DUI Survival Guide - How to Beat the Blood Results
In Michigan, police officers will use either a blood or a breath test to obtain a BAC reading from the alleged drunk driver. Blood tests are considered to be more accurate, but are used less, because they take more time and resources. Blood is more common in personal injury and accident cases, and are used when the arrested person refuses the breath test, which triggers, the Implied Consent Law.
If there has been an accident and blood is drawn for medical purposes, the police can seek to obtain the blood test results directly from the hospital, but hospital blood tests pose other challenges because hospitals usually test only serum rather than whole blood.
In order for the prosecutor to use these blood draws, the prosecutor must show the following rules apply:
It is also universally acknowledged that the blood alcohol concentration is higher when drawn for medical purposes. Some studies finding it will be up to 60 percent higher. The Administrative Code Rules governing blood tests state that, “Serum or plasma alcohol concentrations shall be expressed as an equivalent whole blood alcohol concentration.”
So first we're exploring why the blood was drawn - if it was for medical purposes, did the officer request it, or was it done outside of that request, then we must determine if any conversions need to be done on the BAC reading.
Assuming the reason for drawing of the blood is ok, we need to look at how it was drawn. The Administrative Code Rules governing the collection of blood samples require the use of “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.”
Only a licensed physician or an individual operating under the delegation of a licensed physician may draw blood under the implied consent law.
When a person is drawing blood pursuant to the request of a police officer (whether consensual or via warrant), the person will use a blood draw kit provided by the MSP. The kits contain a nonalcohol swab, two stoppered vials containing sodium fluoride to prevent coagulation and to prevent neogeneration of alcohol in the vials, and stickers to seal the box for mailing to the MSP crime lab. Other than the stoppers, there is no seal for the individual vials.
In addition to the Administrative Code Rules, the courts have set forth a list of requirements to ensure the integrity of the blood draw and analysis, which were laid out in People v Cords, 75 Mich App 415, 427, 254 NW2d 911 (1977)
(1) that the blood was timely taken (2) from a particular identified body (3) by an authorized licensed physician, medical technologist, or registered nurse designated by a licensed physician, (4) that the instruments were sterile, (5) that the blood taken was properly preserved or kept (6) and labeled and (7) if transported or sent, the method and procedures used therein, (8) the method and procedures used in conducting the test, and (9) that the identity of the person or persons under whose supervision the tests were conducted be established.”
All 9 requirements can be cross-examined at a suppression hearing or at trial.
The forensic lab uses gas chromatography to determine the BAC level. Gas chromatography does not really test blood at all. Rather, it draws some blood out of one of the vials and places it in a new vial along with a chemical to make it react. It heats this solution and then tests the resulting vapor above this mixture, which is known as the head space.
The basic procedure followed by the state crime lab is as follows: The samples are received in the mail by the state police crime lab. The sample is checked by a technician to determine whether the seal has been broken or tampered with. If it has, the technician records that fact. The technician then opens the sealed kit, adds it to the lab’s inventory records, gives it a unique laboratory number, and places it in a locked cold storage area for later analysis.
When it is ready to be tested, the technician places a small portion of blood from one of the two vials (the other vial is left untouched) into two more separate vials and dilutes one with 1-Propanol and the other with t-Butanol, so they will produce a vapor in a gas chromatograph. Each prepared sample is placed in a separate chromatograph where the vapor is heated so it will pass through a glass column and is timed and measured as it passes out the other end of the column.
Each chromatograph produces a chromatogram, which is compared with a calibration curve, and the amount of blood alcohol is determined by reading where the sample peak passes over the calibration curve. The lab then rounds each chromatogram’s number down to two decimal places and reports the lower of the two chromatogram results.
It's important to request and receive the entire blood packet, because a defense attorney is usually only handed a single page result with a number; there is so much more information to gather to challenge the blood results. You want those tech notes recorded when the sample arrived, the condition of the sample and notes about the storage. The two chromatograms are usually not even the same number yet a single number is reported.
