CRIMINAL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

STATE OF LOUISIANA CASE NO.529-104

VERSUS

MATTHEW SIMMS SECTION 

DRUG TEST

JULY 15, 2015

 

HON. LAURIE A. WHITE, JUDGE PRESIDING

APPEARANCES:
ZACHARY POPOVICH ASSISTANT DISTRICT ATTORNEY
ARTHUR ROWE REPRESENTING THE DEFENDANT

 

MR.POPOVICH:

Is that Mr. Simms?
THE COURT:

Yes, Mr. Simms.
MR.POPOVICH:

Okay, Your Honor, we're on page five,
529?104.

THE COURT:

All right, Mr. Paul Ube -- sit down, sir,
next to your client, your lawyer.

MR. ROWE:

Your Honor, if I could just make the Record
clear. Arthur Rowe standing in on behalf of Mr. Billot
for the purposes of this hearing only.

THE COURT:

Okay, I'm just trying to determine the issue

from his drug screen.
MR. ROWE:

I understand that.

PAUL UBE, called as a witness, after having first been
duly sworn, did testify as follows:

-DIRECT EXAMINATION-
BY THE COURT:
Q. Mr. Ube, you've been sworn in. Tell us where you
work.
A. I do the drug lab work for Criminal Court New
Orleans.
Q. All right, what did we find on Mr. Simms? He?s

been drug screened twice today through your analysis?

A. Yes, three times today.
Q. Three times? Okay, tell me what you found.
A. Okay, at 9:49 a.m. this morning Mr. Simms came into

 

the lab, and we tested him for the regular panel which
is amphetamines, benzos, cocaine, ethanol, opiates, and
cannabinoids which is marijuana. At that time, at 9:49,
his test came back positive for cocaine. The reading
was 398, and the cut off is 150.

Q. And what you mean by cut off is it?s positive of
anything over 150?

A. Yes.

Q. Okay, at 10:57 a.m. we had a rerun on it. Anybody
that comes into the lab, and test positive for any drug,
any major drugs, we have to rerun it. The Supreme Court
says that we have to give them the benefit of the doubt

and have the same sample reran.

Q. And that was the same sample that he gave at 9:49?
A. Yes, Your Honor.

Q. Okay.

A. I reran the test again at 10:57 a.m. At that time

Mr. Simms came up positive for amphetamine, and his
reading was 4,659. The cut off is 1,000 on that. And

his cocaine level dropped all the way down to 69 which

is highly unusual. I retested the sample again.
Q. The same sample?
A. To verify or find out why, try to find out why his

cocaine level dropped so much which is very, very
unusual, and his amphetamine level was up. At 11:14
a.m. I ran another test on Mr. Simms. His amphetamine
level was just about the same. It came up 4,874, and
the cut off is 1,000. And his cocaine level went from
69 to 81. It still did not reach its first reading
which was --

Q. Three ninety-eight.

A. Three hundred and ninety?six.

 

Ninety?six or ninety-eight?

A. What I was trying to determine, Your Honor, was why
his cocaine level came up that high on the first test,
and so low on the second two tests. He still had
cocaine in his system, a very small amount, on the last
two tests. But the first test was extremely high.

Q. Well, why wouldn't the first test show the

amphetamine? You think he took amphetamines from 9:49?

A. Okay, and that?s also why I ran the last two test
to find out and verify the amphetamine. The amphetamine
are just about consistent. I don't know what type of

medication he?s taking if it?s legal or illegal, but
amphetamine would have to come from a prescription drug

to be that high.

Q. Uh-huh. Well, why wouldn't it have shown up at
9:49?

A. As far as the cocaine is concerned, Your Honor?
Q. No, the amphetamine doesn't show up at 9:49.

A. No, the amphetamine is -- I don't know if he?s

taking any medication, so.
Q. So you think he might have taken the medication, it
didn't show up in the first test, and then shows up in

the second and third?

A. Right, right.

Q. Okay. All right, amphetamine ever show up as
cocaine?

A. No.

Q. Cocaine doesn't show up as amphetamine?

A. Cocaine is the only thing that -- it?s one of the
few drugs, that's cocaine is cocaine. It may be used in

different forms, but cocaine is going to come out as

cocaine only.

