NEEDLES, NEEDLES, NEEDLES
Blood test issues
In matters of style, swim with the current;
in matters of principle, stand like a rock.
Texas has approved two separate chemical tests to determine a person’s alcohol level. The first approved test is a breath chemical test analyzed by the Intoxilyzer 5000. The Intoxilyzer is discussed in detail in Chapter 14, “GIZMO, MACHINE, or INSTRUMENT?” The second approved method is blood testing.
Most states, including Texas have Implied Consent Laws. In layman’s terms, if you are driving a car on a public roadway it is assumed you have given consent to a chemical test if you are suspected of driving under the influence of alcohol or other intoxicating substance. As the driver, you have the right to refuse the test, but refusing the test can result in an administrative suspension of your driving privileges. This suspension can be challenged in the same manner as a suspension for a chemical test result showing an over the legal limit of .08 breath/blood alcohol level for persons over 21 and any detectable amount of breath/blood alcohol level for persons under the age of 21.
The choice of whether a breath chemical test on an Intoxilyzer or a blood test is administered remains with the arresting officer. However, the officer must follow certain guidelines established by Texas Statutes. First, in order to request a test, the arresting officer must have a valid arrest. The officer must also give you the statutory warning, found on the DIC 24, when he requests for your breath or blood. In this warning, he is required to tell you that you can refuse to give a sample of your breath and/or blood.
In Texas, if the driver is involved in an accident where death or serious bodily injury results, any Felony DWI or a Misdemeanor with hospital treatment or occurs in a county with a “No Refusal” policy, the police officer can require a forced blood draw. If the driver is unconscious and unable to give consent to a chemical test, the driver’s consent is considered implied, and the police officer can order a blood test to be administered. If the driver simply refuses, the police officer can obtain a search warrant for the driver’s blood. Under circumstances in which the driver is unable to revoke his implied consent, the law does not require an injury or death for the officer to proceed with a blood test.
If a blood test is required or consented to, the officer will use a blood kit to obtain the blood. This is a standard blood withdrawal kit that is completely self-contained. The kit is provided to the medical personnel or the police officer withdrawing the blood samples. Contained in the kit are two vaccutainers (vials) that contain an anticoagulant and a preservative.
The officer can only direct a physician, qualified technician, chemist, registered professional nurse or licensed vocational nurse to withdraw the blood samples in the officer’s presence. The person withdrawing the blood will use all two vials to obtain two separate blood samples. After the blood samples are taken, it is required that the vials be inverted a number of times so the blood samples will be thoroughly mixed with the preservative and the anticoagulant.
Most “No Refusal” programs have jail nurses on standby to draw blood. Some Texas police department are training the arresting officers to become certified to draw blood.
The two blood samples will be given to the police officer who will seal and repackage the vials into the blood kit. The officer will seal the package and will take custody of the sealed kit for delivery to the proper laboratory for analysis. The officer is responsible for preserving the samples until delivered to the state approved forensic lab for testing. The officer must refrigerate the blood kit if the officer is not able to deliver the blood kit to the lab within 24 hours. This is important because the blood can ferment if left exposed to heat for too long. This is especially important in hot Texas summers.
If fermentation occurs, it will cause an increased blood alcohol level in the blood sample. Similarly, if the blood sample has been contaminated, an increased blood alcohol level can result. If the anticoagulant and/or preservative in the vial are defective or not properly mixed, an increased blood level can result. These are just three examples of how the blood alcohol level reported could be rendered incorrect and falsely increased.
Most laboratories can process the blood sample. The Department of Public Safety has thirteen labs throughout Texas to process blood samples and almost all Medical Examiners’ Offices can as well. Although hospitals can draw blood and determine blood alcohol content, their results are inaccurate.
If a police officer takes a specimen from the driver, the driver can have an independent laboratory conduct a separate independent analysis. The driver is not allowed to just show up and pick up the sample from the lab; rather, an independent test must be requested no later than two hours after a specimen has been taken. However, this doesn’t mean the police officer or anyone else has to fulfill your request.
There is no procedure in place to allow an arrested person to have an independent blood draw done. If the arresting agency or jail does not allow your doctor or phlebotomist to enter the jail or take you to them there is no sanction or penalty provision. In other words you don’t get to have your own blood test done.
This independent test allows the opportunity to double-check and confirm the work of the State’s laboratory. However, if there is an increased blood level due to human error in procedure, the error quite possibly affected all the samples. For example, if the officer left the blood kit containing the vials of blood in his trunk for three days in July before transporting it to the State’s lab, fermentation could occur in both vials causing falsely increased blood alcohol levels.
Most blood results which go to trial are tested on a gas chromatographer. These machines are expensive and the test sequence to determine the blood alcohol level is time consuming. Due to the expense and time of using these machines, hospitals do not use the gas chromatography method to analyze for blood analysis. The hospital’s concern when taking a blood sample is to analyze for alcohol or drugs and to determine if these substances are in the patient’s system. The hospitals want to know this information before administering any drugs that may react adversely with possible intoxicants already in the patient’s blood.
The hospital’s concern is speed and not necessarily accuracy of alcohol or drug levels. The analytical methods used by the hospitals routinely render alcohol or drug levels at 20-30% higher than the more accurate score rendered by the gas chromatography method. There is also a much higher possibility of contamination because steps to prevent possible contamination are not used. With these increased risks of false reporting, it is not surprising that these blood alcohol reports do not meet the basic scientific requirements to be admissible in court.
A blood test result over the legal limit, even a high result, is not the nail in the coffin. Skilled attorneys can successfully challenge the test when they understand how gas chromatography works, have visited forensic labs, have researched, and understand the standard operating procedure and legal requirements for withdrawing and analyzing blood samples. If the challenge is successful, the blood result will not be admitted and the jury will never know a blood sample was withdrawn. A suppression of the blood test can result from many different challenges, including but not limited to, issues with chain of custody, fermentation, expired equipment, expired certifications, and faulty equipment or maintenance.