BIB

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alcohol

Understanding quantitative blood alcohol testing blood alcohol testing in drunk driving cases. in drunk driving cases.

Understanding quantitative

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Patrick T. Barone and and Jeffery By Patrick T. Barone JefferyS. S. Crampton Crampton

runk driving runk drivingcases cases involving involving blood blooddraws draws are are considerably considerably more complicated complicated to to litigate those involving involving breath more litigate than than are are those breath testing. While While the testing. the attorney attorney is is confronted confronted with with a a test test result result more reliable reliable than than with breath, that is is usually usually more breath, the the foundafoundaD tional requirements areconsiderably considerablymore more substantial. The testing tional requirements are substantial. The testing procprocess isnot not infallible, infallible, and this process iscritical critical if if the ess is and understanding understanding this process is the dedefense attorney hopes hopesto to appropriately appropriately represent representaablood blooddraw draw client. client. This This fense attorney article will will present an overview overview of of the the typical typical blood from the article present an blood draw draw case, case, from the draw blood blood draw through throughthe the actual actual testing. testing.

The Search Warrant

Most blood blood is is drawn drawn after after the the client clienthas has refused refused to offer a a breath breath sample,and andaacourt courthas has authorized a warrant. Thus the warrant and sample, authorized a warrant. Thus the warrant and affiafi- in davit in support support should should be be examined examined to determine determine if they they are are properly properly What evidence evidence is isthere thereto to support support the posupported by probable cause. cause. What oficer's conclusion Under limited limited lice officers conclusion that that your your client client was was intoxicated? intoxicated? Under circumstancesititmay may be beappropriate appropriateto tofile file a a motion motion to circumstances to quash quash the the warwarrant, such as when when the the warrant warrant is is based basedon oninsufficient insuficient probable rant, such as probable cause.1 cause.' Keep in mind, Keep mind, however, however, that in the the context context of of a a drunk drunkdriving drivingcase, case, a warrant of a a prelimiprelimiwarrant for for blood blood may may be be supported supported entirely entirely by by the the results results of nary breath breath test.2 nary
test.2

The Blood Draw

The of inquiry inquiry is is the the blood blood draw draw itself. itself. Michigan Michigan law law ininThe next next area area of dicates that that only a licensed physician, or or an an individual operating dicates licensed physician, operating delegation of of a a licensed licensedphysician, physician,who whois isqualified qualified to to withwithunder the delegation draw blood and is acting in a draw a medical medical environment, environment, may may withdraw officer's request requestto to determine determine the the amount amount of alcohol blood at at a a peace peace officers alcohol 3 However, in a blood.3 However,the thephrase phrase "qualified to to draw draw blood blood" is in a person's persons blood. qualified is rather broadly broadly defined, can be be qualified qualified simply simply by rather defined, and and a a person person can by edueducation, training, training,or orexperience.4 experience.4

