Before I start to go over some of the basic issues in exposing blood tests in Pennsylvania alcohol DUI cases, I want to give you a brief summary of my journey to get to where I am.
I became a lawyer in 2000. My father was a defense lawyer. He represented a lot of people for DUI cases. He was a great lawyer and made a lot of great legal arguments and did well for his clients, but he did not challenge blood test results. Like most lawyers, he was told that they could not be beaten. Unfortunately, most lawyers still think like that. So from 2000 to 2007 I accepted that and did all I could for my clients. Then in 2007, I watched a show about measurement on PBS. That show discussed different measurement instruments and they always kept on talking about the margin of error. Well, the show was scientific, so they called it uncertainty which is the proper term for margin of error. They showed one machine that used lasers to measure things and it had a margin of error of +/- .002 inches. Two-thousandths of an inch. I sat there thinking well if this million-dollar laser machine has a margin of error, well what do blood tests have?
So I requested lab documents and called manufacturers of the machines. Most of the machines had a margin of error of .006 to .008 for the different machines I encountered across the state. These were hospital blood analyzers. For more a more in-depth discussion on just how bad hospital blood tests are read my blog (Why Hospital Blood Tests Are Horrible) (hyperlink) So when I had cases whose blood test results were close to one of the threshold levels (.08, .1, .16) I asked for a tier reduction. If the level was close to .08 I would ask for a dismissal. At first prosecutors and judges were like, “What are you talking about?” So I explained it to them. Some listened and gave me what I asked for. Some did not. The ones that didn’t I took to trial, questioned the lab analyst who explained uncertainty. I won and won and won and then Judges and prosecutors no longer argued with me on that issue. Eventually all of the counties I went to started adopting their lab’s margin of error and gave that benefit to all defendants. Not just my clients. However, I knew there had to be other issues so I went looking.
In 2009 I found my answers. When I joined the National College for DUI Defense (NCDD) I started talking with lawyers from across the country. I started attending seminars, and reading e-mails on the list serve. That is when the flood gates of just how bad some of these test results can be. One type of blood testing machine is called gas chromatography. The government refers to this method of testing as the gold standard. Well, all is not golden. Now the testing method is very good, but humans run the machines. The machines also have some inherent accuracy built into them.
The first place to look for errors is in the blood sample. How was it drawn? Where was it stored? What condition was it in when it arrived at the lab? Was it refrigerated? Many other issues can cause problems at this stage. I once had a client charged with DUI in Tioga County whose blood test results were .313, It was a second offense so the stakes were high if convicted. I retained an expert and I obtained the lab documents for her test. In reviewing the documents, it was obvious that the methanol levels were very high. Methanol can be a byproduct of fermentation. When blood ferments in the blood test tube the fermentation creates alcohol. The alcohol created by fermentation can’t be differentiated from alcohol from drinking. Therefore, fermentation creates a falsely elevated alcohol reading. In the end that case resolved with a general impairment plea because of the evidence of fermentation that my expert and I exposed.
Another problem that can occur with the blood before it is tested is clotting in the tube. I had a DUI case in Indiana County where the blood was a .258. In reviewing the documents from the lab it looked like there were no problems in the testing. However, on the bottom right hand corner of the lab analysts check sheet the analyst noted that he had to sonicate the blood tube. He had to do that because the blood had clotted. When blood clots it will falsely elevate the blood test results. That case also resolved in a plea to general impairment saving my client 85 days in jail and an additional 4.5 years of supervision.
Both of those cases involved high blood alcohol contents to which most prosecutors and defense lawyers think that the defendant must be guilty of having a high BAC. Thee data showed this was not true. Then there can be issues with the testing itself. One common issue with gas chromatographic testing is when alcohol from a previous sample stays in the testing system and comes out in other samples. This is called carryover. When carryover happens the alcohol content will be falsely elevated. When carryover happens it is very hard to tell it happened. One way to catch this issue is by looking at blanks in the testing run. Blanks are put in test batches to catch carryover. Since there is nothing in the blank, when alcohol appears that shows carryover. I have found this issue in multiple cases ad used this evidence to obtain good outcomes in trials and in negotiations.
There are many things that need to be looked into when defending Pennsylvania DUI cases. Since the blood test is one of the most crucial pieces of evidence in a DUI case it is the first place that should be scrutinized thoroughly. As my examples of cases stated earlier shows, blood test cases can be defended.