Monthly Archives: March 2006
A key witness in most DUI trials is the prosecution’s crime lab blood-alcohol expert, often called a forensic toxicologist. He will explain to the jury what the breath or blood test results were and what they mean; what the probable blood-alcohol level was when the defendant was driving; and that the breathalyzer was properly maintained, calibrated and in proper working order at the time of the test. To say the least, the honesty and accuracy of this expert’s testimony under oath is critical to the outcome of the trial.
Unfortunately, this witness is often less than honest and objective in his testimony. As a law enforcement employee, he sees his job as helping the prosecutor to secure a conviction — and commonly tailors his testimony accordingly.
The same is true of phlebotomists (technicians who draw a blood from the suspect) who testify as to the procedures used for drawing the blood, identification of the blood sample, etc. The expertise and honesty of this witness is equally critical in a DUI trial.
The following is a complete and verbatum (emphasis in the original) copy of a set of instructions given by the San Diego Police Department to their blood-alcohol technicians testifying in a drunk driving trial (presumably, a different script exists for toxicologists):
You will be asked your name.
You do not have to remember drawing [blood from] the particular defendant. Just say you draw many patients each day you work and it is impossible to remember each one.
You may be asked how you draw the blood. It is the standard procedure you follow for ALL blood draws, EXCEPT that you use a NON-ALCOHOLIC antiseptic wipe (Benzalkolium) to cleanse the phlebotomy site. You ALWAYS follow the same procedure for every blood draw. The blood is drawn into grey top tubes provided by the San Diego Police Department. The tubes contain an anticoagulent (Potassium Oxylate) and a preservative (Sodium Fluoride). You check the tube for the presence of a loose, slightly pink powder before you use it. After you fill the tube with blood, you invert the tube 10 times to mix the blood with the anticoagulent/preservative. You will always mix any tube with an anticoagulent 10 times (you count the inversions). The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.
The suspect is identified by the police officer and, when possible, you check the ID or ask the suspect their name. The police officer completes the label with the suspect’s name, DOB, etc. You put your name, date, draw time, and place on the label and place the label on the grey top tube. You then place the grey top tube in the plastic chain-of-custody tube, put the cap on it, and seal it with the sealing tape provided by the SDPD. You then hand it to the officer and he takes charge of it.
These instructions on what to say in trial are given to law enforcement witnesses testifying under oath. The witnesses are told to “testify” as instructed — not as to what they actually did and what they know to be true in a specific case.
(Thanks to San Diego attorney Cole Casey. A fellow attorney in a recent DUI trial asked a phlebotomist outside the courtroom what he was reading just before going in to testify; surprisingly, the witness showed him — and the attorney shared the document with Mr. Casey.)
Diabetes is, of course, a very common disease in American society. By most estimates, 15-20% of all drivers on the road are diabetics. Unfortunately, the similarity between the symptoms of alcohol intoxication and those of a diabetes attack are striking, and commonly lead to easy — but false — conclusions by law enforcement officers. (See my earlier post, “Diabetes and the Counterfeit DUI”.)
The symptomatic reactions of a person in the early stages of a diabetic attack include dizziness, blurred vision, numbness of lips, weakness, loss of coordination, slurred speech and confusion. These are, of course, symptoms which the patrol officer is looking for: the clear signs of a person under the influence of alcohol. And the officer’s observations are quickly followed by a failing performance on field sobriety tests. To make matters worse, a diabetic who is suffering from an insulin reaction will experience production of acetone in the breath. And acetone is one of those chemical compounds which most breath machines will “see” as alcohol, resulting in a falsely high blood-alcohol test result. (See “Why Breathalyzers Don’t Measure Alcohol”.)
The following is excerpted from an article entitled “Hypoglycemia: Driving Under the Influence”, 8 Medical and Toxicological Information Review 1 (Sept. 2003) by Dr. John Arnold, reproduced in my book Drunk Driving Defense, 6th edition:
Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nation’s roads and highways, including accidents with personal and material damage. Even more frequently are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver…. With the numbers of people with blood sugar problems and other errors of metabolism rising, it is becoming more important that ever for individuals, medical professionals and law enforcement personnel to recognize both the danger signals of hypoglycemia and to understand that although the condition mimics closely those who irresponsibly abuse alcohol, judicious use of sound science principles can ensure that a health-compromised individual is not unjustly punished for a pre-existing physical condition.
Actually, you don’t even need to be a diabetic to display hypoglycemic-induced symptoms of intoxication. Perfectly normal, healthy individuals can experience temporary conditions of low blood sugar after consuming small amounts of alcohol, resulting in exaggerated but false symptoms of intoxication.
