DUI Blood Test Results
How to show the blood test results in your DUI case are unreliable
There are two important phases of evidence that need to be looked into in any DUI case involving a blood test: 1) “What happened before the test was done?”, the pre-test phase, and 2) “What happened while the test was being done?”, or the test phase.
In each of these two phases, we want to look for any errors that may have occurred. We’re looking for issues that could undermine the blood results or leave the reliability of the results in doubt. A bit part of that includes errors made by the people who are involved in the process. Let’s get into the pre-test phase.
Win Your San Diego DUI Blood Test Case in the Pre-Test Phase
Win Your San Diego DUI Case by Showing the Collection of Your Blood Sample was Faulty
Some important errors to look for in the pre-test phase relate to: 1) the collection of your blood sample, or 2) the storage of your blood sample. There are a number of issues relating to the collection of your blood sample that could be important to your case.
DUI Blood Test Requires Sterile Environment
The person who drew your blood should have done so in a sterile environment and using sterile equipment. If the environment and equipment are not clean, there’s a big risk that your blood sample would become highly contaminated. We’re talking about microbial contamination. Now, blood samples always have some microbial contamination, but if the person who takes your blood uses clean equipment, it can minimize the contamination.
DUI Blood Sample Fermentation
This is a big deal because microbial contamination can lead to fermentation in the blood sample. Fermentation is a chemical process that produces ethanol which is a type of alcohol. This means that if there is fermentation happening inside your blood sample, inside the vial they keep your blood in, then alcohol will continue building up inside the vial while it sits there waiting to be tested.
The longer it sits there, the more alcohol can be building up inside the blood sample. Then, when they actually run the test for alcohol in your blood, the alcohol they find could have come from the fermentation rather than from your body. Your blood alcohol concentration, your BAC could look higher than it really was simply because the person who drew your blood did not use sterile equipment or do the blood draw in a sterile environment. Cleanliness is one issue that needs to be looked at in relation to the collection of your blood sample.
DUI Blood Test Collection Site
Another issue that needs to be investigated is where on your body the blood was taken from. The primary question is, “Was your blood taken from a vein or an artery?” This matters because blood from an artery could have 40% more alcohol in it than blood from a vein. If your BAC result was .13% or less, and it was taken from an artery, it’s possible that your actual BAC was under the legal limit of .08%. Right now, you should be thinking, “Woah! That is a huge difference.”
Now, do you think the person who drew your blood wrote down whether your blood was taken from a vein or an artery? Go ahead. Take a wild guess. The answer is no way. Not a chance. Remember, this is the government we’re talking about. The government isn’t trying to do you any favors here. They’re trying to convict you, whether you’re guilty or not. Always remember that.
As a summary, when it comes to the collection of your blood, you want to get information about: 1) the sterility, or 2) whether it was taken from a vein or an artery.
Win Your San Diego DUI Case by Showing the Storage of Your Blood Sample was Faulty
That’s enough about collection. Let’s talk about potential problems related to how they store your blood sample.
DUI Blood Sample Temperature
The number one primary question here is, “What temperature was the blood sample stored at?” Fermentation increases at warmer temperatures, even at room temperature. A blood sample should not be stored or transported at a temperature higher than 39 degrees Fahrenheit. If your blood sample wasn’t stored or transported in a refrigerator, there is a greater risk that alcohol will continue to build up in your blood sample due to fermentation resulting in a false and a high BAC reading.
Now, how often do you think the government screws up and doesn’t transport or store your blood in a refrigerator? The answer is way too often. Never assume your blood sample was transported following proper procedure and at a proper temperature. Instead, make them prove it if they can.
DUI Blood Sample Preservative
The last issue that we’ll discuss in the pre-test phase deals with preservative. Your blood sample is supposed to be mixed with a specific amount of preservative in the vial. The preservative called ‘Sodium Fluoride’ helps avoid excessive fermentation from happening, but fermentation can still occur even when sodium fluoride or the preservative is used.
Bottom line is, this is a big deal. There are numerous ways in which the person collecting your blood can make mistakes and take shortcuts. For example, the blood sample must have a specific ratio between the amount of preservative and the amount of blood in the vial. If you think that the folks in charge of your blood sample always follow the right procedure all the time, you’re just wrong. They don’t.
Now remember, the government doesn’t care about you nearly as much as you care about you. You’d be smart to hold the government’s feet to the fire and put in the time and effort to find out whether they did everything right just to make sure. If they did something wrong and you don’t know about it, you cannot exploit it. What you don’t know can hurt you.
