SD Supreme Court: Evidence Of Drug In System Leads To Cocaine Possession Conviction

South Dakota’s laws allow criminal prosecution of people whose bodily fluids hold evidence that a drug has been metabolized, even if the drug is no longer present.
   A Lawrence County public defender argued to the state’s Supreme Court Monday that those laws unconstitutionally put the burden of proof on the defendant.
   In March 2012, Sean Whistler was arrested in Spearfish. He had been drinking and had marijuana on his person, in his car, and in his system.
   Also found in his system was benzoylecganine, the metabolite for cocaine. Based on this urinalysis, Whistler was charged and convicted for possession of cocaine.
   Public defender Matthew Pike argues that the test does not prove where, when, and if cocaine was ingested. Because this corroborating information is missing, he says the chemical test cannot by itself lead to a conviction. If the test is used as the only evidence, the burden is placed on the defendant to prove the circumstances.
   Pike says because the test can’t tell where the metabolite was produced, the trial court might not have jurisdiction over the case. And he notes that the metabolite is not cocaine:
   “When people are now convicted in our state for, quote, ‘possession of a controlled substance, specifying cocaine,’ when there is no cocaine anywhere—that seems to be an absurd result.”
   Pike says when the metabolite is produced in the body, the person doesn’t know it’s there or have any control over it. He says these facts negate the part of South Dakota law that says the defendant must knowingly possess the substance.
   Assistant Attorney General John Strohman says Whistler’s issue is with the legislature, because that body passed the law that allows a metabolite to show evidence of possession.
   “When cocaine was found in the urine of appellant in Lawrence County, the jurisdiction was taken care of,” he says. “It was found the same way as if it was found in his pocket.”
   Strohman says the defendant can bring experts to say the metabolite is not cocaine or bring witnesses to prove that he did not knowingly ingest cocaine. And he tells justices that doing so does not unconstitutionally put the burden on the defendant to prove himself not guilty because the state has no statutory obligation to provide evidence beyond the test.
   “It does not shift [to] the defendant. What I’m saying is, the state has met its burden,” Strohman says.
   South Dakota v. Sean Whistler is one of several cases the state Supreme Court will hear as it meets in Vermillion this week.