While each sample is prepared separately by a lab agent, the testing is automated. Each test sample is placed into an autoloader, along with some blanks (whole blood with no alcohol) and some control samples (whole blood with a known amount of alcohol). The lab places blanks and control samples throughout an entire run to ensure the integrity of the results. It's very important to obtain the results of the entire run to ensure that each blank and each control sample produced a result consistent with the known quantity, or lack thereof, of ethanol.
Along with vetting the testing process, we need to know the condition of the blood when it was tested, because microbes that occur naturally in the environment can change the sugars in the blood into alcohol. If the equipment is not sterile, if the vials are not properly sealed, if the preservative is not adequate, or if microbes are introduced through the injection of the needle into the stoppers, there is a chance for the fermentation process to neogenerate alcohol.
The state lab has the ability to check for neogeneration of alcohol by analyzing the glucose level in the vials or by comparing the ethanol to carbon dioxide ratio in the head space gas. However, it does not do so, and this is vital to cross-exam the MSP representative on.
The lab technician is supposed to note any indications that the seal on the box containing the two vials has been tampered with, the expiration date of the blood kit, and any indication that the vials themselves have lost their seals. The technician should also note whether he or she detected any coagulation of the blood sample. This can occur if the anticoagulant is not properly mixed with the blood sample by the person who drew the blood. Sometimes, if the technician detects coagulation, he or she will put the sample in a centrifuge to remove the solids. This can result in an artificially high result because only the liquid portion gets tested.
Former NYC & Michigan Prosecutor
Selected - 2013, 2014, 2015, 2016 & 2017
The most alarming part of the blood testing process is the blood sample kits are simply mailed off from the police department to the MSP lab, and ride next your Amazon boxes in the mail truck. There's special services in Michigan for delivering fresh and perishable food, yet blood is just throw in the mail truck in all different conditions and temperatures.
The interesting part is MSP will store the blood in the a cold storage after it is logged in, even though it has not been in cold storage for many days. This is like shipping chicken in the mail, then sticking it in the fridge three days later, and believing that it's still the same chicken as it was when it was shipped.
The lab report will contain the date the lab received the sample, along with the date of testing, but it's important to FOIA the entire chain of custody from the defendant's arm to the MSP testing process.
It's VERY important to object to any prosecutor requests to simply use the lab without the ability to cross-exam the lab agent, which they are able to do under MCR 6.202, that the prosecutor intends to introduce the report without the necessity of a live witness from the lab.
Unless you have the live witness present, you would need your own defense expert to come in and help defeat the blood results. While some cases may call for that extra witness, it is a viable solution to use the prosecutor's witness to your own case's benefit, but if they are not present, you can't do that.
If a client is charged based on drugs being in their system either with or without alcohol, the blood draw will be used to show the presence of drugs in my client's blood.
The MSP tests for drugs using the same gas chromatography process it uses for testing for alcohol in blood, but then it adds a second step of running some of the carrier gas through a mass spectrometer. The gas chromatograph detects possible drugs the same way it detects possible ethyl alcohol. The carrier gas passes through a long column and comes out the end at a known time.
If a substance is detected at a time for a known chemical, as it leaves the gas chromatograph column, it passes through a chamber where it is bombarded with an electron beam to create ions as the molecules break into smaller pieces. The mass of each fragment, expressed as the atomic weight, is used to identify the substance by analyzing the molecular pattern of the fragments using an adjustable scanning mass filter. Only fragments with a specific mass can pass through the filter at a given time, but the selected mass can be changed in milliseconds, enabling the mass spectrometer to analyze many different substances nearly simultaneously.
The lab test is looking for illegal drugs along with prescription drugs. Depending upon if you have a prescription or a medical marijuana card, what the blood test turns up could put you on the right side or the wrong side of the law. Even with a valid prescription or a medical card, the prosecutor can show impairment, which is a step above presence to still prosecute you for your blood containing a substance that is "legal" - remember, if you're 21, alcohol is "legal" to have in your system, but it's the amount and the impact it has on you, which is against the law.