|
How can you possible win a DWI case
in Texas if you gave a blood sample and your
blood test result was a 0.08 g/dL or higher?
The Law Offices of Michael Lowe can fight back.
There are many ways that Mr. Lowe can discredit
a “bad blood test.” The following
is intended to be a summary of defenses to
blood test results Texas DWI cases.
DEFENSES TO BLOOD SAMPLES
Typically, a sample of blood
is drawn and tested for alcohol content in two
DWI situations: when requested by law enforcement
officers in connection with a suspected drunk
driving case, or at the request of hospital medical
personnel in connection with diagnosis and treatment
of a patient who has been brought in after an
accident. In the former situation, the blood
is sometimes referred to as "legal blood" and
whole blood is typically collected; in the latter,
it is sometimes called "medical blood" and is
typically serum. The methods used to draw, prepare,
track, and test legal blood
often differ from those used for medical blood.
A strong argument exists that serum blood samples,
due to the problems with accuracy, show lack
of trustworthiness as forensic evidence of the
actual blood alcohol reading of a patient. Firstly
every individual has a different serum or whole-blood
ratio that varies from 1.90 to 1.35. Furthermore,
an arbitrary or average conversion ratio does
not give an accurate result for a particular
individual.
Second, when medical staffers
draw "legal" blood, they follow procedures promulgated
specifically for blood alcohol testing. Often,
state regulations or statutes will specify a
particular type of "kit" that has alcohol-free
swabs in the package, as well as a series of
labels, seals, and "packing" forms to assure
that all necessary steps are taken to obtain
a sample that can be admitted in evidence.
In order to challenge the admissibility
of a "legal" blood sample into evidence, the
attorney must question the medical personnel
involved to determine whether blood was draw
and tested in compliance with state regulations.
The defense attorney should also determine whether
the regulations that were designed to ensure
accuracy and reliability were followed. These
regulations often specify that the vials shall
contain anticoagulant and a preservative and
be "stopped" or capped (or sealed) to prevent
loss of contents through evaporation. These tamper-proof
seals also will reveal any tampering with or
compromise of the vials. Also, some jurisdictions
mandate that all vials be marked with certain
essential tracking information. Regulations or
statutes may even specify the method of cleansing
the subject=s skin before blood is drawn (i.e.,
with soap or Betadine, not alcohol).
Blood vials that are to be used for legal samples
generally contain an anticoagulant and a preservative,
and generally have a gray-colored septum (indicating
that vials have these two chemicals inside the
vacuum tube). Other vials, used for various medical
or laboratory purposes, may have red, yellow,
purple or other colors signifying whether the
vial contains certain chemicals.
Vials used in collecting medical
blood samples may lack anticoagulant and preservatives.
These vials generally have red septums, meaning
that the blood collected is pure blood without
anticoagulant or preservative added to the vial.
A red-stoppered vial will become clotted (due
to lack of anticoagulant) and will "deteriorate"
much more quickly than those with gray stoppers,
due to lack of a preservative.
The attorney should ascertain the condition
of the tube used, because an improperly capped
or filled tube may result in an incorrect BAC
value. If the hospital (or police) sends blood
to an outside private lab or the state crime
laboratory for testing, counsel should check
to see if the blood was continuously refrigerated,
because the red-stoppered vials used by hospitals
typically lack preservatives, and the alcohol
content in the sample might actually increase
if left at room temperature for an extended period
of time. Jurors are shocked to learn that normal
blood (with no alcohol in it at all) that decomposes
actually creates ethyl alcohol as a by-product
of the decomposition.
Through use of expert witnesses,
the party opposing the admission of blood test
evidence should attempt to bring out evidence
of the unreliability of the blood test results
in the current case. First and foremost, emphasize
that every individual has a different serum or
whole-blood ratio and the use of an arbitrary
or average conversion ratio does not give accurate
results for a particular individual. If an incorrect
color cap was used on a vial, or if an anticoagulant
or preservative was omitted, this may offer "reasonable
doubt" about the integrity of the blood test
result, particularly if gaps exist in the chain
of custody.
Almost all blood collection vials have an expiration
date. Manufacturers claim that this is only relevant
to the warranty on the vacuum within the vial.
Jurors may see the issue differently, if defense
counsel analogizes to milk or bread sold after
the expiration date.
IMPORTANT QUESTIONS
- Who requested this sample and for what purpose?
- Did the suspect actually "consent" to the
test?
- What type of vial was the specimen collected
in?
