More Errors in State DWI Blood Testing, Oops Wrong Guy

Posted on May 4, 2011 by Stephen Hamilton

 Lubbock Texas Department of Public safety crime lab tests hundreds of samples of blood yearly from driver suspected of driving while intoxicated offenses.   If you're arrested in Lubbock or the South Plains for a DWI offense, the chances are your blood was tested by the Lubbock lab. What happens if you went to dinner and you had two drinks over say 2 hours.  You know your not intoxicated, you feel no affect of the alcohol at all.   You get in your vehicle and drive home and someplace along the way the police officer stops you for speeding.  He smelled alcohol and after a few balance tests arrested you for DWI.  You gave a blood sample because you knew you were not guilty and you were shocked when the blood test came back above the legal limit.  How could that be?  Well maybe the lab tested the wrong blood or mixed up your blood sample with another suspect.  

That is exactly what happened in California recently.  

 A young client had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, the lab also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab (the same one that botched the O.J. Simpson case) got the vial of our client’s blood mixed up and tested someone else’s blood.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type O — the same as our client’s. But, then, that’s the most common type of blood.

Next we had blood taken from our client and, along with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came back: the blood tested by LAPD was conclusively not that of our client.

With hundreds if not thousands of blood tests going thru the Lubbock lab every year for folks arrested for Lubbock DWI's I wonder how many tests would show that the sample reported was for a different person.  If only these state labs ran a DNA verification test on each we would know.  But of course why do that mistakes like that can never happen, right?  Every DWI case I have I always talk to my client about obtaining an independent blood test to check for contamination.  Now we better add a DNA test to that as well.

Tags: ,

Are DWI suspects' rights being violated by new mandatory blood law?

Posted on September 24, 2009 by Stephen Hamilton

September 1st of every odd year many new laws go into effect in Texas.

This is because our legislature meets every odd year and many laws passed by the session start of September 1st of that year.  In 2009, the legislature passed a law that allows for a "mandatory" blood test of any one suspected of driving while intoxicated (PDF) IF certain conditions are met. One of the requirements is that the arresting officer have "a reasonable belief" that the suspect has two prior DWI convictions.  

According to the release,

Senate Bill 328 allows authorities to draw blood without warrants for the following additional offenses: driving while intoxicated-3rd offense; driving while intoxicated with a child passenger; driving while intoxicated, where the officer 'reasonably believes an individual other than the suspect suffered bodily injury and was transported to a hospital or similar facility'; driving while intoxicated with a previous conviction of DWI with a child passenger, intoxication assault or intoxication manslaughter.

I'm intrigued to see how law enforcement attempts to use the law. Specifically, I'm curious:

  • How far can an officer go in his reasonable belief?  
  • What if the officer is wrong?  
  • What if the prior case against a citizen accused was dismissed or rejected?  
  • What if there was a finding of not guilty by a court or jury?  

I believe this law is unconstitutional and overreaching by the government. But what else is new these days. The government wants to take away many rights. The bigger question here is what will happen to this law, will it be upheld? I have my ideas, but as they say, time will tell.

Tags: ,