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AUGUST 2003

As As with with breath breath testing, testing, there there are are administrative administrative rules rules that that cover cover blood testing.5 rules cover cover how how the should be blood testing.5 These These rules the test test results results should be exexpressed, theacceptable acceptable techniques for blood testing, the pressed, the techniques for blood testing, the calibration calibration of the test equipment, equipment, and andthe thecollection collectionand andhandling handlingof ofthe theblood. of the test blood. Additionally, the policelab labpromulgates promulgates its own rules for Additionally, the state state police its own rules for blood blood testing. These Theserules rules can be obtained by sending a Freedom of testing. can be obtained by sending a Freedom of InforInfor- Act request mation request to to the state state police policelaboratory laboratoryin in Lansing. Lansing.All All of of the applicable applicable rules rules should should be be reviewed reviewed to to determine determine if if there any the there are are any defectsthat that could could affect afect the defects the foundational foundational requirements. requirements. Caselaw law also alsoindicates indicatesthat thatthe theparty partyseeking seekingintroduction introduction must must Case show (1) (1) that the blood was show was timely taken, taken, (2) from a a particular particular identified body, body, (3) (3) by byan anauthorized authorizedlicensed licensed physician, physician, medical medical technologist, or technologist, or registered registered nurse nurse designated designated by by a a licensed licensed physician, physician, sterile, (5) (5) that that the blood (4) that that the the instruments instruments used used were were sterile, blood taken taken was properly preserved preservedor orkept, kept, (6) (6) and and labeled, labeled, and and (7) (7) if transwas properly transported or sent, therein, (8) the sent, the the method method and and procedures procedures used used therein, usedin in conducting conducting the the test, test, and and (9) (9) that method and procedures procedures used the identity identity of ofthe theperson personor orpersons persons under under whose whose supervision supervision the the 6 tests were wereconducted conducted is is established. established. tests The an imThe type type of of swab swab used used to disinfect disinfect the the draw draw site site is is also also an portant issue. issue. The state state police kit kit contains contains a a non-alcohol non-alcohol swab, swab, and it should and should be be determined determined whether whether or or not notthis thisswab swabwas was used. used. The The kit kitalso also contains contains two twogrey-stoppered grey-stoppered vials, vials, and and these these contain sodium fluoride, fluoride, a a preservative preservative used used to prevent prevent coagulation coagulation and neo-generation of of alcohol. alcohol. It It should be determined determined whether whether or or neo-generation should also also be not the used,and andthe theexpiration expiration date dateof ofthe thekit kit ititnot the proper proper vials vials were were used, self. Some Someof of this this information information can self. can be be obtained obtained in inthe thedefendant's defendants first discovery first discovery demand, demand, but but a a thorough thoroughexamination examinationof ofthese these facts facts 7 If and issues usually requires requiresan an evidentiary evidentiary hearing. hearing? and issues usually If the thecase case being defended defended is is a a felony, felony, then then the the appropriate appropriate inquiry can being can take take place place at the the preliminary preliminaryexamination, examination,as aslong longas asdefense defense counsel counsel has made a a timely request has made request for for the the laboratory laboratorytechnician's technicians appearappearance at at the the preliminary preliminary examination.8 ance examination.8

BLOOD ALCOHOL TESTING

Integrity of the Blood Sample

What reached What was was the the condition condition of ofthe theblood bloodwhen whenitit reachedthe thelab? lab? Is Is it possible for coagulation If so, it possible for coagulation to to have have occurred? occurred? If so, then then it it is is also also pospossible that that there there was wasthe theneo-generation neo-generationof ofalcohol alcoholthrough through microbial microbial sible fermentation. When When human naturallyoccurring fermentation. human blood blood decomposes, decomposes, naturally occurringcan microbes canchange change the sugars in the blood into alcohol. This is microbes the sugars in the blood into alcohol. This is the the same type of fermentation that occurs in the manufacture of same type of fermentation that occurs in the manufacture of beverbeverage alcohol. alcohol. It It is for the police laboratory laboratory to detect age is possible possible for the state state police detect whether by analyzing the level level of of glucose in the whether this this has has occurred occurred by analyzing the glucose in the subject sample, sample, orto toexamine examine the ratio of ethanol to carbon subject or the ratio of ethanol to carbon dioxide dioxide in the headspace gas. This is not done in in the headspace gas. This is not done in Michigan. Michigan. See if there is any indication of the condition of the the sample sampleafter See if there is any indication of the condition of after it reached the lab, lab, but but before it is Did the it reached the before it is tested. tested. Did the technician technician note note any coagulation coagulation of of the the sample? This might might occur occur with with an any sample? This an expired expired the blood blood did not gently tip the kit, or or if if the the person person who drew the the vial back and and forth forth to If the back to mix mix the the anti-coagulant anti-coagulant with with the the sample. sample. If the sample was wascoagulated, coagulated,then thenwas wasthe thesample samplecentrifuged centrifugedprior prior to to sample testing?If If so, so, then then this this probably testing? probably resulted resulted in in a a false false high high result, result, bebecauseonly onlythe the liquid liquid portion cause portion of of the theblood bloodwas was tested, tested, rather rather than than whole blood complete complete with with its its cellular cellular material. material.If If neo-generation neo-generationof whole blood of ethanol is is suspected, suspected, then glucose levels the blood sample ethanol then glucose levels in in the blood sample should should be tested by an independent lab to determine the ratio ethanol be tested by an independent lab to determine the ratio ofof ethanol to to carbon dioxide. dioxide. carbon If the the blood bloodwas was not nottested tested by by the the state state police police lab, lab, but but instead instead was testedby byaa local hospital, then likely that serum rather was tested local hospital, then it it isis likely that serum rather than than whole performed. The whole blood blood testing testing was was performed. The scientific scientific literature literature sugsuggeststhat that this this can can cause causeaareading readingthat that is is 11 11 percent percent to to 20 percent gests too high. closeto to the the per perse se limit, then then this this analysis too high. If If the the sample sample is is close limit,