- Was the vial properly capped, and with what
color cap?
- Did the vial have a preservative
in it?
- Did the vial have an anticoagulant
in it?
CONTAMINATION
A problem might occur with the contamination
of the specimen. For example, the antiseptic
used to cleanse the area may contain alcohol
in amounts sufficient to produce measurable amounts
of alcohol on a gas chromatograph. In emergency
room settings, it is routine to use an alcohol-based
antiseptic to clean the skin. It may also be
routine to use Vacutainers and vials that are
not in compliance with state regulations and
statutes.
Any antiseptic that was provided in blood alcohol
collection kits (or otherwise used to draw blood
specimens) should be analyzed by an independent
laboratory to determine whether the antiseptic
contains alcohol in sufficient amounts to produce
measurable amounts of alcohol. While many jurisdictions
have regulations and procedures governing blood
testing, and despite the fact that most specifically
prohibit using any alcohol solution as a skin
cleanser , some of the swabs that are used in
blood collection kits contain a substance known
as benzalkonium chloride as an active ingredient.
This compound contains approximately 2 percent
or more ethanol concentration.
Ethanol in measurable quantities
also has been found in three types of disinfectants:
Clinipad7 brand antiseptic towelette, PDI7 brand
towelette and Triad 7 brand towelettes. Swabbing
the skin with ethanol before taking a blood sample
for measuring blood ethanol concentration may
increase the apparent blood ethanol level by
up to 0.018 percent (g/dL), even if the skin
is allowed to dry before the sample is taken.
When a "wet" site is used, and a "wet" swab is
held over the site to withdraw the needle (which
has a vacuum to draw in the blood from the suspect=s
vein), the potential additive effect is much
greater.
Defense attorneys frequently succeed in convincing
a jury that a percent of alcohol that was found
in the blood sample was added to the test result
because the person who withdrew the blood improperly
used alcohol on the skin. As sample cross-examination
could go as follows :
SAMPLE CROSS-EXAMINATION:
Q. Doctor, suppose just one drop of alcohol
was added to 100 drops of normal blood, what
percentage of alcohol would you find?
A. If the drop of alcohol were the same size
as a drop of blood, I would expect to find 1.0
percent by volume, of 0.80 percent by weight.
Q. What state of intoxication would you expect
to find with 0.80 percent alcohol in the blood?
A. That person would be dead.
Q. Now, if only half a drop of alcohol was added
to the 100-drop sample, what would you expect
to find in the blood test?
A. Approximately 0.40 percent by weight.
Q. And what stage of intoxication would that
percent correspond?
A. Marked intoxication, probably unconsciousness.
Q. Now suppose that one one-tenth drop of alcohol
got into the 100 drops of blood, how would that
affect the blood test?
A. The reading would be approximately 0.08 percent.
The attorney then successfully argued to the
jury that a mere fraction of a drop of extraneous
alcohol that had been applied to the skin had
been responsible for a possible miscarriage of
justice, and his client was acquitted.
The blood taken from a DUI suspect involved
in an accident may also be contaminated if there
was an intravenous fluid being administered at
the time the blood was drawn. The specimen may
be inaccurate either because of the increased
volume of fluid in the circulatory system changes
the blood alcohol level (lowers it) or the blood
may have been drawn from the same extremity that
the IV is in and therefore the sample is contaminated
with the intravenous fluids. If there was injury
to the defendant, and the paramedics responded,
it is very likely that an IV was started en route
to the emergency room.
Contamination can also occur
if the equipment used to draw the blood is not
sterile. This may not pose as big a problem today
as it did years ago before pre-wrapped disposable
needles became the standard. However, in some
emergency room settings, nurse "set up" their
trays and carts anticipating an emergency. That
is, needles have been removed from the package
and placed on the table along with other routinely
used items so that these items will be readily
available when an emergency comes in. If this
is the case, a needle of syringe may have been
left exposed for an undetermined amount of time
and is no longer sterile. Check your state regulations
concerning the propriety of using such items,
in a non-sterile situation.
PLASMA OR SERUM BLOOD OR WHOLE BLOOD
To challenge a serum blood alcohol
result, attorneys must know the differences between
whole and serum (or plasma) blood readings. The
admissibility of a blood alcohol test as evidence
at trial will depend on the specific language
of the relevant state statute and on the ability
of the attorney opposing the test result to identify
all the ways in which it is unreliable. In some
states (i.e., Georgia), no published regulation
controls how serum or plasma blood readings will
be "adjusted" to reflect approximate whole blood
alcohol levels.
