Blood Draw Issues in Driving While Intoxicated Arrests Part 5

But you’re talking about this blood, and blood contains glucose in it, and you’ve got sugars and when you combine sugars and bacteria and yeast! What are you going to have? You’re going to have fermentation with in that vial that can erroneously inflate the ethanol reading and there’s no way for them to determine was that ethanol created in the vial or was it in their blood stream at the time that they were driving.
So you got to properly invert the vial. You talk about why these things are important. These things are in there for a reason and you need to have them talk to them about that. You know the reason why the standards says this, the reason why instruction says this is because it’s important and the sodium fluoride, it used to be that they would only have 20 mg of sodium fluorides and Dr. A.W Jones which is one of the authorities at ethanol testing, one of the state’s experts that they commonly rely upon. And his writings talk about how you needed at least 100 to preserve and why? Because of all these things we’re talking about the neo formation of auto generation of alcohol, the fermentation in the vials.

So these things are important. Again here is a Becton Dickson that created a lot of these kits for hospitals use and other uses but they have different color tube tops for different types of testing and you need to make sure obviously that it’s a gray top tube and it has to be a glass tube.

So where are the blood test, the blood test kits kept? I mean these are the kits that are kept in the police car, in the trunk or in the back seats. They’re kept everywhere and who had access to them? What was the storage temperature? Obviously you’re talking about a DPS trooper’s car with the black trunk and the heat of the summer. You know those temperatures are far exceeding probably 130-150 degrees. The inserts recommend the storage of 39 to 77. The analogy here is, if you have, you know one of those spray cans, have a sun lotion and I have heard some of those things exploding in the heat in the back of somebody’s car during the summer time and, so if you think about the heat making causing things to expand. What do you think the heat is going to that grey, to that grey top! It’s going to compromise that rubber, the flexibility of it and it’s also going to cause the vacuum to loose and that’s the most important part of what’s in there, it’s not just those preservatives that are in there but also keeping out contamination and also creating that sterile vacuum.

So that’s where these blood test kits are kept and you need to talk to these troopers about that in your cross examination because these are things that jurors can understand, they get that! I mean we wouldn’t leave our groceries in the trunk of a police car in a hot summer day. We wouldn’t do that with our milk, we certainly wouldn’t drink milk after it was left there. Then how can the jurors rely upon that to convict somebody of a crime. So jurors get that and you’re going to have a lot easier time demonstrating them, making them understand that, then you’re talking about chromatograms and separation and peak retention and those types of things. They’re really not going to be that interested in that!
So going to the again to the expiration again. The contents don’t expire but it’s the vacuum that can expire. The vacuum pulls it in and again they’ll have the preservatives and the anticoagulant.

Here’s what’s important; Candida Albicans is a, basically a fungus. Fungus, it creates bacteria and fermentation. So if you add this fungus and you have sugars of the glucose it’s in the blood. You’re going to have the opportunity for this Candida Albicans, the fermentation, the creation of alcohol in the blood that was in the vial, that wasn’t in the blood stream at the time of the driving, very important!
This machine can’t distinguish between any type of alcohol, because it’s the same ethanol. It’s not going to be able to be separated by GC machine and so you’ve got a real problem there and this stuff is everywhere; it’s not some scientific medical term that’s in the books. It’s all over this room, it’s all over you, and it’s all over each and every single one of us. It’s on our skin, it’s in our mouth, it’s in our gut and so it’s everywhere and if this type of thing gets in a blood sample that’s why the potassium oxalate and sodium fluoride are there, it’s really the sodium fluoride that is trying to kill that off but if you have a certain situation, where you’ve got this in there, it’s been found that the sodium fluoride by itself is going to be insufficient, to state this off, if this creates it, if this happens! So how does it get in there? It gets in there through two ways. One; through expired tubes which you’re not always going to have or two you’re going to have an improper blood draw in the manner which the site was cleansed, in the manner in which the blood was drawn with the vacuum container, or it was improperly inserted into the vacuum container or it was done at angle or it was not pushed all the way in or when they pulled the needle out of the skin and they still got the vial attached to the needle. It’s getting sucked in there through that vacuum, so that the vial actually has to be removed and we’ll get to that here shortly.