analysis

Chain of Evidence
As with all collectedby bythe theauthorities, authorities,the theprosecutor As with all evidence evidence collected prosecutor show must show a proper proper chain of evidence. evidence. In other other words, words, the the prosprosecutor must show show that that the the blood bloodthat thatwas wastested testedwas was the the same same blood that arm. In In Michigan, blood that left left the the defendant's defendants arm. Michigan, the the state state police police provide a blood draw kit, provide a kit, which whichis isessentially essentially a box containing everything necessary fora a proper proper blood blood draw. draw. After After the everything necessary for the sample sample is is
collected, the the blood blood is sent by by mail mail to police laboracollected, is usually usually sent to the the state state police laboratory for for testing. testing. Look Look at at the the labeling labeling of ofthe thespecimen specimen and and make make sure sure everything was coded and and labeled labeledcorrectly. correctly.It It should should also also be be noted noted that that the waseverything coded the vials contained in in the with vacuum vials contained the blood blood draw drawkits kitsare are sealed sealed with vacuum stopstoppers. It would to introduce introduce ethanol ethanol through through pers. It would therefore therefore be be very very easy easy to the stopper, stopper,and andsuch such tampering wouldnot notbe bevisible visible fromaasimple the tampering would from simple visual examination of The administrative administrative rules visual examination of the the vials vials themselves. themselves. The rules require that the in a way that ensures their integthe vials vials be be sealed sealed in ensures their rity, but policeofficers oficersin in Michigan Michigan will will only rity, but unlike unlike other other states, states, police only sealthe the box box containing containing the seal the subject's subjects blood. blood. The Thevials vialsthemselves themselves are are not sealed. not
sealed.

Fast Facts:
administrative rules rules require require that that vials vials of of The administrative The

Fast Facts:

MICHIGAN

blood be in a a way way that their blood be sealed sealed in that ensures ensures their integrity, but unlike other states, police integrity, but unlike other states, police officers officers in Michigan Michigan will will only in only seal seal the the box box containing containing the subject's blood, not not the the vials. the subjects blood, vials. naturally When human human blood blood decomposes, decomposes, naturally When occurring microbes can change the sugars in occurring microbes can change the sugars in the blood blood into the into alcohol. alcohol.
administrative rules rules regarding regarding blood blood The administrative The
testing cover cover how how the results should should be testing the test test results be expressed, the acceptable techniques expressed, the acceptable techniques for for blood testing, testing,the thecalibration calibration of the blood of the test test equipment, and the collection and handling equipment, and the collection and handling of the the blood. of

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can can become becomecrucial. crucial.If If serum blood serum blood was was tested, tested, then it it should should be be deterdeteror not a mined whether whether or hematocrit, which which measmeasures the the ratio ratio of of the vol- ?ti ures red blood ume of packed packed red cells cells to to the the volume volume of of whole run on whole blood was was run blood. The the subject's subjects blood. hematocrit ratio permits permits 1-1 V a more accurate a accurate "converconversion the test test result result sion" of the from the the serum serum level level to the necessary necessary whole blood the whole blood level.
level.

As with all all evidence collected As with evidence collected by by the authorities, authorities, the the the prosecutor prosecutor must show show a a proper proper chain must chain of evidence. evidence.In Inother otherwords, of thewords, prosecutormust must show that the prosecutor show that the the blood that was tested blood that was tested was was the sameblood bloodthat thatleft leftthe the same the defendant's defendants arm. arm.

