Georgia DUI Blog

     Whole blood is comprised of red and white blood cells, platelets and other clotting and cellular material, dissolved salts, amino acids, fats, and water.  Those solid materials are frequently referred to as “hematocrit.”  The hematocrit level is, therefore, the percentage of the total volume of blood taken up by the solid particles.  Determining a person’s hematocrit level at the time the blood is drawn is the only way to know what the correct conversion ratio is for the person who was tested at the time of the blood alcohol test.

     The average hematocrit for men is 47% with a “normal” range between 42% and 52%.  The average for women is 42% with a range from 37% to 47%.  Studies have shown, however, that over time an individual’s hematocrit can vary by up to 15%. 

     In general, the higher the hematocrit level, the higher the reported blood alcohol concentration in a serum or plasma test, which is the kind most frequently encountered in a hospital setting.  The higher someone’s hematocrit level, the less liquid we can expect to find in their blood.  Since the alcohol will migrate or remain with the liquid portion of the blood, a person with a higher hematocrit will have a higher blood alcohol test result when that blood alcohol test is a plasma or serum test performed in a hospital. 

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

The following news article was a story that I found on Yahoo.com on Sept. 13, 2009.  I predict that in the near future we will begin to see police officers trained to draw blood from DUI suspects that refuse to take chemical tests of their breath after being arrested for DUI.  Currently, if someone arrested for DUI refuses to take the test, they lose their license for one year with no work permit or provisional license of any kind.  Is that not enough?  Are we really ready to start straping down our citizens, forcing needles into their arms against their will and drawing their blood?  For what reason would we do this?  Their are already provisions in place where the police can go get search warrants from a Judge and have the blood drawn at a hospital.  This is routinely done on cases involving serious injuries and death.  So why do we need to do this for the guy that gets stopped for his tag light being out and then refuses testing?  Is it worth the risk to the police?  What risks are presented to the driver?  Here are a few that I can think of off the top of my head:

1. Injury
2. Infection
3. Lawsuits on the police
4. Battery
5. Officer Safety
6. Spread of disease
7. Fear of needles

One possible good result of this practice is that the Judges may start taking motions attacking a police officer’s probable cause a little more seriously.  It is becoming almost a rubber stamp with the courts deferring to the officer’s decision on the side of the road.

I think this is a can of worms that Georgia should be reluctant to open.  We have sufficient procedures in place to get a test when it is needed.  This is just going to get many drivers hurt and many officers sued.  Although, the medical malpractice lawyers are probably salivating at the idea of poorly trained officers sticking needles in folks.

BOISE, Idaho – When police officer Darryll Dowell is on patrol in the southwestern Idaho city of Nampa, he’ll pull up at a stoplight and usually start casing the vehicle. Nowadays, his eyes will also focus on the driver’s arms, as he tries to search for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’” Dowell said.

It’s all part of training he and a select cadre of officers in Idaho and Texas have received in recent months to draw blood from those suspected of drunken or drugged driving. The federal program’s aim is to determine if blood draws by cops can be an effective tool against drunk drivers and aid in their prosecution.

If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage police nationwide to undergo similar training.

For years, defense attorneys in Idaho advised clients to always refuse breath tests, Ada County Deputy Prosecutor Christine Starr said. When the state toughened the penalties for refusing the tests a few years ago, the problem lessened, but it’s still the main reason that drunk driving cases go to trial in the Boise region, Starr said.

Idaho had a 20 percent breath test refusal rate in 2005, compared with 22 percent nationally, according to an NHTSA study.

Starr hopes the new system will cut down on the number of drunken driving trials. Officers can’t hold down a suspect and force them to breath into a tube, she noted, but they can forcefully take blood — a practice that’s been upheld by Idaho’s Supreme Court and the U.S. Supreme Court.

The nation’s highest court ruled in 1966 that police could have blood tests forcibly done on a drunk driving suspect without a warrant, as long as the draw was based on a reasonable suspicion that a suspect was intoxicated, that it was done after an arrest and carried out in a medically approved manner.

The practice of cops drawing blood, implemented first in 1995 in Arizona, has also raised concerns about safety and the credibility of the evidence.

“I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle,” said Steve Oberman, chair of the National Association of Criminal Defense Lawyers’ DUI Committee.

The officer phlebotomists are generally trained under the same program as their state’s hospital or clinical phlebotomists, but they do it under a highly compressed schedule, and some of the curriculum is cut.

That’s because officers don’t need to know how to draw blood from a foot or other difficult sites, or from an infant or medically fragile patient, said Nicole Watson, the College of Western Idaho phlebotomy instructor teaching the Idaho officers.