So you’ve got the expired tube and bad draws that will cause that. So again, very very important take away from this is don’t just look at the tube for, you’re not going to really be able to see anything unless you see coagulation which I’ve had in one of the very first blood test cases I tried and they brought the tubes in there and we’ve got pictures and discovered and what we saw is it was just solid black. It was solid black! So obviously there was something wrong with the preservation of that particular sample.
Also that point time HPD for whatever reason was having, even if they came back with the 0.17 which this case was, they had it sent it off to Dallas to have blood screen check, through GCMS which is very expensive and time consuming and Houston didn’t had the resources to do it so they outsourced it to Dallas and they had to spend hundreds of thousands of dollars on doing that when they really had no need but on the day of trial, the blood files were up in Dallas they asked for continuous of the case and that ended up getting dismissed. So look for those types of things.

So, you talk about Candida Albicans and this fungus, that’s everywhere that’s present in our society, its present in our environment. There’s a study out there blooming like a two and then talking about sodium fluoride was not enough to prohibit the production of ethanol by fluoride. The fluoride was ineffective in preventing the significant production of ethanol and there are bunch of other studies out there that have sited this and there’s been a lot of research on this and so they can never eliminate this possibility if you have an error that can never wholly reject that this didn’t happened.

All that they can try to do is; we did all these other safety precautions but they can never eliminate the fact that the possibility does exist that this very well could have happened and obviously if you’ve got a video that looks very good and then you’ve got a blood alcohol result that comes back with this specific number and you don’t see what you should see at certain level, obviously this is a very easy defense to throw out there.

Again, another study that sited that this is the chain of study and talked about this Candida Albicans; the organism has been called the most common and most serious pathogen of man, the legal ramifications of this are obvious, if an organism common to man is capable of producing ethyl alcohol, in stored blood, the question arises: Are the results of alcohol analysis reflective that there are actual level of intoxication.
With this in mind, they went on to study and they talked about that. Again this study didn’t necessarily help us, they said us if it’s preserved and stored under these conditions, they didn’t have any problems. However there’ve been other studies that took away from that. Again focused on the small rise in temperature brings a marked acceleration for the degradation of glucose and lactate and ethanol concentration rises.
So the, the storage of the blood sample is vitally vitally important and so talking about preparation of the site, again once you get the blood, you’ve got to prepare before you get it. They can’t use alcohol. All the literatures says that. Now one of the things you should be talking about is isopropyl alcohol that can be separated be from ethyl alcohol when it’s done with the analysis but all the literatures says do not used isopropyl alcohol when you’re doing a blood alcohol draw.

You should also use betadine or this povidone iodine. That should be used! In the manner which they did it, is very very poor. We get the blood draw videos and those things are very very helpful. In fact those are part of the HPD standard protocol that they have to get–get a video but when they do that, we see the nurse there in the jail station, wiping it off, with some betadine and then they’ll take that cotton ball and they’re not supposed to use cotton they’re supposed to use gauze! Because if there is a rupture problem with bleeding, they need to be able to apply pressure and the cotton is just way too poor and so the gauze can, can seal it up so some of the platelets can have a problem with the cotton. So it’ll take that to clean it off instead of doing concentric circles which is there which start in the center and it’s moving in circle and move out! So you’re moving bacteria, away from the puncture site.

Additionally, if they take a stab at the vein and they missed, they need to re cleanse the site, if they keep missing, they need to re cleanse it each and every time, every time they touch it! This right here is the actual needle, this is the vacuum container. You see the butterfly needle there! You see the line, and there’s the cartridge and then the vial gets inserted in there and in the center of that cartridge, is a needle. That needle perforates that grey top tube and that’s how the blood gets directly in there. They should not be using syringe! They have to some kind of vacuum container kit like this.

They can’t use the direct syringe, and if they do, they’re not supposed to do that for the safety reasons for the patient. But if they do they’ve got to then take that syringe and push it to the grey top tube of the vial, and put it in there.
So the site preparation; They’ve got to do the concentric circles pushing the germs away! One of things I talked about is when they use that, they use those cotton balls and cleaned off the arm, and then put it there and then when the needle comes out they take that same betadine germ infested cotton ball. The same part that they cleaned with and they put it over that needle and then push it down, pull the needle out and then put a piece of tape over it.

So what did they do they just took all the germs they cleaned away, put it on the needle that can get into the–not only into the vial and could get the risk of infection and pain, that was referred to in the Schmerber case. All they’re doing is subjecting them to, you know unjustifiable risk and pain. So that can go into with your photo of big giant bruise. You could certainly make some head way.
Again this article I talked about with blood draws. There’s a blood alcohol testing in the clinical laboratory and they also talk about Dr. Kurt Dubowski at of Oklahoma, again another one of the big forensic scientist in alcohol cases that is commonly teaching up in Indiana at the Borkenstein School. One of the big state’s experts that all these peoples will come into your court rooms and recognize Doctor Jones and Doctor Dubowski are expert authorities in the field of blood alcohol testing! Doctor Dubowski had a really really good article and it was in this article when I found it.