The Testing Procedure

As there are are administrative administrative rules rulesthat that apply apply to As indicated indicated above, above, there the testing procedure. procedure. The state state police lab lab has has also also promulgated rules that dictate areto to be be run. run. The rules that dictate how how these these tests tests are The state state police police lab lab usesa aprocess process known as asgas gas chromatography.Gas Gaschromatography chromatography is uses known chromatography. is essentiallyaafunction function of of time time and and temperature. In running running the essentially temperature. In the test, test,

sampleis isfirst first mixed mixedwith with one one of of two interthe sample either 1-propanol 1-propanol or or t-butanol. nal standards, standards, either Each sample sample is is then then tested tested separately separatelyby bytwo two difdifEach ferent and the the lab ferent chromatograms, chromatograms, and lab reports reports the the lower lower of of the the two tworesults. results. is diluted, diluted, it is Once the the sample sample is is then then heated heated to produce produce a a vapor. vapor. The The vapor vapor is is then thenpassed passed through a column. The The vapor vapor is is then then timed timed through a glass glass column. and measured measuredas as passes out (elutes out) and ititpasses out ofof (elutes out) the the end other end of of the the column. column. The The chromatograph itother chromatograph itself produces produces a a chromatogram, chromatogram, which which is self is a a readreadout that something like like an anEKG. EKG. The The peak out that looks looks something peak measurement or or curve curve on on the measurement the chromatograph chromatograph is is then compared compared with with a a calibration calibration curve, curve, and and the then the is amount of amount of blood bloodalcohol alcohol is determined determinedby byreading readingwhere where this this sample sample peak overor or meets meetsthe the calibration calibration curve. peak passes passes over curve. Defense Defense counsel counsel should make makeevery every effort toobtain obtainthrough throughdiscovery discovery both the should effort to both the subsubject defendant'schromatogram chromatogram well calibration curve. ject defendants asas well as as thethe calibration curve. These These can then then be beevaluated evaluated by the defense can by the defense expert. expert. There are many many other other areas areas this procedure that are There are ofof this procedure that are susceptible susceptible to defense challenge. The first the method by which the gas to defense challenge. The first isis the method by which the gas chrochrois matograph is calibrated. calibrated. The Theglass glass columns columns are are replaceable, replaceable, and and

