Archive for March, 2006

How Do You Know the Blood They Tested was Yours?

Friday, March 31st, 2006

Let me tell you about one of my law firm's DUI cases that ended up in a Los Angeles Times article entitled "DUI Case Botched by Blood Mixup".

One of the attorneys in the firm had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab got the vial  of our client's blood mixed up and tested someone else's blood. Kind of like the work they did in the O.J. Simpson case.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type "O"– the same as our client's. But, then, that's the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory that specialized in DNA testing.

A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges.  Predictably, in the L.A. Times article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible,  But, they said, they are fairly confident that the lab did not make a mistake.  One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD's jail intake facility in Van Nuys. 

Typically, the police claim infallibility: "We do not make mistakes…It was the nurses". 

So how could this have happened? The truth is that it probably happens far more commonly than we suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else's vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.

It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph instruments, and the vial is one of many analyzed in large "batches". A batch is a group of vials, perhaps 40 or more which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won't be just one person whose blood is falsely reported: every other vial may also be one off — and will all be wrong.  And you have 40 people people facing criminal charges based upon false evidence.

"How do I know the blood they tested was mine?" Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around. 

Otherwise, I guess you'll never know….


Asthmatics Punished for Inability to Give Breath Sample?

Tuesday, March 28th, 2006

Almost all states now have increased penalties for refusing to submit to blood-alcohol testing, usually involving added jail time and/or longer license suspensions. A few states even make refusing a separate and distinct crime. A large percentage of those charged with “refusing” are innocent.

One of the most common refusals is the failure to breathe hard enough to produce a breath sample.

The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.

But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of the most common machine used today, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.

Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.

Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.

The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?

(Thanks to Dr. Ronald Henson.)


Preemptive Arrests Spreading?

Sunday, March 26th, 2006

For those who think that the previous post about police arresting people in bars before they can drive under the influence (even if they don’t have a car) is just a recent and isolated Texas aberration, consider this past story from the Washington Post:

2 Arrested in Va. Bars Dispute Police Account

Reston, VA.   On karaoke night at a crowded Reston bar just before Christmas, Daniel Crowley had at least six beers at a stage side table where he sat with three friends.

The mortgage broker had no idea that the attractive man and woman eyeing him from their stools were plainclothes Fairfax County police officers. Their mission was to observe drunks in bars so uniformed officers could arrest them on charges of being drunk in public.

No one had complained about Crowley’s behavior, and one of his friends was the night’s designated driver. But Crowley was about to be caught up in a police operation that was designed to deter intoxicated drivers, but has subsequently been criticized as heavy-handed and unfair.

“I didn’t know what was going on,” Crowley testified yesterday in Fairfax County General District Court, where he contested the charge before Judge Michael Cassidy. “I’d paid my tab, and I was ready to go home.”…

Big Mother is watching….


New Tactic: Preemptive Arrest

Wednesday, March 22nd, 2006

The latest in the War on Drunk Driving: arrest folks before they commit the crime:

Bar Sweep Sparks Controversy

Dallas, March 22. NBC5 News.  The Texas Alcoholic Beverage Commission sent a message to bar patrons last week.

TABC agents and Irving police swept through 36 Irving bars and arrested about 30 people on charges of public intoxication. Agency representatives say the move came as a proactive measure to curtail drunken driving.

North Texans interviewed by NBC 5, however, worried that the sweep went too far. At one location, for example, agents and police arrested patrons of a hotel bar. Some of the suspects said they were registered at the hotel and had no intention of driving. Arresting authorities said the patrons were a danger to themselves and others…

TABC officials said the sweep concerned saving lives, not individual rights.

Individual rights? Haven’t they heard of the “DUI Exception to the Constitution”? (And so much for designated drivers, calling a taxi, walking home, etc.: now you get arrested for being a potential drunk driver — even, apparently, if you don’t have a car to drive.)

(Thanks to Jon Lucca.)


Cracks in the Dam?

Monday, March 20th, 2006

Is the media finally beginning to get it?  From yesterday’s (Sunday) Boston Globe:

Over the Legal Limit

Get-tough laws in Massachusetts and nationwide are cracking down on drunk drivers. Are they also eroding our constitutional rights?

By Mark Schone  |  March 19, 2006

FOR YEARS, CALIFORNIA defense lawyer Lawrence Taylor, who specializes in drunken driving cases, has traveled the country telling anyone who will listen that the decades-long, nationwide crackdown on drunk drivers has posed a significant threat to the Bill of Rights — what he calls a dangerous ‘’DUI exception to the Constitution.”

Whenever he steps outside the echo chamber of his fellow defense attorneys, however, he doesn’t get a very warm reception. ‘’I've pretty much stopped doing radio,” Taylor said recently. ‘’Most of the time it’s a setup. They assure me I’ll be the only one on the show, and then they confront me with a woman from Mothers Against Drunk Driving whose son or daughter was killed by a drunk driver.”

Taylor has learned to expect little sympathy for his clients and his cause — from the public or their elected representatives. As much as 90 percent of the US population supports get-tough measures like highway roadblocks and license revocation for drivers who refuse blood-alcohol tests, and lawmakers are respecting their wishes. Last fall, the Massachusetts Legislature approved the anti-drunken-driving package called Melanie’s Law, and Rhode Island’s governor will sign an even tougher bill by June. Rhode Island’s version will make refusing a breath test a criminal offense, and will empower police to force motorists to provide blood samples.

The next step in the crackdown will be letting the police take the blood samples themselves — something Texas and Utah are already trying. ‘’Would you want a police officer to stick a hypodermic in you?” asks Taylor.

But the point of his crusade, Taylor says, is not saving drunk drivers from a clumsy jab with a needle. It’s not really about drunk drivers at all. Taylor believes that a series of Supreme Court decisions upholding harsh drunken driving laws means that authorities can now abridge civil liberties almost at will, as long as they invoke public safety. The decisions affect the defendant’s right to a jury trial, to examine evidence, to confront an accuser, and, perhaps most notably, to be free from self-incrimination and unreasonable search and seizure.

Taylor thinks the implications extend far beyond cases of driving under the influence to all areas of criminal law, including murder trials, and even to the measures taken by the Bush administration in the war on terror. Taylor likes to close his stump speech with a humorous paraphrase of Martin Niemoeller’s famous warning about creeping fascism — “First they came for the drunks, but I was not a drunk, so I did not speak up” — but he’s quite serious. ‘’Law is based on precedent,” he warned. ‘’When you start dismantling constitutional protections, you’re setting precedents. I don’t think people understand what we’re doing constitutionally.”…

Taylor thinks these measures have led to a Bill of Rights with a few asterisks for those who are accused of driving under the influence. But at the federal level at least, the battle over constitutionality, like the battle for public opinion, is mostly over. Most of the anti-drunken-driving measures that MADD has championed have been vetted by the Supreme Court and survived the ordeal….

Perhaps Lawrence Taylor, for years preaching to the converted, may yet find a new audience for his speeches — if not out of compassion for intoxicated motorists, then out of fear of those who might become intoxicated by power.