 

Okay. All right, thank you so much.

THE COURT:

Do you have any questions?

MR. ROWE:
Yes. I'm sorry, doctor, or sir 
THE COURT:

Lab technician.
MR. ROWE:
Lab technician, sorry.
-CROSS-EXAMINATION-

BY MR. ROWE:
Q. Sir, what medications are you aware of that would
cause a positive reading for amphetamines? What class
of medications? I know something like Adderall would,
but what else?
A. That would be included with the amphetamine;
however, the level is pretty high. I don't know what

type of medication he is taking that?s prescribed, if it

is prescribed. Is he taking any type of medication?

Q. I believe he?s on sinus medication.

A. Sinus medication?

Q. Yeah, sinus medication.

A. No, sir.

Q. So that wouldn't explain a positive reading for
amphetamines?

A. No, there?s no sinus medication that would come up

that high for amphetamine.

Q. What sort of, what sort of medication or what would
prompt such a drastic and expedient rise of the
amphetamine from the first test to the second test?

A. On the amphetamines?

Q. Cause it was the same urine, right?

 

The amphetamines? At 10:57 a.m. amphetamines
reading was 4,659. At 11:14 a.m. it was 4,874 which is
just about the same.

Q. Right.

A. If fluctuates depending upon the body chemistry,
that?s normal.

Q. If I may, if I could direct you to test one, and I
don't have the sheet in front of me. What was the

amphetamine level on test one?

A. On the first test?
Q. Yes, sir.
A. Okay, let?s see. The amphetamine level on the

first test was 29.

Q. Okay.
A. That was at 9:49 a.m.
Q. And, again, the test at 10:57, that was the second

test, that involved the same urine?
A. It came from the same sample.
THE COURT:
That means the same urine.
THE WITNESS:
Yes.
MR. ROWE:
It wasn't a second? Okay.
THE COURT:
So it can increase in the urine all by itself
outside of your body?
THE WITNESS:
Yes.
BY MR. ROWE:
Q. And, again, you said this was extremely unusual.

This series of events, right?

 

are talking about the cocaine. The cocaine
is the one that I was concerned about at first; however,
after running him and found that he had this much
amphetamine in his system I ran his sample again.
THE COURT:
So he's excuse me, I didn't mean to
interrupt you.
THE WITNESS:
No, that?s okay.
THE COURT:
He went back down to take another test. Did
you test a second sample from him?
THE WITNESS:
Yes.
THE COURT:
I thought all three of these was the same
urine.
THE WITNESS:
Not from the first. The second two are the
same, from the same urine.
THE COURT:
Okay, so the first one was one sample.
THE WITNESS:
Right.
THE COURT:
And the second two was another sample?
THE WITNESS:
Yes.
THE COURT:
That makes sense.
MR. ROWE:

Q. Are the levels that you observed in that sort of

 

timeframe consistent with taking amphetamines

essentially immediately? I'm sorry, I'm just trying to

figure out that seems like a huge rise to go from -
THE COURT:

Well, it probably wasn't his urine the first
time. That?s the point. The first urine he used had
cocaine; the second urine is his urine and it?s
amphetamines.

Okay, anything else?
BY MR. ROWE:
Q. Doctor, how many other tests have you conducted
today with these machines?
A. I'm sorry?
THE COURT:
How many other tests today? How many tests
today have you all done down there?

THE WITNESS:

How many tests did I run?
THE COURT:

Yeah, today.
THE WITNESS:

On him?
THE COURT:

No, I think he means --
THE WITNESS:

In general?
MR. ROWE:

In general.
THE WITNESS:

Today? The entire morning?
MR. ROWE:

Yes.

 

THE COURT:
A lot.
MR. ROWE:
A lot?