Instead, they are trained on the elbow crease, the forearm and the back of the hand. If none are accessible, they’ll take the suspect to the hospital for testing.

In a nondescript Boise office building where the Nampa officers were trained, Dowell scanned his subject and prepared to draw blood. Chase Abston, an officer taking his turn playing a suspect, recoiled a bit, pressing his back deeper into the gray pleather chair.

Dowell slid a fine-gauge needle into the back of Abston’s hand. Abston, who had been holding his breath, slowly exhaled as his blood began to flow.

All the officers seemed like they’d be more comfortable if their colleagues were wielding sidearms instead of syringes. But halfway through the second day of training, with about 10 venipunctures each under their belts, they relaxed enough to trade barbs alongside needle jabs.

They’re making quick progress, Watson said. Their training will be complete after they have logged 75 successful blood draws.

Once they’re back on patrol, they will draw blood of any suspected drunk driver who refuses a breath test. They’ll use force if they need to, such as getting help from another officer to pin down a suspect and potentially strap them down, Watson said.

Though most legal experts agree blood tests measure blood alcohol more accurately than breath tests, Oberman said the tests can be fraught with problems, too.

Vials can be mixed up, preservative levels in the tubes used to collect the blood can be off, or the blood can be stored improperly, causing it to ferment and boosting the alcohol content.

Oberman said law enforcement agencies should also be concerned “about possible malpractice cases over somebody who was not properly trained.”

Alan Haywood, Arizona’s law enforcement phlebotomy coordinator who is directing the training programs in Idaho and Texas, said officers are exposed to some extra on-the-job risk if they draw blood, but that any concern is mitigated by good training and safe practices.

“If we can’t get the evidence safely, we’re not going to endanger the officers or the public to collect that evidence,” he said.

The Phoenix Police Department only uses blood tests for impaired driving cases. Detective Kemp Layden, who oversees drug recognition, phlebotomy and field sobriety, said the city now has about 120 officers certified to draw blood. Typically, a suspect is brought to a precinct or mobile booking van for the blood draw.

Under the state’s implied consent law, drivers who refuse to voluntarily submit to the test lose their license for a year, so most comply. For the approximately 5 percent who refuse, the officer obtains a search warrant from an on-call judge and the suspect can be restrained if needed to obtain a sample, Layden said.

Between 300 to 400 blood tests are done in an average month in the nation’s fifth-largest city.

During holiday months that number can rise to 500, said Layden, who reviews each case to make sure legal procedures were followed.

Outside of Arizona, some law enforcement agencies in Utah have officer phlebotomists, and police in Dalworthington Gardens, Texas are cross-trained as paramedics and have been drawing blood for about three years. The NHTSA is in talks with Houston, Texas about doing the phlebotomy training there, he said.

They’re all attracted by Arizona’s anecdotal evidence.

“What we found was that the refusal rates of chemical testing lowered significantly since this program began,” Haywood said. “Arizona we had about a 20 percent refusal rate in 1995, and today we see about an 8 to 9 percent refusal rate.”

     Linearity is determined by testing known samples of various concentrations, which should ensure that the tests of other samples of unknown concentrations should yield accurate results.  Linearity enables an analyst to have confidence in the results of a particular test based on the results of other tests.  For example, if a known alcohol concentration of .10 is determined to be .10 and a known concentration of .20 is determined to be .20, this greatly increases the likelihood that a reading of .15 is accurate.

     In most cases the linearity of a gas chromatograph is checked at the beginning of each set of tests (a “run”) by injecting calibrators of varying amounts in the GC.  By plotting the amount of each calibrator versus their relative instrument responses, a linear relationship may be established.  The concept of linearity is associated with the “range” of the instrument, which is the interval between the highest and lowest concentrations that have been determined to be not only linear but accurate and precise.  Accuracy means that the testing device has correctly determined the true result, while precision is the ability of the instrument to replicate the test result.

     It is generally agreed that good laboratory practice requires the use of six calibrators spanning the range of 50 to 150% of the expected range of results the analyst expects to encounter in typical cases.   In other words, the concentration of the calibrators should be such that they bracket the anticipated concentration of the specimen.   The Laboratory Guidelines of the Society of Forensic Toxicologists recommends “at least three calibrators.”  If any result exceeds the range, the substance being tested should be diluted and retested.  If the concentration of the specimen is less than that of the lowest calibrator, in most cases an additional calibrator below the expected range of the analyte in the sample should be set up. 

