26th Annual Rusty Duncan
Advanced Criminal Law Course
June 13th-15th, 2013
Henry B. Gonzalez Convention Center
San Antonio, Texas
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Topic:
Blood Draws
Speaker: Doug Murphy Contact information
2000 Smith St
Houston, TX 77002-8652
713.524.1010 phone
713.524.1080 fax
[email protected] email
5/20/2013
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Blood Draw Issues
DOUG MURPHY
Trichter & Murphy, P.C.The Kirby Mansion
2000 Smith St.Houston, Texas 77002
Why challenge blood? DWI is an opinion crime!
The blood estimate is still an opinion!
Bullcoming & Melendez-Diaz – right to confront all witnesses who prepared, collected, preserved, transported, prepared, analyzed specimen, and who maintained machine used to analyze blood
Why challenge blood? Blood involves too many humans working
late night early hours on little sleep = prone to many errors
Most errors happen before the blood is analyzed = pre-analytical error
The focus of this presentation
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Preview
1) The Law – a couple SCOTUS cases
2) From the Vein…
3) …to the Lab
The Law
Missouri v. McNeely, ____ U.S. ____ (April 13, 2013)
In DWI investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a warrantless blood draw
McNeely applied to Mandatory Blood Draw Situations 724.012(b)?
DWI accident involving death;
DWI accident involving serious bodily injury;
DWI accident involving bodily injury with medical transport or treatment;
DWI committed with a child passenger younger than 15 years; or
At time of arrest, 2 final DWI convictions; or a final conviction for DWI with a child, Intoxication Assault, or Intoxication Manslaughter.
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McNeely applied to Mandatory Blood Draw Situations 724.012(b)?
Lawyers must be prepared to establish the ease, efficiency and speed that law enforcement obtained blood search warrants in other cases.
Use PIA to establish statistics on issuance of search warrants.
State will always make exigent circumstances pitch
Schmerber v. California
Authorized warrantless blood draw according to accepted medical practices by medical professional in medical environment with exigent circumstances
Schmerber v. California
Warrantless search must be supported by probable cause
Exigent circumstances where delay in obtaining warrant would result in destruction of evidence
Employ a reasonableness test
Executed in a reasonable manner, i.e., according to reasonable “means and procedures”
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Schmerber v. California
We are thus not presented with … if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
Reasonableness test
Accepted medical practices
Schmerber v. California
We are thus not presented with … if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
Reasonableness test
Accepted medical practices
Beeman v. State,
86 S.W.3d 613 (Tex.Crim.App. 2002)
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Police officers . . .turn into Vampires
Accreditations
SOFT – Society of Forensic Toxicologists
CAP – College of American Pathologists
ABFT – American Board of Forensic Toxicology
ISO 17025 – Most important!!!!!!
Texas Blood AlcoholTesting Regulations
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
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American Society of Crime Laboratory Directors (ASCLD)
Collection
Transportation
Receiving
Storage
Analysis
Reporting
Blood Collection
Procedure for the Collection of Diagnostics Blood Specimens by Venipuncture; Approved Standard – Fifth Edition
NCCLS
Blood Collection
Major causes of “laboratory error” can be related to nonanalytical factors such as specimen collection, handling, and transport.
NCCLS P. 2
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3 Categories of Error with Blood
1) Pre-Draw2) Blood Draw3) Post Draw
Pre-Draw: Blood Test Kit
Defending Blood Tests
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Pre-Draw: Blood Test Kit
DPS Blood test Kit Instructions
Step #9: Protect the specimen from extreme temperatures
In absence of kit, use medical “gray top” tube. Package must comply with all postal regulations…
Pre-Draw: Blood Test Kit
Gray Top Tube
In absence of kit, use medical “gray top” tube. Package must comply with all postal regulations…
Grey
Pre-Draw: Blood Test Kit
Used for Glucose Determinations.
Sodium Fluoride is the preservative (antiglycolytic agent).
Potassium Oxalate or EDTA are the anti-coagulants.
Proper number of inversions at Blood Collection: 8
© 2013 James Nesci
5/20/2013
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Pre-Draw: Blood Test Kit
Postal regulations include protective containers, absorbent materials; and biohazard warning labels.
To maintain integrity of sample, a temper evident seal and proper labeling must be used
Grey
Pre-Draw: Blood Test Kit
Clotting is a “cascade effect” chemical reaction.
Potassium Oxalate & EDTA bind to the calcium in the blood, which stops the clotting cascade.
Sodium Fluoride only prevents glycolysis—
the breakdown of sugars.© 2013 James Nesci
Dr. A.W. Jones
“20 mg sodium fluoride is an insufficent amount of preservative for forensic blood samples; at least 100 mg should be used.”
