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Blanchard v. New Jersey Department of Corrections

Superior Court of New Jersey, Appellate Division

October 29, 2019

KEVIN BLANCHARD, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

          Submitted September 23, 2019

          On appeal from the New Jersey Department of Corrections.

          Kevin Blanchard, appellant pro se.

          Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Tasha Marie Bradt, Deputy Attorney General, on the brief).

          Before Judges Ostrer, Vernoia and Susswein.

          OPINION

          OSTRER, J.A.D.

         In this Department of Corrections disciplinary appeal, we hold that the Department acted arbitrarily, capriciously or unreasonably in denying a confirmatory laboratory test of a powder, seized from the inmate, which a field test indicated contained cocaine. We reach this conclusion in light of the field test's inherent limitations; the lack of other direct or circumstantial evidence that the inmate possessed drugs; the department's regulation compelling routine confirmatory tests of drug specimens; and the absence of any reasoned explanation for the Department's refusal to subject the seized powder to a confirmatory laboratory test.

         I.

         During a search of inmate Kevin Blanchard's property, a corrections officer discovered a white powdery substance in a folded or rolled piece of paper that was tucked in a paperback book. According to a special custody report, an investigator "field tested the substance which tested positive for cocaine." The test kit used was manufactured by Sirchie and labeled "07 Scott Reagent (Modified) A test for cocaine, HCl & cocaine base." A senior investigator separately wrote that "[t]he CDS is being sent to the New Jersey State Police Forensic Laboratory for conformation [sic]," but that evidently did not happen. The record contains no results or other indication of a confirmatory test.

         On the basis of the field test, Blanchard was charged with asterisk offense *.203, "possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff." See N.J.A.C. 10A:4-5.1(o)(1). Prison officials found no other evidence of drug possession. A strip search of Blanchard conducted immediately after officials seized the powder uncovered no contraband. Urine specimens he produced the day before and shortly after the seizure also yielded negative results. Officials found no contraband upon searching Blanchard's cell.

         The hearing officer found the violation based on the field test results. In his administrative appeal, Blanchard insisted the field test result was a false positive. He wrote that the white powder was a generic coffee sweetener. A fellow inmate gave him the sweetener, which he poured into a cup that had remnants of Tang powder. He retained the sweetener for future use. He explained that the sweetener was sold at the canteen, but he could not easily afford it, as he earned $17 a month and received no financial help from others. Blanchard said he asked the hearing officer to send the powder to the State Police Laboratory, but the request was denied.[1]

         The Assistant Superintendent affirmed the hearing officer's decision that Blanchard violated *.203 and upheld the recommended sanction. Blanchard lost 120 days of commutation time and thirty days of recreation privileges; and received 120 days of administrative segregation. The Assistant Superintendent cited only the field test for evidential support, and did not address the lack of confirmatory laboratory test results. This appeal followed.

         In his pro se brief, Blanchard contends the Assistant Superintendent's finding lacked substantial credible evidence, because the Department had not established the field test's reliability. He contends the Department adopted a policy of laboratory testing urine specimens and seized narcotics because of the field test's lack of reliability. He argues that the refusal to subject the powder to confirmatory testing in his case violated departmental policy; and denied him his due process right to present exculpatory evidence. He also contends the Assistant Superintendent's decision was arbitrary, capricious and unreasonable.

         The Department responds that the policy of confirmatory testing applies only to urine specimen testing, and Blanchard presented only "self-serving testimony" that the field test was unreliable. The Department argues that the field test constituted substantial credible evidence of the violation.

         II.

         A.

         Our standard of review is well-settled. We will disturb an agency's adjudicatory decision only upon a finding that the decision is "arbitrary, capricious or unreasonable," or is unsupported "by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In determining whether an agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:

(1) [W]hether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a ...

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