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Melendez-Diaz v. Massachusetts was decided today by the United States Supreme Court.  This much anticipated opinion clears up the debate about whether certificates prepared by a lab technician or similar person are admissible against a defendant in trial without the witness being present to actually testify about what the certificate says.It is very clear that lab reports are produced in anticipation of trial and they are in fact “testimonial” as defined by Crawford v. Washington and Davis v. Alaska.  Those cases hold that the defendant has the right to confront the witnesses against him and that testimonial evidence shall not be admissible unless the witness is “unavailable” and the defendant has previously had the right to cross-examine the witness.Justice Scalia delivered the opinion of the court and was joined by Stevens, Souter, Thomas and Ginsburg.  Justice Kennedy wrote the dissent and was joined by Roberts, Alito, and Breyer.  The dissent argues that these reports should be exempt from the confrontation because they are not normal witnesses, they are neutral scientists.  Justice Scalia does a masterful job of demonstrating what a bunch of garbage that is.

 “Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”  A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”

I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team.  Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well.  This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here?  The court gave it’s blessing to two different ways to handle these witnesses.  Some states can require them in every case.  Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object.  Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial.  Additionally, I believe that this case invalidates OCGA 40-6-392 (e) (1-3) and (f).  These statutes all deal with testimonial evidence that the defendant has the right to confront.The State had better bring the area supervisor to testify in their next breath test case if they want to get those certificates in.  All lawyers need to read this case and be able to articulate the proper objections.

     If there is no anti-clotting agent in a tube used to collect blood, the blood will clot (due to the presence of fibrinogen in the blood). Upon centrifugation of the tube, the clear yellow liquid at the top is called serum and contains little or no fibrinogen because the fibrinogen has been used up in the clotting of the blood cells. A sample of the serum can then be removed for analysis of its serum alcohol concentration.

     If there is an anti-clotting agent in the tube, the blood should not clot if properly mixed (tube inverted a few times). The tube can then be either shaken and a sample of the whole blood can be then be removed for analysis of its blood alcohol concentration, or the tube can be centrifuged. Upon centrifugation of the tube, the clear yellow liquid at the top is call plasma and contains about 0.34 grams of fibrinogen per 100 mL of plasma. A sample of the plasma can then be removed for analysis of its plasma alcohol concentration.

     Because serum and plasma only differ by the absence or the presence of a trace amount of the fibrinogen protein, the serum alcohol concentration and the plasma alcohol concentration should be essentially identical. However, due to their higher water content than whole blood, the alcohol concentration in either serum or plasma should be about 18% greater on average than the actual whole blood alcohol concentration.No lab would try to measure the alcohol concentration in a blood clot which, because of its relatively low water content, would theoretically be relatively low in alcohol concentration compared to the whole blood alcohol concentration.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     The first step in the blood collection process is decontamination of the area where the blood will be drawn.  In clinical use a prepackaged 70% isopropyl alcohol pad is the preferred antiseptic.  However, Betadine (povidone-iodine) is the swab of choice for forensic blood draws.  If Betadine is used, it must be allowed to dry prior to the puncture.  Studies have shown that sloppy swabbing of an injection site will increase a blood alcohol concentration.

     Most forensic laboratories purchase 10 milliliter gray top tubes containing 100 mg. sodium floride, a preservative, and 20 mg. potassium oxalate, an anti-coagulant.  Therefore, when 10 ml. of blood is drawn, the concentration of preservative is one percent.  A tube with an anti-coagulant should be inverted at least eight times (eight to ten is usually recommended).  If this is not done, the anti-coagulant will not properly mix, resulting in a low concentration, which in turn can lead to microclotting and an inaccurate result.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

    

   

     We are seeing more arrests for DUI where the breath alcohol concentration is not consistent with the manifestations of impairment described in the arrest report or captured on video.  In some, but not all of these cases, the culprit is detected by a blood test, and that culprit is some drug other than alcohol that the client has consumed.  As more and more people take selective serotonin reuptake inhibitors (SSRI’s) such as Paxil and Prozac, we will see more and more of these cases.

     Alcohol and many drugs do not simply have an additive effect; they have a synergistic effect.  That is to say that the effects of the two substances are not merely added together but are essentially multiplied.  When even an adult dose of acetaminophen may produce impairment equivalent to a BAC of .05, it is not difficult to understand how prescription medications combined with alcohol can cause serious impairment. 

     One of the other commonly abused drugs is oxycodone.  It is the narcotic found in Percoset (with acetaminophen) and Percodan (with aspirin).  It is a synthetic opioid and like its natural cousins can cause addiction and then withdrawal symptoms. 

     When we represent an individual with these drugs in his or her system at the time of arrest, it is almost always necessary to retain a pharmacologist or toxicologist.  Otherwise, an employee of the state crime lab will be the only “expert” in the courtroom, and that employee’s testimony, if unrefuted, will seal the defendant’s fate. 