So its number 1 of; avoid the use of isopropanol alcohol. I don’t think there’s probably anybody in this room or watching this that didn’t already know that but 2; Use only dry sterile gauze pads, not cottons balls but gauze over the puncture during needle removal. That is really really important because what I’m about to show you here in a second is there is one kit, I believe it’s a tri tech kit. These blood test kits are made by different manufactures, there’s Becton Dickinson, there’s Tri Tech, and there’s NIK, there are several others out there and they have instructions in there and some of the instructions are ironies. And Doctor Dubowski talks about covering the puncture side during needle removal and when you remove the needle it’s very very important as what we just discussed.

You have to remove the needle and holder before removing the needle from puncture site. Meaning, the vial has to come out of that container with the butterfly needles attached to it, it must be removed from there before the needle and the arm gets removed. Again the reason why, is because if you remove it that time, you’re sucking in an outside air, outside contamination, they gets into that vial which shouldn’t be there. The only thing that needs to be in that vial is the sodium fluoride, potassium oxalate and blood.

So this is very very important because if you look at this, this is the NIK instructions. And they talk about instruction number 8: When sampling is completed, immediately remove the needle holder assembly in the last Vacuum container then remove the tube from assembly. That’s exactly what doctor Dubowski says; DON’T DO!

So you need to be looking at these things if you, you know, through our discovery. I mean, discovery just got turned upside on its head with the Michael Warren act and what, what a huge development for us. We’re going to be able to get all this stuff the beginning of the next year! And the jurisdiction I practice Troy Mckennie and others got with the crime labs collectively. There are several other lawyers involved but Troy did the line share of work and we agreed, sat down over the course of several days and talked about what’s important, what they need to give us and we talked to them the sentiments I talked about when they did these no refusal weekends, and they didn’t get the fun in and everybody else got. That’s where that statement came from. And they were up in arms about not having the resources the man power to handle the volume of blood draw that are coming in.

So, again Dr. Dubowski, it has been documented the changes produced by contaminating microorganism can effect alcohol concentrations in blood specimens even in the presence of preservatives. They are experts! Candida Albicans was particularly active in this regard, producing significant quantities of alcohol, even in the presence of sodium fluoride. So this is not just some Hocus Pocus drop on the wall defense tactic, it’s very real and it’s been out there in the science long before we ever thought of bringing it in to court rooms.

This is the Becton Dickinson chart here talking about when you’re inserting the vial in then, this happens at fair amount. These needles, they do have a little bit of flex to them. The first is obviously the correct way going all the way over the needle, going all the way further into the wall of that, if they pushed it in sideways that’s incorrect coz that’s allowing outside air and contamination to come in. I mean if they only partially push it in, it has the ability to bring in other air and contaminates, very important.

So you need to be talking to these nurses or to phlebotomists, venipuncturists, whatever you want to call them, medical technicians. I guess that’s going to be acceptable now. So be talking to them about how that they, they handle these things. Again the inversion’s very very important to do 8 to 10 times! What you’re doing there is you’re mixing the blood with these preservatives that are inside there and you don’t want to be shaking it because if they shake it, it changes the blood. What I mean changes the blood, if you think about blood as being a raw egg, and you put it into a glass jar before you scramble it to make your breakfast. You’ve got the egg and if you’re wanting to test whole blood, which is what we’re testing in ethanol or wanting to test whole blood, we don’t want to transform those eggs, as in analogy goes. You know let’s say you wanted to test solely the yolk! And that would be analogist to whole blood and that you basically shake up those eggs or stir me up and now you got the egg, the egg all scrambled up.

Now you’ve got something differently so what are you testing isn’t going to be whole blood and that’s what we test. So when you do that, when you shake, you can cause Hemolysis and Hemolysis can happen for a number of different ways but when you have Homologized blood, you have ruptured blood cells and it happens very easily. I mean there are human organisms that can get transformed and again this is Becton Dickinson 8 to 10 inversions and again tech talk, this is one of their newsletters, one of their scientific journals; Vigorous mixing or shaking of a specimen may cause Hemolysis.

