Delays in Jim Irsay drug case linked to problems at Indana toxicology lab

It's been two months since Colts owner Jim Irsay was pulled over on suspicion of driving while impaired, and still no formal charges have been filed.

And there may be a simple reason.

While law enforcement officials decline to discuss Irsay's specific case, the blood draws conducted by the Carmel Police Department are tested by the Indiana Department of Toxicology, which has struggled for years to implement reforms, and has a current backlog of eight months for drug testing.

The delays are because the department has not had a stable staff for years, and its caseload grew from 5,960 in 2012 to 6,690 last year.

That doesn't necessarily mean Irsay's blood draw results won't be ready for another six months, however. The department does expedite certain cases when requested. But the backlog shows that problems have lingered at the department since a 2011, when an Indianapolis Star investigation revealed testing errors and dysfunction.

In fact, evidence of its past troubles are visible throughout the agency's offices on 16th Street today. Stacked in various places are boxes containing EC/IR II alcohol breath testing machines, and their accompanying printers.

The toxicology department purchased 250 of the devices more than four and a half years ago at a taxpayer cost of $1.5 million. Yet they have been sitting unused so long the warranty, which was extended once by the manufacturer, has run out. Only 40 have been deployed and 44 have been used for training.

Still, officials at the department, which was moved out of the Indiana University School of Medicine in 2012, say they are making progress at reform.

"When I took this position, I felt it would be three to five years before this agency was going to be where I felt it should be," said Ed Littlejohn, in his second year as director of the agency. "I think we're doing a lot of positives, but you're not going to change everything overnight. It takes time."

The rest of the breath testing machines — whose readings are used as evidence in court after field sobriety tests — are scheduled to be implemented before the end of this year. And Littlejohn said he's dealing with the longstanding turnover problem by adding three more forensic scientists. That would still leave the office one short of full staffing.

Because the criminal justice system relies on the department to report drug and alcohol test results quickly, Littlejohn said he is working toward a 15-day turnaround for alcohol testing and a 30-day turnaround for drug tests. "That is my goal and we're not there," he said. "We're probably not going to make that goal this year. But that's what we're striving for."

In the meantime, the department is relying on outside businesses to conduct much of its drug testing, which requires more time. "Yes, there's concern," he said. "That's why we're still doing outsourcing. I'm concerned."

Rollout didn't go as planned

The long delay in implementing the breath test machines is partly because rules had to be written into state law for how law enforcement conducts breath alcohol tests. The rules can become a contentious issue between defense attorneys and prosecutors. Then law enforcement officers have to be trained on the new equipment and protocol.

The rules for using the new breath testing machines became law in February.

The process helped lead to the downfall of the man who purchased the machines in October 2009, former toxicology director Mike Wagner, who later said he was a scapegoat for trying to bring rigorous science to the department. Wagner started to audit the department's questionable results. Prosecutors were upset about a long backlog.

An Indianapolis Star investigation showed that 10 percent of positive marijuana tests and almost one-third of positive cocaine tests from 2007 to 2009 were not conducted using accepted scientific standards.

The state restested 800 samples reported as positive for marijuana or cocaine, and reported 30 percent had no trace of either substance. There was disagreement, however, about the significance of the findings. The samples might have changed in the years after the original test.

Another issue was identified as early as 2009, when Wagner wrote in an internal email obtained by the Star that the new machines have "no shelf life per se but you do not want an instrument sitting around stagnant too long either."

The fuel cell, an electrochemical part central to the machine's function, can deteriorate over time. So toxicology employees couldn't be sure what they would find when they checked machines for use starting this year.

"We didn't know what we would see for sure and the (manufacturer) did not," Littlejohn said. "The fuel cell functions best when it's used." But, he added, "We haven't seen any issues with the fuel cells."

If there are issues, taxpayers are on the hook for repairs. There's no warranty. But Littlejohn said toxicology department employees have been trained to do many of the repairs themselves.

"The fuel cells are supposedly good for eight to 10 years," he said, "so we'll see how that plays out."

Rebuilding a reputation

Littlejohn knows the toxicology department has a dubious reputation, and law enforcement agencies are not required to use the lab for their blood testing.

Officials won't say what tests are being done for Irsay's case, or who might be doing them. But Carmel Police obtained a warrant to draw two vials of blood from Irsay after arresting him March 16 on preliminary charges of impaired driving and illegal possession of controlled substances. And a city spokesperson said Carmel Police use the toxicology department for all blood testing.

Littlejohn says the department's record is getting better.

"What I can say is, we've had people who did not use the agency in the past who came back to the agency," Littlejohn said. "We have some using private vendors just because they don't want to wait, because of our backlog. But I think there's an understanding that we're not going to put a product out there, meaning our results, that we're not comfortable with and aren't accurate."

Among Littlejohn's goals is getting the lab accredited on international crime laboratory standards.

But that won't happen soon.

"Reputations are built over time," Littlejohn said. "And the way you build a reputation is being honest, being open and being responsive to the needs of your contributors. And that's what we're doing."

Contact reporter Mark Alesia at 317-444-6311, @markalesia or mark.alesia@indystar.com.