Dec 12, 2016 Virginia DWI defense- Attacking the DFS and hospital blood alcohol analyses
In some Virginia DWI/DUI prosecutions, the police happen upon a car crash situation where the suspected drunk driver is unconscious and taken to the hospital by ambulance. Where the police do not then obtain a blood sample of the suspect pursuant by search warrant or consent pursuant to McNeely v. Missouri, the police or prosecution might try to obtain the suspect’s hospital records through a search warrant or subpoena.
The defense should be ready to move to quash the warrant as for any available grounds that are available, and should object to the issuance of a hospital records subpoena, tracking the statute that covers such objections.
If the prosecution does obtain records on the hospital’s analysis of the suspect’s blood for alcohol and/or drugs, the defense can still argue whether the test results are admissible into evidence, the blood chain of custody has been established, the hearsay and Confrontation Clause rules have been met, the testing comports with the law and procedure governing the Virginia Department of Forensic Science, and the blood test results are reliable.
Based on my discussions with a forensic toxicologist I have worked with many times, and my own ideas, I list the following items to consider in challenging hospital analyses and DFS analyses of blood for alcohol and drug content:
– The hospitals ordinarily are looking for general blood alcohol and drug levels. Therefore, the results are less reliable that DFS analyses.
– Did the hospital swab the suspect’s arm with alcohol rather than such a non-alcoholic liquid as iodine before sticking the blood draw needle into the suspect’s arm? Hospitals commonly swab with alcohol because it is so readily available and inexpensive, but doing so can elevate the blood alcohol test result. The DFS-supplied blood draw kit provides iodine.
– Hospitals typically use blood plasma or serum rather than whole blood in testing for blood alcohol content, unless using the DFS protocol for whole blood. Using plasma or serum will elevate the blood alcohol test result versus maintaining the blood as whole blood. Even this 2013 report (page 20) for a prosecutor’s organization admits that a conversion from serum or plasma to whole blood should be made by dividing the serum or plasma test by 1.14 to as much as 1.20. This article lists conversion ranges reaching as high as 1.26.
– Was the suspect receiving intravenous fluid soon before or during the blood draw? The intravenous fluid could include lactic acid, which will elevate the blood alcohol test result.
– Did the hospital make available or preserve a sample of the suspect’s blood, so that the suspect’s lawyer may have it analyzed at a private forensic science laboratory? Va. Code § 18.2-268.7. With margins of uncertainty, for starters, the private lab may conclude a lower blood alcohol level than the result from the hospital or DFS.
– Did the hospital provide the margin of uncertainty — and a reliable margin at that — for its test result?
– Did the hospital use mass spectrometry or gas chromatography in its analysis, rather than only using a reagent test? If not all three analyses are used, the test result is unreliable. In a recent trial, the DFS forensic toxicologist confirmed that he had not employed mass spectrometry in his testing of my client’s blood. All three tests are commonly used by police chemists in testing for allegedly illegal drugs outside of blood content. Nothing justifies using fewer than those three tests in testing for alcohol and drugs in blood.
No matter how damning blood test results may initially look for DWI cases, the defense must tear those results apart as much as possible.