Attacking the chemical test results is a critical to a successful DUI defense, and is another example of why you should use a competent and experienced DUI attorney like Mark Blair.
Alcohol concentrates in the body where there are high amounts of water. Because blood is approximately 80% water, alcohol concentrates in blood far more than in other tissue, like fat, bones or cartilage. Alcohol is found in many other bodily fluids, such as urine, tears, and perspiration. Alcohol levels would be higher in other fluids, because they have greater amounts of water compared to blood.
Alcohol content in blood is best measured in whole blood. Caution should be used in blood tests performed by hospitals on DUI drivers following an accident and hospitalization. Hospitals may test a different form of blood (ie serum), because the testing procedures are easier than for whole blood. If such testing occurs, the result may be higher than if whole blood was tested. If serum was tested rather than whole blood, a conversion ratio should be used to get a whole blood reading.
Blood tests are more direct measurements for alcohol than breath or urine. As such, many persons perceive blood tests to be more accurate. Whatever one’s perspective, however, blood tests are certainly not infallible and can be attacked.
A fundamental attack on blood results is with fermentation. Blood is organic, and as such, can decompose. In its decomposition, it can create its own alcohol through fermentation. Each vial into which a blood sample is inserted should contain two compounds to prevent false “high” reads in blood tests.
The first of these two compounds is sodium fluoride, a whitish compound whose presence is to delay decomposition. The vial must contain at least a minimum amount of sodium fluoride, typically deemed by experts to be 1%. If the vial has less, then the DUI defense should argue that the blood sample fermented, and created as a byproduct of its fermentation, alcohol. Crime labs typically do not test for the presence of sodium fluoride when blood alcohol is analyzed. Independent testing by laboratories recommended by DUI attorneys is one way of establishing the amount of sodium fluoride in each vial.
In addition, each vial should contain an appropriate amount of anticoagulant. If a vial is deficient in anticoagulant, the blood, or a portion of it, may clot. The remaining portion of liquid may have a higher water content, and thus lead to a higher (and false) blood level alcohol reading.
Furthermore, the blood draw must be performed by a qualified person. In addition, the person drawing blood must clean the site with a non alcohol related swab. If alcohol is used to clean the area of the skin, the needle will pick up alcohol as it passes through the injection site. Such a technique creates a false “high” reading. The blood draw should be from a vein rather than an artery. Studies have shown that blood results from an arterial draw can be up to 40% higher than those from veins. After blood is drawn, the technician must mix the blood with the sodium fluoride and anticoagulant so that the two compounds are equally distributed throughout the sample. Each sample should be inverted vigorously multiple times so that this distribution occurs. Once the samples are drawn, the prosecution must also establish a “chain of custody”, a paper trail documenting each person who handled the samples and what each person handling the samples did with them. Moreover, once the samples reach their destinations, police storage and ultimately the crime lab, they must be properly refrigerated. Such cooling delays any fermentation.
The testing procedures themselves can be questioned. One procedure is gas chromatography, which involves separating the various components of a blood sample and measuring the time it takes each to emerge from this separation process (called “retention” in technical terms). Once ethanol (the active compound of alcohol) emerges from columns, “eludes” in technical terms, it passes across a flame. The alcohol, when coming into contact with the flame, causes the flame to burn more brightly. This burst of energy is what is actually measured via a software program and converted into blood level alcohol. If the tubes (columns) of the gas chromatograph had contaminants in it that resembled ethanol, the results can become questionable. The lab should have quality control procedures in place such that it employs internal standards, a known compound, that is injected into the separation mechanism that is used as a test indicator as to whether or not the separation process is properly working.
Finally, even if the blood tests seemingly were done properly, the results at the time of the test are not the level at the time of driving. That is the essence of a DUI defense: but for the passage of time, through the absorption of alcohol in the body, the level rose to the level that was the test result.
As in breath tests, your DUI defense should include a thorough cross examination of the so called state expert, in particular concerning the following areas:
1. The expert’s bias, meaning that the expert has always worked for the state and never for the defense, and that the expert is paid by the state
2. The expert’s lack of personal knowledge of any of the facts involved in the DUI. The expert did not observe the driver drinking before driving and thus does not know the driver’s alcohol consumption. The expert did not witness any driving, did not see the driver or hear the driver on the date of the DUI, and did not observe the field sobriety tests. In addition, the expert is not trained in the administration of field sobriety tests. Equally importantly, the expert has no personal knowledge of how the blood draw was performed, or whether it was performed correctly. The expert lacks personal knowledge as to whether the vials were inverted the proper amount of times to distribute any compounds that were supposed to be present in the vials before the blood was introduced.
3. The expert does not have any personal knowledge about how the blood was drawn, nor handled from the time of it being drawn to the time that it was tested.
4. The expert cannot rule out fermentation as a possible source of alcohol, because the expert never determined what amount, if any, of sodium fluoride was present in the samples.