Lecture on Analytical Chemistry in BAC testing Part 6

The above is Part Six from a lecture given by Attorney Justin J. McShane before the North Carolina Advocates for Justice “Advanced DWI Seminar”. This seminar happened on February 26, 2010. It was organized and hosted by John K. Fanney, Esquire of Fanney & Jackson, P.C. The following is a transcript of this video:

This is an example from a case that we just went to trial on. When you blow it up, this is the information you get from the Laboratory Information System. It is a one sheet conclusion. What the one sheet conclusion is when you blow it up, just says .127 abnormal results for alcohol, but if you notice it says ‘whole blood’. It is not an expression of whole blood. Unfortunately for your client, most of the time you sit there and go “Oh my God, he’s screwed,” right? But that is only because you take a look at that one sheet of paper. Let me ask you a question. If you got a police report that simply said, your client was drunk. Would you just say “I give up,” “I’m done”? Why do we do that when we get a result? Why do we say, “We got one piece of paper that says .127 whole blood, well geez, I’m done”?

You would not accept that when a police officer tries that business. Don’t accept it when a lab tries that business. The devil is in the details. You know the process. What comes out of the machine is not a whole blood result but they are reporting it as a whole blood result. The reason you can catch them is, not by just knowing the SOP that we just went through, but you can also take a look at the details. This is the instrument ticket. This is what it actually prints out or something like this depending on your machine. We are going to blow it up and take a look at it. This is from a different case but this is one of the best illustrations that are out there. Some mood music. It’s tranquil. You get the evidence ticket that comes out of the machine and you can see very plainly, it says serum. That is why you have to go back and not just accept the police officer saying your guy is drunk. Don’t accept the analyst coming in and saying your guy is a .127. Peel back the onion, go get the tickets and you can see right in there that it is a serum.


Male: Just a quick question. When it centrifuges and the lighter stuff comes to the top then is the alcohol one of the lighter things? Isn’t that basically what is going on?

Yes. Of course if you think about it, it makes a lot of sense. We know in our daily living what alcohol is like. Blood is a lot heavier than that because of all the junk in it. You are right. It does separate alcohol to the top, which is a good point.

You can catch them with their own stuff inside the lab when you peel back the onion but it gets more complicated than that. This is what’s called the calibration curve. It is important for you to know what it means. The calibration curve is the way the analytical device is shown to be within tolerant range. That it is accurate and precise. You don’t have to be a rocket scientist to understand a lot of this stuff. It is low hanging fruit that anyone can understand. They are trying to run through the machine to make sure it is accurate and precise and they are comparing known standards and seeing what the machine does with that. The reason it is low hanging fruit is because it will tell you often times the problems that go along with it.

Blowing this up, we take a look at it. You can right here, it is in your materials, and it says calibration status not accepted. Who in this room would think that means the thing is okay? You do not have to be an analytical chemist with a PhD to realize that if something isn’t calibrated it isn’t working right. It is not good. Then if you take a look a little further down, I don’t know what this means, but I found out what it meant. It has negative numbers. If you are measuring something, especially something like alcohol, think about this, zero means nothing. How can you have a negative value, is it really, really not there? You have to really think about these things. It even says error assay range but because it’s good enough for government work what does the analyst do? The analyst says A-okay.


Male: What you have on the screen, is that a lab report? And, how would we get that?

You are going to request the calibration curve. One of the things I will do is email my super subpoena that I have in discovery request and it will be in the liege of documents you have there. Particularly, how you are going to get it is through subpoena. Asking for it and insisting that you get it using these types of things as examples of what can go wrong. Like I said, it is low hanging fruit.

In this particular case, we have five years’ worth of data on this particular machine. From the date of this, which was July 30, 2007 and they calibrate it every sixty days, because he forced an agreement and said it was ok. Everyone for that sixty days was getting screwed. That is a lot of people. The next time they came out, they did a new calibration curve that is there and again, you don’t need to be a rocket scientist. On this one, the low range value says it was outside the assay range. In this particular one, again what you have is the high values. They couldn’t get it right low. The next time, they couldn’t get t right high. They just couldn’t get it right and they couldn’t figure it out so they just kept on testing people. You bring this in front of juries. You bring it in front of judges.

Judges will understand that because it is low hanging fruit and it says stuff like not accepted. Not accepted, that is pretty powerful language. It is something you really need to take a look at and it doesn’t require rocket science. You just have to be exposed to it by coming to these great seminars and knowing that it is out there instead of just accepting one piece of paper, don’t accept the traffic cop’s saying, “You’re guilty.” Don’t accept the lab scientist trying to do that same jazz. Make sure it is right. Be their external validation check. Then you get beautiful stuff like this. Northern Pennsylvania, extremely rural, I asked for the discovery on this particular case, I am not going to say what county it is in – I have redacted a little bit of it because it is going to be litigated. It is going to be like a Pearl Harbor moment in their life. They are not going to see this coming.

When I asked for it, this analyst, basically what it says here in the sample is, plasma and they put on their ticket, “When completing whole blood alcohol put a line through ‘plasma sample’ and write in whole blood filtrate on all printouts.” You can’t make that stuff up. That happens out there. It probably happens in your state. And it is not because this person is trying to be a crook. It is because the machines are run by operators who are not hard-core scientists. Generally they are people who have an Associate’s degree or were nurses and they wanted to work in the lab because they got sick of working with people so they got re-tasked, reassigned. It is not like they are trying to screw your clients. They don’t understand the distinction and how important it is but you can understand it.

It is not really important that you understand all the jibber-jab that is inside the machine. You just have to understand the process. You have to understand that there is information out there that you should be getting in order to make things right. Again, whether or not you know the particular scientific break down of the machine is not as important as understanding the processes.

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