A potential source of error involves reporting
plasma or serum values that are assumed to be
whole blood values. The defense attorney should
try to discover whether whole blood, serum or
plasma was analyzed. Some studies indicate that
plasma and serum alcohol levels are as much as
16 to 21 percent higher than whole blood levels.
After the blood is drawn, it
is often centrifuged (spun in a mechanical device)
and separated into its "solid" and "liquid" components
for analysis. What is being analyzed by the toxicology
lab may not be whole blood, but serum or plasma
and, therefore, an analysis of plasma or serum
will produce a higher percentage of alcohol than
would actually be present in whole blood. Hence,
the results must be mathematically "adjusted"
or truncated to show the approximate true BAC.
Some police departments and state forensic laboratories
analyze whole blood. Many hospitals and clinical
laboratories routinelyanalyze only serum. Evidence
of a client=s blood alcohol level indicating
a result of 0.10 percent (g/dL) BAC may, in fact,
reflect a true BAC of 0.08 to 0.09 g/dL if serum
was used.
In addition to the distorted reading, the testing
may be challenged on the grounds that a serum
alcohol concentration test is not a blood test
for the purposes of the statute. Therefore, carefully
review the chemical sobriety test statutes and
definition sections of the criminal code.
VARIATION
IN BLOOD TESTING
Due to variations in body chemistry plus the
chemical changes that the blood undergoes while
in the glass ampoules, the specimens may become
unrepresentative of the person accused. The difference
is due to what occurs in vivo (those which occur
inside the body) and in vitro (those which occur
while the blood is in glass ampoules). In vivo
changes occur because of normal fluctuations
in the blood from moment to moment after the
blood=s ability to hold and release alcohol.
It is not an uncommon practice to let the blood
specimen sit for days before analyzing it due
to delay in getting it to the laboratory, or
due to simple neglect. Because the carousels
on most gas chromatographs hold fifty to 100
vials, many laboratories wait until a full carousel
can be obtained before running the tests. Defense
counsel may be surprised to learn how long a
sample was not refrigerated.
Because blood is an
organic material, it will decompose as a result
of enzyme activity and bacterial action. One
of the results of this decomposition is that
ethyl alcohol is created from the breakdown
of the blood. This is sometimes referred to as
"endogenous" alcohol production. In a sample
originally containing no alcohol, decomposition
can cause an alcohol content reading of 0.25
g/dL or even higher depending on the stage of
decay.
Usually the specimen will be refrigerated
to prevent degradation of the sample. However,
refrigeration will only slow down the decomposition
process, not prevent it. To stop this decaying
of the blood and the resultant formation of
alcohol, a preservative such as sodium fluoride
solution should be added. Blood without sodium
fluoride is reliable at normal room temperatures
for about two days. Without sodium fluoride,
the BAC may rise to a maximum concentration in
about fifteen days and then fall.
Failure to add sodium fluoride or potassium
oxalate (and this is not uncommon) should provide
counsel with sufficient ammunition to discredit
the test results, if not prevent their admission
into evidence. In a criminal trial, raising reasonable
doubt only requires that a sufficient factual
basis for questioning the reliability and accuracy
of the test results be raised by the defense.
MEDICATION AND DISEASE
Certain medications and the
"disease process" can affect the level of BAC.
Any medication that alters the rate of metabolism
can affect blood alcohol levels. For example,
an article in the Canadian Society of Forensic
Science Journal has reported that women taking
oral contraceptives appear to eliminate ethanol
significantly faster than women not taking oral
contraceptives. Also, Candida albicans is a yeast-based
medical problem that can cause alcohol to be
created inside the vial, after being drawn from
the subject=s arm.
The human body eliminates the
amount of alcohol by oxidation of the "poison"
(alcohol) in the liver. Like any other foreign
compound, alcohol is broken down by enzymes in
the liver and gradually reduced until 100 percent
is eliminated. Therefore, any disease process
affecting the liver, such as hepatitis, will
impair results. Also, any condition that causes
"extracellular" water retention (heart disease
or many forms of high blood pressure or diabetes,
for example) will alter results. Alcohol is "water
miscible" meaning that it mixes easily with water.
Alcohol also "migrates" to any water source,
whether in the human body or in a test tube.
Also, many women retain water on or around the
time of menses. Therefore, defense counsel in
the investigation of the case should obtain this
information.
Article: Expunge
Records in Texas
News: Criminal Law News
|