BLOOD ALCOHOL TESTING AUGUST 2003

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a period of time after a time become become fatigued (fail to to produce produce appropriate appropriate results with with known known solutions). column is results solutions). When Whenaanew newglass glass column is inserted inserted for the be for the first first time timeititmust must becalibrated, calibrated,and andthis thisrequires requires adjusting adjusting the temperature temperature of of the the the machine. machine. In other other words, words, the the temperature temperature of the the chromatograph chromatograph is is adadjusted to make make sure sure that that the the column columnmeasures measures a known known sample sample appropriately. on appropriately. These These adjustments adjustmentsare arebased based onrunning running a a known sample containing containing methanol, ethanol, sample ethanol, isopropanol, isopropanol, and and acetone, acetone, and observing how the and observing how the column columnresponds responds at atvarious various temperatures. temperatures. These adjustments are are made made despite despitethe thefact fact that that the the now-rescinded now-rescinded These adjustments written methods methods or or techniques techniques promulgated by the the state state police pursuant to to the provided for for a a column column tempursuant the administrative administrative rules9 rules9 provided temperature of of 100 100degrees degrees Celsius. This This is is a a salient salient point pointbecause, because, as as indicated above, the analysis is based basedin inpart part on on temperature. temperature. Thus, Thus, indicated above, the analysis is in questioning questioning the the person person who whocalibrates calibrates the themachine, machine,defense defense counsel should should inquire inquire into the counsel the maintenance maintenance of the the chromatochromatograph used, used, particularly particularly as it pertains graph as it pertains to to the the last last time time the theglass glass colcolwhat temperature temperature this this new column was umn was was replaced, replaced, what was calibrated at at when and at at what brated when replaced, replaced, and what temperature temperature the the subject subject samplewas was sample analyzed. analyzed. Close attention attention should should also alsobe begiven givento to the the manner manner in in which Close which the calibration calibration curve curve is is produced. produced. A A common common method is to take the take samplesof ofknown known alcohol alcohol solutions solutionsand and run run them them through the samples the chromatograph, thus thus producing producing the calibration curve. chromatograph, curve. The rules rules promulgated promulgated by by the the Michigan MichiganState State Police Police provide provide for foraasevensevenpoint calibration point calibrationcurve. curve.These These calibration calibrationsamples samples are are usually usually preprepared in the to human pared in the laboratory laboratory and and are are therefore therefore subject subject to human error. error. During cross-examination whether During cross-examinationdefense defense counsel counsel should shouldassess assess whether the laboratory both before the laboratory equipment equipment used used was was properly properly cleaned cleaned both before and after after testing, testing, and and whether whether it it was from any and was free free from any contaminants contaminants such as asacetone acetone and such and alcohol. alcohol. Additionally, counselshould should inquireinto into the the method method by Additionally, defense defense counsel inquire by the which the ethyl ethyl alcohol alcohol used used to tomake make the thecalibration calibrationsamples samples is is stored and and handled, handled,and andalso also inquire as the training and stored inquire as toto the training and experiexperience of all all laboratory involved anywhere in the ence of laboratory personnel personnel involved anywhere in the process. process. Alcohol's inherentvolatility volatility can canalso also cause the calibration Alcohols inherent cause the calibration samples to samples to if be incorrect incorrect be if the the absolute absolute ethanol ethanol used used to to prepare prepare them them is is stored stored improperly. Once the Once the calibration calibration curve curve is is produced, produced,its itssoundness soundness is is evaluevaluated by running a second set of controls, also produced in the labodb f 1 1 d d: h lb L d Aate by runnig a sewn set o contro s, a so pro uce ratory. A negative control of deionized water is also run through the N ratory. A negative control of deionized water is also in t e a oR two chromatographs. Finally, once the calibration two chromatographs. Finally, once the calibrationcurve curveis is calcucalcurun through the U lated and tested, a known human blood control isisanalyzed. lated and tested, a known human blood control analyzed. It is is i0 only after only after this this final finalcalibration calibrationand andtesting testingprocedure procedure is is complete complete R that that an unknown blood sample can and should be an unknown blood sample can and should betested. tested. might argue that the entire calibration procedure One might argue the entire calibration procedure turns turns A on the accuracy of the human blood sample, and therefore, deon the accuracy of the human blood sample, and therefore, deB N fense counsel should include in in their discovery demand fense counsel should include their discovery demandaarequest request A the lot number and accompanying literature for the human Gfor for the lot number and accompanying literature for control used in testing their client's case. The literature blood used in testing their clients case. literature the human H indicates that the human blood used these indicates that the human blood usedin in these controls controls is is first washed using a solution containingsodium sodium fuoride, fluoride, with with sosoI washed using a solution containing dium azide The use dium azide added added as as a a preservative. preservative. The use of washed washed blood is is

suspectas asalcohol alcoholreacts reacts differently inthis thissolution solution than than in itself suspect differently in human whole whole blood. There a certain certain amount amount of of error inherent in There is also also a in these these purchasedsamples, samples, and this may be as high 20 percent. The chased and this may be as high asas 20 percent. The literaliterawill indicate ture will indicate exactly exactly what this this error error is is for for the the lot lot number numberused. used. As indicated above, above,due dueto tothe thevolatility volatility of of ethanol, ethanol, additional additional error As indicated error may occur on the may occur based based on the way way the the sample sample is is stored. stored. It appears that the the error error inherent inherent in in the the human human blood blood control It appears that control is in addition is addition to to the the error error inherent inherent in inthe thechromatogram chromatogram itself. itself. The promulgated by by the the Michigan The methods methods and and techniques techniques promulgated Michigan State State Police require require that that the the blood blood testing Police testing be be performed performed on on two twoseparate separate chromatograms, and and provide provide for for and chromatograms, and allow allow a a difference difference between between them of them of up up to to0.02 0.02percent. percent. This Thisis isessentially essentially a a recognition recognition by by the state police that that the the machines can be be no no more more than than .02 .02 perthe state police machines can percent accurate.

