How Can A Blood Draw Case Be Beaten?

Because so many elements are required in a blood draw case, there are a number of ways to beat them.

For example, whoever did the blood draw must be certified and licensed. They’re also supposed to do a proper blood draw, including cleaning and disinfecting the area, also called the puncture site.

They are also required to put the blood into special vials for forensic purposes, with a preservative and an anti-coagulant in the vials. Those vials are identified by what they call grey tops.  The meaning of the grey tops is vital for blood testing, and they can’t be expired.

Those are all the areas that we can attack with our case; if they weren’t grey-top vials, or if the puncture site wasn’t cleaned well enough, or the individual who drew the blood didn’t mix the blood sample once it was in the vial to preserve the blood, it’s possible to work to win your case.

Once the blood is taken, the samples are usually turned over to the arresting officer to be taken to the lab. However, quite often, all of this happens in the middle of the night, and if the lab is closed, they have to store the blood somewhere. Of course, they’re supposed to take it to their evidence room and log it in, so that the evidence custodians can place it in the refrigerator. However, sometimes I’ve seen blood samples sit in the evidence room for anywhere from a couple of days to 3 or 4 weeks before someone takes the evidence to the lab.

The prosecution has to account for the chain of custody, so they have to know where the blood has been and whether proper measures were taken to guarantee it’s still the same blood that they took out of my client’s arm. If we don’t know who delivered the blood from the evidence room to the lab, that’s a problem with the chain of custody.  That single issue can be used to attack the prosecution’s case and to defend the driver.

Of course, even if the chain of custody can be established, many issues and problems can occur at the forensic laboratory itself. Sometimes, there are new technicians who have not been properly trained on the standard operating procedures for the lab, and what steps the analyst is required to take when analyzing a given sample.  I have a copy of their operating manual, so I can ask them, “Did you do this? Did you take these steps? How did you do this?” and make sure they’re following their own policies and procedures. We even pull the certification or the accreditation of the lab and make sure everything is proper.

Quite often, it’s easy to uncover find mistakes in the lab’s handling of the sample, especially when a technician was in a hurry and skipped something they were supposed to do.

Even if all of that checks out, though, I will pull the maintenance records for the Gas Chromatograph Machine, because they’re supposed to maintain it, they’re supposed to service it and sometimes they’ll change parts. When they do that, they’re supposed to recalibrate it, so we look at the calibration curves and the maintenance charts to see if there were any problems with the machine and its performance on the day that my client’s sample was put through the machine.

Once again, these are more areas for attack on the prosecution’s case, and it creates more vulnerability for the test result. Even if the machine checks out, they may have analyst who are new, and not used to testifying, which means they’re more nervous and forgetful than the analyst with 25 years’ experience.

We also focus on the science behind the blood draw test, which is ripe for attack too. The technicians receive two test tubes full of blood and they take a drop or two of that blood and mix it with another compound, a different type of alcohol. Once it’s in the airtight test tube, they put it in the machine and heat that blood and alcohol mixture and use a needle to sample the gas that’s created by the heating.

It’s like if you go into Starbucks in the morning and get a whiff of your coffee and deciding you don’t need to taste it.  They’re not sampling the blood, they’re sampling miniscule amounts of the gas and looking for microscopic amounts of alcohol. That means, if there is an error of any kind anywhere along the way, it will throw the machine way off. That creates a pretty good argument for unreliability.

Even when the entire process follows every policy and procedure, the science in itself, the way they set up the machine and the way the machine runs the samples is ripe for attack. I prefer to do blood test cases for that very reason; there’s so much more to work with.

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