According to Dr. Keith Ryan in his article “Alcohol and Blood Sugar Disorders”, 8(2) Alcohol, Health and Res. World (1983), consumption of even small amounts of alcohol can produce hypoglycemia — either fasting glycemia or reactive glycemia. Fasting glycemia can exist where a person has not eaten in 24 hours or has been on a low-carbohydrate diet. Production of glucose in the liver is stopped while the alcohol is broken down. Result: the blood sugar level will drop, affecting the central nervous system — and producing symptoms of intoxication.
Reactive glycemia occurs when consuming alcohol increases the production of insulin by the pancreas. This rise in insulin causes a drop in blood sugar — again, with the attendant false signs of inebriation. Interestingly, this reaction to alcohol is commonly encountered in chronic alcoholics.
The media, whether out of ignorance or a pro-MADD agenda, consistently misrepresents DUI issues — and in the process often displays a frightening ignorance of (or diregard for) the Constitution.
DUI LAWYER TACTIC: CHALLENGE THE BREATH TEST
MIAMI, March 5 AP - Timothy Muldowny’s lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine that determined he was drunk to see whether the test was accurate.
Their strategy paid off.
The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A Seminole County judge tossed out Muldowny’s alcohol breath test, a crucial piece of evidence in a DUI case, and the ruling was upheld by an appeals court in 2004.
Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say…
ï¿½It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery, the 5th District Court of Appeal ruled in Muldowny’s case, which resulted in his charges being reduced to reckless driving.
Apparently, investigating whether a machine which determines guilt or innocence was accurate or not is suddenly a "new DUI lawyer tactic", an "unconventional approach", and a "strategy" which "pays off" if they are stonewalled. Worse, we are now faced with the horror of 1.5 million DUI arrests each year being thrown out — all because of those darned DUI lawyers! Why can’t we just trust these breath machines?
On the other hand, what is the real reason why the manufacturers won’t reveal the secrets of how these gizmos spit out blood-alcohol readings? And if the manufacturers of the different models each use their own "trade secrets", are they all equally accurate? How would we know?
Man Arrested After Saving Two People From Burning SUV
Stanton, PA WLEX-TV March 8. A man is being called a hero after pulling two people from a burning SUV, but he is now in jail after police discovered he was driving on a suspended license.
The incident happened Wednesday morning on Highway 15 in Stanton. Police say Bernie Miller, 48, was killed when he was thrown from his car after he crossed the center line and hit an SUV head-on. Passerby Daniel Landrum and another man pulled Clemon Cole, 70, and Heather Cole, 20, from the SUV as it burned. After police and emergency crews arrived, Landrum was then taken into custody for driving on a suspended license because of a past DUI.
That should teach him.
When a blood sample is taken from a DUI suspect for later analysis, it is usually done in one of two ways. The suspect may have the blood drawn at the police station by a technician, using a prepared kit containing a vial, or it may be taken by a nurse or technician at a medical facility. In either event, it is critical that the vial in which the blood is contained is sterile and contains two things: a preservative and an anticoagulant. The preservative, in conjunction with refrigeration, is to prevent the blood from fermenting — and thereby producing alcohol in the vial before it is tested. The anticoagulant is to prevent the blood from coagulating, or clotting.
Why are we concerned about coagulation of the blood?
Blood is made up of a mixture of solid particles supended in a liquid. The solid particles consist of red blood cells, white blood cells and clotting platelets; the liquid portion is called serum or plasma. (The percentage by volume of the solid particles to the liquid is called the hematocrit of the blood: a hematocrit of .47, for example, would indicate that the individual’s blood consists of 47 percent solid particles — cells and platelets — and 53 percent plasma.)
When blood clots, the liquid portion (plasma) separates from the solid portion (blood cells and clotting platelets). This will be seen in the sample vial as a red clump at the bottom (cells) with a yellowish liquid on top (plasma). When this sample is tested at the laboratory, usually days later, it is the plasma that is tested for alcohol content; the clotted cells at the bottom are not included.
So what? Well, alcohol is attracted to water — that is, it is soluble in water. And since plasma is a liquid and contains water, and alcohol is attracted to water, the plasma in the blood sample will contain a higher percentage of alcohol than in the whole blood sample. The higher the percentage of plasma in the sample being tested, the higher will be the blood alcohol concentration (BAC). Put another way, if two subjects have the same BAC in their bodies but the blood sample from one has clotted and so has a higher percentage of plasma, that person’s “sample” will show a higher BAC.
Unfortunately, it is not uncommon for blood samples collected by police agencies or hospital personnel to contain no anticoagulant, or to contain insufficient amounts of the chemical. (And, of course, we have the emerging practice of just letting the police officer himself perform the blood draw and sample preservation out on the highway.)
An additional problem is that the kits used by technicians usually contain a vial already containing a preservative (commonly sodium fluoride) and an anticoagulant (commonly potassium oxalate) in powder form at the bottom. However, when the blood is added to the vial, the technician does not vigourously shake it — and the chemicals are not mixed with the blood. Result: coagulation — and a falsely high blood alcohol result.