If the Duquenois-Levine test is positive and the results of the Cannabis Typification or 4-AP field test are inconclusive, meaning there is no color change or it turned purple, repeat with another test kit on a separate sample. A color change to purple may indicate the sample size is too large. Consider submitting evidence when results remain inconclusive (excluding simple possession of marijuana cases that may only be submitted with a court order). For § 18.2-250.1 offenses on or after July 1, 2020, the evidence will need to be accompanied with a court order at the time of submission. Note on the Request for Laboratory Examination (RFLE) that the field test results were inconclusive.
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Can I still submit a suspected marijuana pipe or scale for analysis?
No, unless it is a juvenile case or drugs other than marijuana are suspected. As indicated in the Policy Notice dated June 23, 2020, DFS is not able to quantify the THC concentration in residues and is unable to distinguish whether any cannabinoids identified in residues are hemp-derived or marijuana-derived. Accordingly, residues should not be submitted for analysis.
What happens to the evidence after analysis in an implied consent or search warrant DUI/D case where the DFS DUI/D kit is used?
DFS is required to retain the remainder of the blood for at least 90 days after the completion of analysis. During that time, the accused has the ability to request an order directing DFS to transmit the remainder of the blood to an independent laboratory for analysis. If no order has been received, DFS will destroy the remainder of the sample after the end of the 90-day period unless the Commonwealth has filed a written request with the Department to return the remainder of the blood sample to the investigating law enforcement agency. In such case, the Department will return the remainder of the blood sample, if not sent to an independent laboratory, to the investigating law enforcement agency.
What type of evidence should be submitted in cases involving other toxicology examinations?
- For cases that are not related to DUI/D, the type of evidence that should be collected will depend on how much time has elapsed between the event and the sample collection. If the event (e.g., sexual assault) occurred within the last 12 hours, collect blood. If the event occurred more than 12 hours ago, collect blood and urine. Drugs may be detectable in urine for longer than in blood, but urine results generally cannot be used as evidence of drug impairment, merely drug use.
- DFS Toxicology will only accept human body fluids and tissues for analysis. Examples of items that are not accepted include, but are not limited to:
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- Contaminated bed sheets
- Contaminated baby bottle contents (may be accepted for potential alcohol contamination)
What happens when a search warrant is used to seize hospital blood samples (i.e., the DFS DUI/D kit is not used)?
If the DUI/D kit is not used for the collection of the blood samples, DFS will treat these cases differently (i.e., as “Toxicology-Other” cases). In “Toxicology-Other” cases, the evidence will be analyzed, and the original Certificate of Analysis and evidence will be returned to the submitting/investigating officer.
What are the exceptions to the mandatory submission of PERKs to DFS?
Pursuant to Virginia Code § 19.2-11.8, all PERKs collected from a victim who has reported the offense must submit the PERK to DFS for analysis within 60 days of receipt, except under the following circumstances:
- (i) it is an anonymous PERK;
- (ii) the PERK was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted;
- (iii) the PERK is connected to an offense that occurred outside of the Commonwealth; or
- (iv) the PERK was determined by the law-enforcement agency not to be connected to a criminal offense.
What happens to the PERK if the victim elects to report the sexual assault to law enforcement?
If the victim elects to report the sexual assault to law enforcement at the time the PERK is collected, the health care provider is required to notify the investigating law enforcement agency forthwith that the kit has been collected, and the law enforcement agency is required to forthwith take possession of the kit upon receiving such notice. With four limited exceptions, law enforcement is required submit to DFS within 60 days all PERKs where the victim has made a report of the offense.
Will DFS store the PERKs after analysis?
No. After analysis, DFS will return the PERK to the law enforcement agency. It shall be stored for 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time the kit was collected, whichever is longer. If the law enforcement agency receives a written objection to the destruction of the PERK from the victim, it is required to store the PERK for a period of 10 years following the receipt of the objection. After the mandatory retention period or any additional 10-year storage period has lapsed, the law enforcement agency shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the kit no less than 60 days prior to the intended date of such destruction. In the absence of a response from the victim, or with the consent of the victim, the law enforcement agency may destroy the kit or, in its discretion, may retain the PERK for a longer period of time.
Can victims get information about the PERK analysis in their case?
Yes.
A victim, a parent or guardian of a victim, or a close relative of a deceased victim has the right to request and receive from the investigating law enforcement agency information regarding:
- The submission of the PERK for analysis:
- The status of the analysis; and
- The results of the analysis.
However, the law enforcement agency can withhold the information if it would interfere with an investigation or prosecution, provided the victim, parent, guardian or relative is provided an estimated date on which the information may be disclosed. The victim, parent, guardian or relative must provide a current address or telephone number to the Commonwealth’s Attorney and the law enforcement agency.
Information about the location and status of victim PERKs can also be viewed in the Victim Portal of the PERK Tracking System. The Victim Portal only provides the status of the analysis (analysis completed or examination terminated) and not specific analysis results. For analysis results, contact the investigating law enforcement agency. Please visit the Victim/Survivor FAQ or the Victim Portal Manual for more information.
Where are anonymous PERKs stored and for how long?
Pursuant to Code § 19.2-11.6, all anonymous PERKs must be forwarded by the health care provider to the Division of Consolidated Laboratory Services (DCLS) for storage. DCLS is required to store each kit for a minimum of two years and for an additional period of 10 years following the receipt of a written objection to the destruction of the anonymous PERK from the victim. After the initial two years or any additional 10-year storage period, in the absence of the receipt of a written objection from the victim in the most recent 10-year period, DCLS may destroy the anonymous physical evidence recovery kit or, in its discretion or upon request of the victim or the law-enforcement agency, retain a kit longer. If the victim makes a report to law enforcement, DCLS is required to release the PERK to the law enforcement agency. Information about anonymous PERKs can be found on the DCLS website.