94-0356 La.App. 4 Cir. 9/29/94, Sciortino v. Department of Police

• Decision Date: 29 September 1994
• Citation: 94-0356 La.App. 4 Cir. 9/29/94, Sciortino v. Department of Police, 643 So.2d 841 (La. App. 1994)
• Parties: 94-0356 La.App. 4 Cir
• Court: Court of Appeal of Louisiana

Page 841

643 So.2d 841

94-0356 La.App. 4 Cir. 9/29/94

Michael SCIORTINO v. DEPARTMENT OF POLICE.

No. 94-CA-0356.

Court of Appeal of Louisiana Fourth Circuit.

Sept. 29, 1994.

Frank G. DeSalvo, New Orleans, for plaintiff/appellant.

Robert Early, Asst. City Atty., Phillip Ciaccio, Chief of Civ. Litigation, Avis Marie Russell, City Atty., New Orleans, for defendant/appellee.

Before SCHOTT, C.J., and BYRNES and WALTZER, JJ.

[94-0356 La.App. 4 Cir. 1] SCHOTT, Chief Judge.

This is an appeal from a decision of the Civil Service Commission of the City of New Orleans affirming appellant's dismissal from the New Orleans Police Department for testing positive for marijuana. Appellant was a seventeen year veteran policeman whose superior officers attested to his good record. The issue is whether appellant was denied due process when he was prevented from having an independent test performed on his urine sample and was denied the right to cross-examine the lab technician who performed the tests on urine samples which were purportedly his and were reported by the technician to be positive.

On the night of February 4, 1992, appellant was ordered to submit a urine sample for a random drug screening. The sample was collected by Marine Medical and sent to Laboratory Specialists, Inc. (LSI) via courier. When it arrived at LSI, its technician checked the signature and matching social security number and assigned a laboratory accession number to the sample.

Patricia Pizzo, director of Toxicology and Vice President of Technical Affairs at LSI, testified that parts of the urine sample were run through four different tests and were found to be positive for marijuana. She stated that her [94-0356 La.App. 4 Cir. 2] laboratory runs tests on seven to eight hundred samples per day and her involvement with this particular case was to act as certifying officer. In this capacity she reviewed the print-out which was brought to her attention by the lab technician who actually performed the test. This lab technician is the person who actually placed the samples in the machines which generated the positive results and brought them to her attention for review.

The results were sent to the City's medical officer, on February 10, 1992, but the report of the medical officer confirming the test results was not forwarded to appellant's commanding officer and made known to appellant until March 9. Appellant testified that he requested that a portion of the sample be made available to him for an independent test, but this request was denied. Ms. Pizzo testified that she could not make a sample available to appellant because she was instructed by the Civil Service Commission not to do so. At some later date after appellant's suspension on March 9, he was informed by Captain Aschebrock of the Police Internal Affairs Division that the sample at LSI had deteriorated and was no longer suitable for testing. This, despite Pizzo's testimony that these samples are frozen and kept for a year for the very purpose of enabling someone to have an independent test performed on a sample.

Appellant argues that he was denied fundamental due process because he was deprived of the opportunity to have the sample tested on his own; he was denied the right to cross examine the technician who tested the sample, and to question whether the sample tested was his own. We have concluded that these arguments have merit and that appellant was deprived of fundamental fairness and due process in the way the case against him was prepared and presented...