BLOOD ALCOHOL TESTING

Conclusion
When where blood blood alcohol When representing representing a a defendant defendant where alcohol testing testing is is involved, it is important to first preserve the blood samples. Moreinvolved, it is important to first preserve the blood samples. Moreover, it it is is critical critical to over, to understand understand how how blood blood testing testing is is conducted conducted at at the state police laboratory, and the inherent limitations in the the labothe state police laboratory, and the inherent limitations in labo- testing ratory's testingprocedure. procedure. Onlyafter afterthis thisinformation information is isunderstood ratorys Only understood can the practitioner be prepared to file motions to can the practitioner be prepared to file motions to exclude exclude the the
blood evidence, or failing blood evidence, or, failing that, that,efectively effectivelycross-examine cross-examine the the laboralaboratory experts in efort to produce reasonable doubt as to the tory experts in effort to produce reasonable doubt as to the reliabilreliability of results.o ity of the the test test results.

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AUGUST 2003

Patrick T. to Patrick T. Barone Barone is is a a sole sole practitioner practitioner devoting devoting his his law lawpractice practice exclusively exclusively to memberof ofthe theNational National College College fr drunk driving driving defnse. defense. He He is is a a general general member for DUI defnse, ofthe the Ntional Association fr Criminal Defnse DUI defense, a a member member of National Association for Defense Attorneysand andthe the Criminal Law Law Section Sectionof ofthe the State Bar Mchigan.His Hs office offce torneys Criminal State Bar ofof Michigan. is located locatedin inBloomfield Bloomfeld Hills, Hll, and he appears the state. state.He H is and he appears in incourts courts throughout throughout the can be bereached reached (248) 647-5220,or orat athttp://www.mid3.net. can atat (248) 647-5220, http://www.mid3.net.

Jefry is a a litigator litigator with Kernke PC in in Grand JefferyS. S. Crampton Crampton is Koernke er & Crampton, Crampton, PC Grand Rapids. He concentrates his practice on white-collar criminal defnse and Rapids. He concentrates his practice on white-collar criminal defense and H is the National Ntional Association of CrimiCrimidrunk driving defnse. defense. He isaamember member of of the Association of
nal Defense Defnse Lawyers, Lawyers,and andthe theCriminal Criminal Defense Defnse Attorneys Attorneysof ofMchigan nal Michigan organiorganization. He of the the James Jmes Madison Alumni Associazation. He is is the the past past president president of Madison College College Alumni Association. He can be bereached reached (616) 458-7900,or orat athttp://www.mid3.net. http://www midi. net tion. He can atat (616) 458-7900,

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Footnotes
1. The The search searchwarrant warrant statute statuteis isfound found at at MCL MCL 780.651 1. 780.651et etseq. seq. For Foraadiscussion discussion regarding the PeoplevvMoten, Moten,233 233 Mich Mich 169 regarding the sufficiency sufficiencyof ofaasearch search warrant warrantsee, see, People 169 (1925); People Sobczak-Obetts, 463 Mich687 687 (2001). (2001). (1925); People vvSobczak-Obetts, 463 Mich 2. See e.g.,People People Tracy 435 Mich 853 853 (1990). (1990). 2. See e.g., vv Tracy, 435 Mich 3. MCL MCL 257.625a(6)(c). 257625a(6) 3. (e). MCL 333.16215. 4. MCL 333.16215.
Administrative Rule 5. Administrative Rule 325.2671 325.2671et. et.seq. seq. 6. People Cords, 75 MichApp App415, 415,254 254NW2d NW2d 911 People vvCords, 75 Mich 911 (1977). 7. See, See,e.g., e.g., People v Krulikowski, Mich App 28, 230 NW2d 190 190(1975), (1975),MCL MCL 7. People v Krulikowski, 6060 Mich App 28, 230 NW2d 764.15 and and MCL MCL 257625a. 764.15 257.625a. MCL 600.2167a. 8. MCL 600.2167a. 9. Administrative Rule 325.2672(3).

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