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SF public defender writes DA about toxicology concerns

by Seth Hemmelgarn

Dr. Nikolas Lemos
Dr. Nikolas Lemos  

San Francisco Public Defender Jeff Adachi is continuing to express worries about test results from the toxicology lab at the medical examiner's office, telling District Attorney George Gascón that he's "very concerned" that the lab isn't complying with state regulations.

In a wrongful termination lawsuit filed in February in San Francisco Superior Court, Dr. Nikolas Lemos, the city's former chief forensic toxicologist, said the medical examiner's office kept Dr. Luke Rodda on staff even after it was learned that Rodda didn't meet the requirements to be certified under Title 17 of California's Code of Regulations, which addresses DUI analysis.

Among its other tasks, the medical examiner's office performs forensic toxicology analyses on people who've died as well as analyses in DUI cases.

In his lawsuit, Lemos, said he "begrudgingly resigned" in July 2016, after Christopher Wirowek, who's now the medical examiner's director of operations, told him not to tell anybody else about Rodda's lack of certification and to allow Rodda to perform DUI testing. Rodda has since replaced Lemos, who's gay, as chief toxicologist.

In his March 21 letter to Gascón â€" and copied to Chief Medical Examiner Dr. Michael Hunter â€" Adachi said he's "very concerned" that the medical examiner's toxicology lab "is not in compliance and currently may be violating the mandatory requirements of Title 17, affecting both current and future cases."

Among other requests, he asked the DA's office to "review any cases where Dr. Rodda was the supervising toxicologist, specify remedies, including vacating guilty pleas or convictions after a trial and dismissal of the charges.

In an interview shortly after he sent the letter, Adachi said, "I remain very concerned about the allegations made by Dr. Lemos, and if it's true, it calls into question every test that was performed by that laboratory," not just DUI cases.

"I have reviewed some of the documents where Dr. Rodda signed off on toxicology examinations and testing that was done by the lab, and my understanding of Title 17 is that not only do the individual technicians have to be Title 17 [qualified], but the supervisor who signs off on all those tests must be Title 17 qualified," Adachi said.

He said it's also "extremely disturbing" that his office was "never advised" of Rodda not meeting Title 17 requirements.

Ron Owens, a spokesman for the California Department of Public Health, told the Bay Area Reporter that after Lemos left last year, the medical examiner's office named someone else who has Title 17 qualifications to serve as forensic alcohol supervisor.

But Adachi said it still "makes absolutely no sense" that Rodda, as the chief toxicologist, would be overseeing testing that he's not qualified to do.

He said he planned to meet with Gascón, and he's been in contact with Hunter, who's "promised to cooperate in this inquiry."

Wirowek, of the medical examiner's office, declined to comment on Adachi's letter, citing the "pending litigation."

In its response to Lemos' complaint, the city said his lawsuit "is frivolous, vexatious, and unreasonable," among other things.

Gascón hasn't issued a written response to Adachi's letter, but Adachi said in a follow-up email sent to the B.A.R. that Chief Assistant District Attorney Sharon Woo called him and said that because "the chief toxicologist did not do any of the testing himself there is no reason to question what may have happened or the integrity of the testing."

Alex Bastian, a spokesman for Gascón, said, "Dr. Rodda has not tested nor attested to any Title 17 DUI cases, and it appears as though the lab is in compliance with Title 17."

 

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