Win Your San Diego DUI Blood Test Case in the Test Phase
Win Your San Diego DUI Case by Showing the Prosecution Cannot Identify Alcohol in Your Blood Sample
Now, on to the test phase. Many forensic labs today use a machine called a Gas Chromatograph. This is the machine that measures your blood alcohol level. Many labs also use a flame ionization detector or FID.
Here’s something you probably didn’t know. Despite the fact that we call it a blood test, most labs in fact do not conduct a test on your blood to see if there’s alcohol in it. Instead, they use these machines to try to calculate the amount of alcohol in the air sitting on top of your blood inside the vial. This air is referred to as “headspace”.
As the blood sits in the vial, it interacts with the air. Over time, the alcohol molecules will go back and forth between the blood and the air until it reaches equilibrium and stops going back and forth. Some alcohol stays in the air, and some stays in the blood.
Once equilibrium is reached, if you can find out how much alcohol is in the air, then you can calculate how much alcohol should be in the blood. In the lab, they run that air, the headspace, through the machine. The machine is supposed to identify the molecules or compounds found in the headspace, and then measure how much of the compound is present.
The point of a test is to determine whether there’s alcohol in the headspace. Then, if alcohol is present, it’s supposed to measure how much alcohol is present. Identify alcohol, measure alcohol. That’s what’s supposed to happen, however the machine doesn’t carry out either of those two tasks to perfection. Let’s talk about how the machine “Identifies” alcohol.
The short explanation is it doesn’t. To try to identify alcohol, most forensic labs use the flame ionization detector or the FID, as I mentioned earlier. However, there are many substances which are not alcohol, but which the FID will identify as alcohol. This happens because the FID in fact does not identify anything. That’s not even the job it’s supposed to carry out. Instead, it measures how long it takes different compounds to get from one end of the tube in the machine to the other end.
The FID says, “Okay. Alcohol is supposed to take X amount of time to get through.” Then, when it finds a compound that got through in approximately X amount of time, it says, “Aha! That must be alcohol.” The problem is that there are many other compounds that take the same amount of time to pass through the machine as alcohol, and those compounds could also be present in the headspace of your blood sample.
The list of other compounds that could be mistaken for alcohol is so long, it’s just not practical to go through here. It’s enough for you to know that the FID has no way whatsoever of distinguishing between two different compounds that take the same amount of time to get through the machine.
This all amounts to a very complicated way of saying, “it identifies alcohol in the blood sample by guessing.” Now, there is another device the government could use to better identify the compounds in your blood sample. It’s called Mass Spectrometry, but, wouldn’t you know it, the vast majority of governments do not use it for blood testing in DUI cases. Remember, the government is not on your side in any of this. It’s up to you to hold their feet to the fire if you want to fight your case.
Win Your San Diego DUI Case by Showing the Prosecution Cannot Measure the Alcohol in Your Blood Sample
Now, let’s talk about our last topic for this video, how the machine measures alcohol. When the blood test is done, the machine prints out the result. The result is called a “chromatogram.”
The chromatogram is a graphic illustration intended to depict how much alcohol is present in the headspace sample. The chromatogram is either going to be a powerful piece of evidence for the prosecutor or a powerful piece of evidence for you. It will be important in your case to have the chromatogram reviewed carefully by someone who really knows his stuff.
There are a handful of different clues to look for that will indicate either the reliability or the unreliability of the measurement … co-elution, tailing, leading, dropping to baseline, baseline separation, symmetrical peaks, asymmetrical peaks, contamination peaks, injection peaks, carry-over … I could go on and on.
I realize that these terms may mean nothing to you, but they are all things that have to be looked for to determine the validity of the test. Careful review of the chromatogram could show that the BAC test is giving a result that is higher than the actual BAC level in the blood sample. There’s really no way that I can overstate this. The chromatogram in your case matters a lot.
There you have it, four ways to potentially win your case against the government. By way of recap, you can use attack 1) the collection of your blood sample, 2) storage of your blood sample, 3) identification of alcohol in your sample, and 4) the measurement of alcohol in your sample.
These are real defenses that really work using real science to attack the weaknesses in the government’s case against you. These aren’t loop holes. This is about holding the government’s feet to the fire. Now, if they’re going to claim that you committed a crime, they better darn well be right, and you should make them prove it.
There you have it. There’s the brief summary of some of the things that could really destroy the government’s case against you.
Now, you may be thinking, “That wasn’t very brief at all.” Trust me, it’s just the tip of the iceberg. I hope you found this helpful and informative. Hopefully, it will help you decide to fight the charges against you.
Learn more:
Court Hearing Process for DUI Cases
Field Sobriety Tests in DUI Cases