THE WITNESS:
How about two hundred.
BY MR. ROWE:
Q. Okay, and have you seen inflated amphetamine
readings in any other test that would be inconsistent?
A. Look, let me explain to you what takes place, okay?
In the morning at six a.m. when I get in the drug lab,
that analyzer is calibrated on a daily basis, every day.
Periodically it?s checked for the calibrators and the
control to make sure that everything is in sync, and
that is being done. That?s the law that we have to
follow, okay. And prior to coming here, I checked the
calibrators and the control and it?s consistent all
morning. There was nothing wrong with the analyzer.
Q. I'm sorry. During these drug test is somebody
observing them urinate?
A. What?
THE COURT:
Say it again so he can hear you. Did
somebody watch him urinate?
MR. ROWE:
Yes.
THE WITNESS:
Did somebody do what?
THE COURT:
Say it again, please.
BY MR. ROWE:

Q. Did someone watch him urinate into the cups?

 

That?s the procedure that we have to follow. When

Mr. Simms come in, or anyone comes in for a drug test,

they are checked in at the main desk. After leaving the
main desk they are given a sample cup. They take that
sample cup which is sealed. Take it to the back. Give

a sample of urine, male or female, with a monitor, male
or female. They are monitored. After they are
monitored, that very same sample is handed to the
technician. We in turn place it in the analyzer. The
chain of command is the person that observed him taking
the test, or her, to the lab technician to the analyzer.
And everything is done that way.

Q. And as far as you know in this particular, Mr.
Simms? case, proper procedure was followed on both

testing occasions, correct?

A. That was his test and his test only.

Q. Okay, and that applies to the first and second

test?

A. The same way. Everything is done the same.
MR. ROWE:

All right. Thank you, Your Honor. I have no
further questions.
THE COURT:

Thank you. Thank you, Mr. Ube. I appreciate

it.
THE WITNESS:
Thank you very much.
THE COURT:
All right. Do you have a prescription for
amphetamines?
MR. SIMMS:
I have a I went to Wal-Mart and bought 

10

 

THE COURT:
Just an amphetamine I'm asking.
MR. SIMMS:
Suda, Sudafex? It?s a nasal spray.
THE COURT:
Do you have a --
MR. SIMMS:
I had to give my I. D.
THE COURT:
Sir, I know your numbers are really high.
Just listen to my question. Do you have a prescription

for amphetamines?

MR. SIMMS:
I bought it over the counter, ma'am. No, I
don't. No, ma'am, I don't.
THE COURT:

You don't have a prescription for
amphetamines?
MR. SIMMS:
No, ma'am.
THE COURT:
Okay, all right.
MR. ROWE:
Your Honor, I have brief argument, if I may.
Your Honor, again this is --
THE COURT:

You can come back on Monday for a drug

screen.
MR. ROWE:
That?s what I would ask, Your Honor. Thank
you.
THE COURT:

11

 

You might want to bring your nasal spray with
you.
MR. SIMMS:
I will bring that for you, ma'am. I give you
my word.
THE COURT:
Okay. What else are we scheduled for with
him today.
MR. POPOVICH:
We already have a new date, August 5.
THE COURT:
We don't have a new date?
MR.POPOVICH:

We do, August 5.

THE COURT:
Okay.
MR. SIMMS:

Can I say something else, Your Honor?
THE COURT:
No, please don't say anything else. I may

change my mind.

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CERTIFICATE

This certificate is valid only for a transcript
accompanied by my original signature and original
required seal on this page.

I, MARLENE C. RODRIGUEZ, Official Court Reporter in
and for the State of Louisiana, employed as an official
court reporter by the Criminal District Court, Orleans
Parish, for the State of Louisiana, as the officer
before whom this testimony was taken, do hereby certify
that this testimony was reported by me in the stenotype
reporting method, was prepared and transcribed by me or
under my direction and supervision, and is a true and
correct transcript to the best of my ability and
understanding;

The transcript has been prepared in compliance with
transcript format guidelines required by statute or by
rules of the board or the Supreme Court of Louisiana.

I am not related to counsel or to the parties herein nor

am I otherwise interested in the outcome of this matter.

 

 

2/1/ 
MARLENE C. RODRIGUEZ

Official Court Reporter
Criminal District Court

Section 

13