenienced by the Commonwealth’s delay in providing discovery.  Accordingly, the dismissal order was vacated and the case was sent back to the Boston Municipal Court for prosecution.

Delay in producing drug certificates is common in Massachusetts.  There are not enough chemists to test all of the seized substances in a timely fashion.  Therefore, cases are often dismissed, particularly in district court, because the lab doesn’t test the drugs in time.  This case is unusual because the judge dismissed the case on the pretrial conference date.  If the case had been scheduled for trial and the drugs had not been tested, it would have been entirely appropriate for the judge to dismiss the case (and it’s hard to imagine that the Appeals Court would have overturned that decision).  The delay in producing drug certs can also impact a defendant’s right to a speedy trial, as defendants are generally entitled to be tried within one year of their arraignments.

If you are charged with a drug crime in Massachusetts, you should immediately consult with an experienced criminal defense attorney to review your rights and consider all of your defenses.