Blood Testing In Michigan Drunk Driving Cases

Blood testing seminar by William Maze

Screen shot Introduction to Blood Testing in Drunk Driving Cases

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Advantages & Disadvantages of Blood Testing

Advantages: Blood testing is often times referred to as the "gold standard" for making a forensically sound determination of a person's blood alcohol level. Blood testing is a direct measurement of the subject's actual blood, so there is no need to extrapolate the result based upon any type of biological conversion factor.

Disadvantages: Blood testing is not convenient, and it requires additional time for the officer to transport the subject to a medical facility. The longer it takes to draw the blood sample, the less relevant that test is to the actual offense. Most forensic scientists agree that a test must be performed within 2 1/2 hours to be relevant, although Michigan courts do not exclude test results based upon time.

Blood testing requires properly trained medical personnel due to the increased risk of infection and transmission of various blood borne illnesses. Blood testing is also extremely intrusive and may be painful. If a person is really guaranteed the right to be free from unreasonable search and seizure, it seems that there can be no greater violation than drawing a person's blood to use the contents of that blood to incriminate him or her.

Blood testing is expensive. In order to properly analyze a blood test sample, the Michigan State Police employ about a dozen laboratory analysts in Lansing. Each of these technicians are paid an annual salary that adds up significantly over time. Moreover, these technicians require expensive equipment. Blood samples must be properly stored in expensive laboratory grade refrigerators. The instrument used to test for blood alcohol levels costs approximately ten times as much as a breath machine, and the state requires more than one of these devices. The instrument used to test for the presence of drugs costs ten times more than the alcohol testing instrument, and yet another instrument is used to perform preliminary drug screens.

Blood testing requires too many witnesses at increased expense. Since a person charged with a crime has the right to confront witnesses in court, laboratory technicians must travel to remote courts from Lansing every time a case proceeds to trial. The medical personnel who drew the blood must also appear at trial. Without these witnesses, the prosecutor is unable to introduce the blood test result.

The reliability of the blood test relies upon a state employed witness who is often times biased. The Michigan State Police's laboratory analysts are tagged as "experts" by prosecutors across the state, and even the Michigan State Police grant them the title of "forensic scientist" as opposed to "laboratory technician." Given that these people are frequently dragged to court at the insistence of defense counsel, they develop an adversarial relationship with the defense bar, whose job frequently involves an attack on the forensic reliability of the test. As a result, the lab is not open to inspection by the defense, and the lab is hostile to disclosure of relevant documentary evidence. The technicians have not received advanced degrees in toxicology, but they are familiar with resources that tend to support a prosecutor's argument. In other words, they are prepared to advocate a position that supports an inference of guilt, even though the underlying should be objective and dispassionate.

Blood testing takes too much time. Given that all blood samples must be transported to Lansing, the shipment of the blood sample takes time. Depending upon the number of samples received, the lab might be backed up when a sample is received. During the transportation phase and while the blood awaits testing at the lab, fermentation may occur in the sample. Glucose present in the blood may ferment and change into alcohol that is otherwise indistinguishable from alcohol that subject may have consumed.

Disadvantages of Hospital Blood

Hospital blood is introduced in only a limited number of cases, particularly when an accident requires treatment and blood is drawn for medical purposes. Nonetheless, this blood test is usually performed within a few hours of the driving, and the analysis is made available for doctors to use in deciding an appropriate form of treatment. Some of the primary problem with hospital blood involve the testing method. Hospitals do not employ the same equipment used in Lansing. Speed is more important than accuracy when it comes to hospital blood testing. The hospital forms that detail the blood alcohol test results typically contain a large, prominent disclaimer that, "These results are not for legal purposes." It seems on its face that there might be problem with using something for legal purposes when it makes these specific disclaimers.

Hospital blood is generally not intended for legal purposes because trauma can lead to bizarre alcohol readings. If a person suffers an injury, chemicals are released in the body that might be construed as if those chemicals were alcohol by the testing method employed by hospitals. Similarly, the introduction of certain fluids (known as ringers lactate) into the body by hospital staff will also result in an apparently positive alcohol reading, even if no alcohol is actually present in the body.

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Administrative Rules for Blood & Urine Testing

Michigan State Police Forensic Science Division Rules for Blood Testing

 

DEPARTMENT OF STATE POLICE

FORENSIC SCIENCE DIVISION

ALCOHOL AND DRUG TESTING OF BIOLOGICAL AND NONBIOLOGICAL SPECIMENS

(By authority conferred on the department of state police by section 190 of 1945 PA 327, MCL 259.190, section 625a of 1949 PA 300, MCL 257.625a)

R 325.2671 "Control sample" defined.

Rule 1. "Control sample" means a sample of known concentration that is used to verify the calibration and accuracy of a given analytical method.

History: 1993 AACS; 2005 AACS.

R 325.2672 Tests; application; expression of results; filing.

Rule 2. (1) Tests to determine the presence or concentration, or both, of alcohol or other drugs, or both, may be applied to blood, urine, or other biological samples. Results of blood alcohol analysis shall be expressed in percent weight of ethyl alcohol (weight per unit volume) equivalent to grams per 100 milliliters. Results of urine alcohol analysis shall be expressed as weight per unit volume of ethyl alcohol, equivalent to either grams per 100 milliliters, or grams per 67 milliliters. Where applicable, results of analysis for drugs or other volatiles shall be expressed as weight per unit volume.