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Your hematocrit level is the ratio of aqueous portions and solid portions of your blood.  When alcohol enters your bloodstream it is carried in the plasma (liquid portion).  Alcohol does not get absorbed into the red blood cells and other solid material in your blood  Someone with a higher hematocrit level will have more solid parts in their blood and therefore will have less space for the alcohol to disperse in the liquid portion of the blood.  Normal hematocrit differences can elevate a BAC by 10% to 14%.

When the police arrest an individual for DUI and arrange for blood to be drawn by a nurse, phlebotomist or other qualified individual, it should in all cases in Georgia be taken from the suspect via a vacutainer.  Two vacutainers (vials with a seal or septum at the top) are included in each blood alcohol testing kit provided to police agencies in Georgia.  Each of these vials should contain two substances -sodium flouride, the  preservative, and potassium oxalate, an anticoagulent.  Each of these tubes will be  vacuum sealed, which explains why they are called vacutainers .

The vacutainers also have an expiration date, after which the vacuum seal is no longer warrantied.  The expiration date will be printed on the outside of the blood testing kit, which is basically a small cardboard box.  The truth is that only a very small handful of  phlebotomists or police officers ever pay any attention to the expiration date, because they are rarely challenged on the issue.  In addition, state crime lab personnel don’t confirm the the expiration date.

The manufacturer’s quality control procedures only require that one out of every four thousand vials be checked.  The bottome line is that there are at least three possible defects in the state’s blood test:

1. A failed septum (or seal) on one or both of the vials, which cannot be detected after the blood in a tube has been tested, because that vial has been opened.

2. Improper amount of sodium flouride in one or both of the tubes.  Since the vacutainers are rarely if ever refrigerated before being dropped off at the the Division of Forensic Sciences, the proper amount of preservative is critical. Either too much or too little can lead to a false high test result. 

3. Improper amount of potassium oxalate in either of the tubes. 

In the case of a defective seal organisms from the environment, such as candida albicans, can get in.  Unless there is enough sodium flouride in the vial, the organisms that may be in your client’s blood will grow. The most common of these is candida albicans, a yeastlike organism that has proven to be highly resistant to sodium floride. When candida albicans is in close proximity to glucose and a source of heat, it will create ethyl alcohol via fermentation.

Too much sodium flouride may cause “salting out”, which will also lead to a false high test result with headspace gas chromatography. This can occur even if there is no problem with the vacutainer, but the phlebotomist draws too little blood.

If there is not enough potassium oxalate, the blood can coagulate or “micro-coagulate” which is almost completly undectable. Because this changes the ratio of liquid to solid in the substance that is tested, and ethanol is water soluble, it can lead to a false high test result.

It can be virtually guaranteed that in any case involving a blood test the lab did not test for the presence of Candida Albicans, the lab did not check the vial seal, and the lab did not check the amount of sodium flouride or potassium oxalate in the tube.

If any of these occurred, you will in all likelihood have a false high blood alcohol concentration reported by the lab.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     If a person has taken methamphetamine, that individual should also have its metabolite amphetamine in his or her system. In other words, levels of both methamphetamine and amphetamine should be detected in both the blood and urine. Some GC/MS assays can falsely yield positive methamphetamine levels when high concentrations of ephedrine or pseudoephedrine are present in the specimen. Depending on the temperature of the injection port, the ephedrine or pseudoephedrine can be converted (or cooked) to methamphetamine. Therefore, sound scientific practice requires a negative report for methamphetamine if only methamphetamine is found in blood or urine. The absence of amphetamine means that the person had not consumed methamphetamine, which would in the ordinary course of metabolism would produce amphetamine. Therefore, in a case where only methamphetamine is found in the blood or urine the person probably had a cold and taken cold medicine containing ephedrine or pseudoephedrine.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Hospital laboratory testing of serum alcohol involves use of the enzymatic method. The enzyme kits do not measure alcohol directly. They oxidize alcohol to acetaldehyde by the reduction of NAD+ to NADH. The amount of NADH produced
is therefore a function of the amount of alcohol present in the sample, and the amount of NADH produced is measured via a color reaction. However, if the blood also contains high levels of lactate (lactic acid) from either the administration of Ringer’s Lactate or the release of lactate from damaged tissues and also high levels of LDH (lactate dehydrogenase) enzyme from damaged tissues, then it is possible that the NAD+ from the enzyme kits will also oxidize of lactate to pyruvate, thereby also producing NADH which would appear as “alcohol” in the test results. Therefore, it may be possible to have falsely high alcohol test results from serum alcohol tests using these hospital enzyme kits if both lactate and LDH are in high concentrations in the blood.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website