Well, what is Hemolysis? Well that’s the rupture breakage of red blood cells, causing release of Hemoglobin and other internal stuff to get out there and so basically you’ve transform the blood, you’ve taken a whole blood sample and created into a molasses. Other ways that you can do that is to using two small gauges with needle. We are causing force on these red blood cells getting sucked into this needle. And it’s basically analogist to a fire driven. All of us had to go out of that exit over there and it would be too many people would be getting crushed and then the opposite is using two large gauge of a needle where as if we had force behind us when we were pushing this out. Again it could cause rupture of the blood cells.

So, talking about what are the causes of Hemolysis and there they are right there. I put them up there so you could see them a little bit better. You’ve got shaking of the tubes or mixing it too vigorously. You’ve got rough handling during transport which is always there specially if it’s mailed. And then you’ve got improper choice of the site if they use the wrong site they can go to the wrong place and potentially cause hemolysis. Also tourniquet, when they use to tourniquet! The tourniquet there is to make the vein more visible to allow a proper insertion; they only have to stick in one time. And then as soon as the blood starts to flow they should release the tourniquet. If they leave the tourniquet on, it’s restricted in that flow of blood and it’s having the same effect as if the blood’s getting sucked through a small needle. It’s being transformed and it’s being, its shrinking down the vein coz its putting pressure on it. You’ve got the blood pressure on the back of this forcing, that blood to that vein is partially collapsed and then you’ve also got basically fishing the vein, where they’ve got they are pushing it in the vein, they’re pushing in the vein. And what can happen is they can put, they can actually puncture the vein. But let’s say there’s the vein and they’re right up against the cell wall, and so they’re up against it and again its sucking that, that blood into that needle. Again it’s causing it to be transformed, causing it to break down. Here’s why that’s important. We talk about whole blood and then you have hemolysis! You basically have a changing of that sample and here’s why this important. In hospital blood test and I don’t call them hospital blood test because they’re really not blood! It’s serum and plasma.

What they do in the hospital, they take blood. They put it in the center fusion and they spin it down. And they create the separation between red blood cells and rest of the blood. In the while you’ll see all the red down at the bottom and you will see kind of a viscous fluid on the top, and that is what they test! They do a different type of test. They use a very quick screening test called the enzymatic test, enzymatic multiple amino acid test or EMAD for short! And it is very quick it’s a screening test and it’s only reliable to tell you what is there but it really doesn’t test ethanol! They doesn’t measure the concentration and when they’re testing this serum or plasma and not whole blood.

When test serum or plasma, it has a higher concentration of water and what that means is alcohol has infinity towards water and so any time you test anything it has a greater concentration of water, you’re going to have a higher concentration of ethanol, because of alcohol’s infinity of that water molecule and so hospital blood test or plasma/serum test will have anywhere from 15% to 20% to as high as 59% higher, then the actual whole blood test and the only way for them to truly know and they would have to do conversion ratio. The only way that they could truly know about it is if they test the hematocrit and that would give them a better gauge to determine which ratio to apply. Generally speaking, the accepted range is 15 to 20 but again we are all different at different points in time during the day our hematocrit is, you know, increasing and decreasing throughout the day. So you’re going to have, you’re not going to know which one to apply.

Obviously the ratio of 59% greater is certainly been helpful to us many many types. Think about this at again, it is a screening test, it’s not done twice, it’s not confirmed. Which means it’s not scientific! And all of those results we’ll see at the bottom, not be used for forensic purposes. Because it’s not a confirmatory test, meaning is it’s not repeatable which takes away any scientific reliability and the validity. So it’s a Clinical versus Forensic. And the way to fight these in the court rooms to write them up on your isle. Clinical versus Forensic and then you’ll have some experts that will come in there to testify about this conversion ratio. But the majority of those people have never ever drawn a blood sample. In my experience when they’ve done that they brought in a DPS technical supervisor if you don’t have any experience with blood. They generally have some kind of science degree, never had any involvement with blood. Yet their rendering opinion solely based upon what they just read in the article. They’re really not an expert in that area because all they’re doing is parenting what they have read in this article. They’re not really rendering an opinion; they’re just repeating what they’ve read! So again it’s a screening test, it’s not confirmatory.