(2) Serum or plasma alcohol concentrations shall be expressed as an equivalent whole blood alcohol concentration.

(3) Tests to determine the concentration of alcohol may be applied to nonbiological samples. Results shall be expressed in percent volume of ethyl alcohol (volume per unit volume).

(4) At least 1 copy of the written method or methods or techniques that are utilized in the laboratory shall be on file in that laboratory.

History: 1993 AACS; 2005 AACS.

R 325.2673 Acceptable techniques.

Rule 3. The following are acceptable techniques and analyzers for determining the presence or concentration, or both, of alcohol and other drugs in blood, urine, or other various matrices or media.

(a) Direct distillation/dichromate oxidation methods as follows:

(i) "Dubowski and Withrow," Proc. Am. Acad for Sci, 2:323, 1952.

(ii) "Shupe and Dubowski," Am J Clin Path., 22:901, 1952.

(b) Gas chromatograph method using a gas chromatograph that has satisfactory accuracy, precision, sensitivity, and a suitable column for direct injection or head-space gas chromatography for ethyl alcohol and other volatiles.

(c) Gas chromatography/mass spectrometry method using a gas chromatograph and mass spectrometer that have satisfactory accuracy, precision, sensitivity, and a suitable column for direct injection or head-space gas chromatography for identification of drugs or compounds other than ethanol.

(d) Spectrophotometric methods as follows:

(i) Williams, Louis A. Manual of Analytical Toxicology, I. Sunshine ed., CRC Press, Cleveland, OH, 1971, pp. 309-312.

(ii) Freireich A. et al. Methodology for Analytical Toxicology, I. Sunshine ed., CRC Press, Cleveland, OH, 1975, pp. 67-69.

(e) Enzymatic and immunological methods as follows:

(i) "Stiles, et al.," Am J Clin Path., 46:608, 1966.

(ii) "Bonnichsen and Lundgren," J Acta Pharmacol Toxicol., 13:256, 1957.

(f) Analyzers as follows:(i) Abbott Diagnostics AxSym Autoanalyzer and reagent systems.

(ii) Randox Evidence Biochip Array Analyzer and reagent systems.

(g) Analyzers or kits employing indicator-labeled immunoassays in which an indicator is attached to an antigen or antibody to demonstrate that antigen-antibody binding has occurred, thereby allowing measurement of a drug or other compound in a sample. These include the following:

(i) Enzyme immunoassay (EIA), in which an enzyme is used to label an antibody or antigen.

(ii) Enzyme-linked immunosorbent assay (ELISA), in which an enzyme-labeled antibody or antigen competes in binding with an unknown substance.

(iii) Enzyme-multiplied immunoassay technique (EMIT), which is a form of EIA used frequently for assays of drugs and hormones, as well as for viral antigens.

(iv) Fluorescence immunoassay (FIA), in which a fluorescent label is used in a competitive-binding assay.

(v) Fluorescence polarization immunoassay (FPIA), which employs fluorescent indicators that produce or detect the polarization of light.

(vi) Radioimmunoassay (RIA), which employs a radiolabeled antigen or antibody.

(vii) Chemiluminescence, in which analyte binding to an antibody is coupled to the chemical production or reduction of light output.

(viii) Any assay that uses a combination of the techniques in paragraphs (i) to (vii) of this sub-division.

History: 1993 AACS; 2005 AACS; 2011 AACS.

R 325.2674 Calibration.

Rule 4. Calibration of the method or equipment used to test for alcohol or other drugs for which quantitative analysis is performed in blood, urine, or other biological or nonbiological samples shall be verified through the use of control samples each day that tests are run. Results of the control samples shall be documented and retained by the laboratory for a minimum of 1 year.

History: 1993 AACS; 2005 AACS.

R 325.2675 Collecting and handling antemortem blood and urine samples.

Rule 5. (1) All antemortem blood and urine samples shall be collected pursuant to section 625a of 1949 PA 300, MCL 257.625a.

(2) When collecting a blood sample, the individual drawing the sample shall use an aqueous solution of a nonvolatile antiseptic on the skin of the person from whom the sample is being collected. Neither alcohol nor any alcoholic solution shall be used as a skin antiseptic.

(3) Blood shall be drawn pursuant to either of the following provisions:

(a) With a sterile dry needle that is evacuated into a vacuum-style specimen tube that contains the solid preservative sodium fluoride, whether used alone or in combination with other preservatives or anticoagulants.

(b) With a sterile dry needle and syringe expelled into a clean specimen tube that contains sodium fluoride. The tube shall then be capped or stoppered.

(4) Urine shall be collected pursuant to the provisions of form FSD-93, which is contained in the department of state police specimen kit. Urine shall be collected in a clean glass or plastic container. The sample shall then be transferred into a clean glass or plastic container that has a secure top.

(5) Blood and urine collection shall be witnessed to ensure that the sample can be authenticated. Each sample shall be labeled.

(6) Samples that are sent to a laboratory shall be sealed in a manner that ensures their integrity.

History: 1993 AACS; 2011 AACS.

R 325.2676 Rescinded.

History: 1993 AACS; 1996 AACS.

R 325.2677 Rescinded.

History: 1993 AACS; 1996 AACS.