Journal of Analytical Toxicology, Vol. 18, Sept. 1994
5/20/2013
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The BD Vacutainer
®
Venous Blood Collection Tube
Guide Wall Chart
(Representing 14 Colors)
© 20013James Nesci
Pre-Draw: Blood Test Kit
Where blood test kits kept?Are they secured?Who had access to them?Storage temperature?Most inserts recommend
storage of 39 – 77 F (4 - 25 C)
Hospital Serum/Plasma v. Whole Blood
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Hospital Serum/Plasma v. Whole Blood
Pre-Draw: Blood Test Kit
Expiration Preservatives in the vial do not
expire, but the vacuum seal is what expires
Vacuum pulls blood into the vial Gray tops have preservative
(sodium fluoride – 100 mg) and anticoagulant (potassium oxalate –20 mg)
Pre-Draw: Blood Test Kit
Candida Albicans
Yeast + Sugar = EtOH (Fermentation)
Indistinguishable from the EtOH (allegedly) consumed by your client.
© 2013 James Nesci
5/20/2013
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Pre-Draw: Blood Test Kit
Candida Albicans
How does it get into the tube?
Expired Tubes
© 2013 James Nesci
Pre-Draw: Blood Test Kit
Expired Tubes:Preservative & Anti-Coagulant do not “go bad.”
But the Grey-Top Stopper may “go bad.”
Watch for partially filled-tubes
(i.e. 4 or 5 mls of blood in a 10ml tube).
© 2013 James Nesci
5/20/2013
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Pre-Draw Issues with Blood
© 2013 James Nesci
Pre-Draw: Site Preparation
What manner? Concentric circles starting in center pushing bacteria and germs away from puncture site
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Pre-Draw: Site Preparation
Blood Alcohol Testing in the Clinical Laboratory; Approved Guideline. NCCLS
Kurt M. Dubowski, Ph.D.
Dr. Kurt M. Dubowski
3 Precautions:
1) Avoid use of isopropanol to cleanse site;
2) Use only dry sterile gauze pads for covering the puncture site during needle removal.
Dr. Kurt M. Dubowski
3) Remove tube from collection needle and holder before removing needle from puncture site
Contamination of Blood Specimens for Alcohol Analysis During Collection
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Dr. Kurt M. Dubowski
3) Remove tube from collection needle and holder before removing needle from puncture site
Contamination of Blood Specimens for Alcohol Analysis During Collection
2nd Tube Contamination
Instruction No. 8
This is EXACTLY how NOT to do the blood draw!
It will cause contamination of the 2nd tube!
© 2006 James Nesci
5/20/2013
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1. Correct:
Tube is properly centered.
2. Incorrect:
Improper insertion resulting in incompletely punctured stopper
hi h ld k i
Collection of Blood Specimens
…it has been documented that changes produced by contaminating microorganisms can affect alcohol concentrations in blood specimens even in the presence of preservatives. Candida albicans was particularly active in this regard, producing significant quantities of alcohol even in the presence of sodium fluoride.
Post Draw – Vial Inversions
Invert vial 8-10 times
Do not shake – can cause hemolysis
Hemolysis transforms the blood
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Hospital Serum/Plasma v. Whole Blood
Hospital “blood test results” are not the same as whole blood results
Hospital does not test blood, just the serum or plasma, which contains more water.
More water = higher alcohol concentration
Hospital method is enzymatic assay test (EMIT), not gas chromatography like a forsensic crime lab
Clinical v. forensic
Hospital Serum/Plasma v. Whole Blood
Hospital is a single sample screening test
Reactionary test, does’nt measure alcohol concentration
No confirmation done – not repeateable Sample generally not preserved Requires conversation ratio based on
hemotocrit = 15 % to 59 % higher BAC estimation
Post Draw – Transportation & Preservation
Look for chain of custody documents Should be stored in refrigerator Box must be sealed Blood is a human organism that will go
bad like milk if left unrefrigerated
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Post Draw – Refrigeration
Post Draw – Analysis
To learn more about Gas Chromatography:
Stu Kinard Memorial Advanced DWI Seminar
San Antonio November 7-8, 2013
Discovery
Must get all chromatograms from the batch in which your client’s sample was tested
Analogy is breath test slips 30 days before and after your client’s test
Use PIA to get lab audits from DPS and ASCLD if judge wont give you want you want in discovery
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Discovery
Use discovery or PIA to get lab protocol Did they follow their standard operating
procedure? Is there separation on the
chromatograms?
Discovery
Thank you Troy McKinney!
Discovery
Thank you Troy McKinney!
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Discovery
Thank you Troy McKinney!
Discovery
Thank you Troy McKinney!
Discovery
Thank you Troy McKinney!
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