Again its reaction, because they use Reagents and there are other things that cause the same reaction. Lactic acid, if you’ve been involved in an accident which majority of our clients to go to the hospital have been involved with! They can form lactic acid; we get it when we run. When we run too hard or we run too fast, we get this buildup of lactic acid which makes our muscles build up. If you have shocker trauma, if you get lactated ringers in the ambulance on the way to the hospital. You’re going to have more lactate in your blood which is going to cause the same reaction. Which is why it’s not a reliable test? Hospitals use it just to get a general snapshot, just a picture of how they’re going to administer medical attention and/or medication to a suspect! Pardon me, a patient not a suspect. So look at your chain of custody documents, it’s got to be stored in a refrigerator. The box has to be sealed. Again the blood is analogist to milk that’s how we get jurors to understand it, raw eggs, milk. You wouldn’t leave it out there on the counter for 8 hours. Yet some of these things are being done and left out even over and I did it in the crime lab! And you’ve think about this stuff when they are doing this analysis, they are preparing this batch, its very time consuming. It’s a monotonous pain sticking process that really takes them the majority of the day. And what do they do right before they leave! They press start and the GC goes to work. If you look at the times on you’re chromatograms of your client’s sample and once before after some times these things are being tested at one two or three o’clock in the morning.

When the analyst is already checked out of the crime lab for the day, though these are the very important things for juries to see. So they need to refrigerate the sample at 4 degree Celsius. If you want to learn more about gas chromatography, TCDLA has this seminar in November in this fine city San Antonio and that will be nov7th and 8th. You can learn a lot more about the analysis. Discovery! You have got to look at all the chromatograms in the batch. Batch is important; it’s not just your client’s sample. You need to make sure they’re not contamination carry over, that everything was properly done. And you can see a glitch if they had problem over here and they’ve changed the chromatograms and done something wrong here, and you can look at that and say; Well, if something wrong happen there, how do we know it didn’t happen with the rest of the batch! You need to use public information at request to get ASCLD’s. The ASCLD’s audits ‘’The American society of crime lab directors’’. They go in and they audit these crime labs and those things are a gold mine! An absolute gold mine! One of the Texas department of public safety in Austin, their breath in alcohol, Pardon me, their alcohol and drug section, they had so many insufficiencies that they weren’t even following, just a bare minimum guidelines to maintain their accreditation.

What you would think what you would hope, would be one of the best crime labs in the state, being in our capital was one of the worst. And so if you look at those things when you get those, you’re going to have, it’s going to be, you’re going to be able to demonstrate things aren’t been stored properly. Things aren’t been done properly. They don’t have the resources to do what they need to do and they do go through their financial resources and say they’re insufficient to handle this volume.

So, these things are very very helpful as I’ve tried a few of these and I am telling you when jurors hear, when things aren’t being done the way they should have been done. They’re not going to give it the way that the state wants them to give it. Again they are free to accept or reject all of this evidence and you’re in the business to provide in with a reasonable doubt to reject that evidence. So looking for separation, this is the standard blood test discovery order I discussed earlier. I have given you the whole thing in your paper. I think this will probably spread like wild fire, hopefully throughout the state. In other jurisdictions I know some others that have already implemented this but it’s very very helpful for you getting this and of course to the Michael Mortin next year, we’ll be able to get a lot more just through a simple request.

Again the ASCLD audits and the DPS responses, you’re talking about toxicology quantitation procedures don’t specify the control samples or what constitutes an acceptable calibration curve. This is the very first thing that they do before they do an analysis and if you can’t establish a calibration curve, every number you pick, how do we know that that’s the true value?

How do we know that that’s reliable? How do we know that number really means anything? You say it means this! It’s a moving target if you will. Laboratory doesn’t do proficiency testing. They also weren’t doing or providing them with performance evaluations, that’s what’s this and then they had to implement that.

They talked about containers in the bulk storage in high security vaults have been sealed but the seals have become loose. You know we talk about this and it’s not really academic to us. This just happens! Crazy stuff happens, and it happens there in the crime lab too! They talk about going down to that bottom one, does each examiner possess a baccalaureate degree with the science courses. Some examiners do not possess with degrees with science courses. They’re just putting any old Tom Dick and Harry in there and asking them to carry out these things which they don’t have the qualification to do it.

Further they talk about funding and inadequate funding. I think that’s vitally important and I don’t know, we have Houston police department crime lab to kick around and that’s very easy to do, but man they have got more problems over there and they can’t even identify! So you need to go and visit the draw site. If it’s not done in the hospital, if it’s done down in the police station and you’re fortune enough to have an expert, take your expert with you! This is the Houston police department chair. It’s got Velcro straps on it, there’s a desk there. You can see the blue gloves; you could see tapes that they’re using to put over the cotton gauze. And then you also need to go down to the crime lab. This is HPD crime lab. That’s my favorite part. It talks about receive, analyze, preserve physical evidence while adhering to the highest standards of quality, objectivity and ethics and then you turn the corner and you look at their GC machine and you see that their objectivity goes straight out the window and they have all these mad propaganda signs up here. I mean who are they ruining it for?

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez