texas criminal defense lawyers associationeseries.tcdla.com/rusty/pdf/11_murphy_doug_dwi blood draw...

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

1

Blood Draw Issues

DOUG MURPHY

Trichter & Murphy, P.C.The Kirby Mansion

2000 Smith St.Houston, Texas 77002

[email protected]

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

5/20/2013

2

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.

5/20/2013

3

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


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”

5/20/2013

4


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


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)

5/20/2013

5

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

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

5/20/2013

6

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

5/20/2013

7

3 Categories of Error with Blood

1) Pre-Draw2) Blood Draw3) Post Draw

Pre-Draw: Blood Test Kit

Defending Blood Tests

5/20/2013

8

5/20/2013

9

5/20/2013

10


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…


Gray Top Tube

In absence of kit, use medical “gray top” tube. Package must comply with all postal regulations…

Grey


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

11


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


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

12

The BD Vacutainer

®

Venous Blood Collection Tube

Guide Wall Chart

(Representing 14 Colors)

© 20013James Nesci


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

5/20/2013

13



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)


Candida Albicans

Yeast + Sugar = EtOH (Fermentation)

Indistinguishable from the EtOH (allegedly) consumed by your client.

© 2013 James Nesci

5/20/2013

14


Candida Albicans

How does it get into the tube?

Expired Tubes

© 2013 James Nesci


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

15

Pre-Draw: Site Preparation

What is used to cleanse the site?

5/20/2013

16

Pre-Draw Issues with Blood

© 2013 James Nesci


What manner? Concentric circles starting in center pushing bacteria and germs away from puncture site

5/20/2013

17


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.


3) Remove tube from collection needle and holder before removing needle from puncture site

Contamination of Blood Specimens for Alcohol Analysis During Collection

5/20/2013

18


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

19

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

5/20/2013

21


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 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

5/20/2013

22

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

5/20/2013

23

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


5/20/2013

24

Discovery


Discovery


Discovery


5/20/2013

25

ASCLD Audits & DPS Responses



5/20/2013

26


The Blood Draw – Visit the Draw Site

Visit the Crime Lab

5/20/2013

27

Visit the Crime Lab

Special Thanks to

James Nesci

Nesci & St. Louis

Tucson, Arizona

Josh Lee

Ward & Lee

Vinita, Oklahoma

texas criminal defense lawyers associationeseries.tcdla.com/rusty/pdf/11_murphy_doug_dwi blood draw...

Documents