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What you need to know about DUI blood test issues

What you need to know about DUI blood test issues

Colorado has approved two separate chemical tests to determine a person’s alcohol level. The first approved test is a breath chemical test analyzed by the I-9000. The second approved method is blood testing.

Most states, including Colorado, have Express Consent laws which, in layman’s terms, means when you are driving a car or in actual physical control of a car, it is assumed that you have given consent to having a chemical test performed if you are suspected of driving under the influence of alcohol or an other intoxicating substance. As the driver, you have the right to refuse the test, but refusing the test may result in an administrative revocation of yo ur driving privileges for a year. This revocation can be challenged in the same manner as a revocation for a chemical test result showing an over the legal limit of .08 breath/blood alcohol level for persons over 21 and .02 breath/blood alcohol level for persons under the age of 21.

The choice of whether a breath chemical test on an I-9000 or a blood test is administered remains with the person being arrested. The officer must follow certain guidelines established by Colorado law. First, to request a test, the arresting officer must have a valid arrest. The officer must inform you of your rights as afforded by Colorado Express Consent law. The officer should advise you of your right to a chemical test, and notify you that you are not entitled to consult with an attorney prior to making the decision whether to take the chemical test.

Colorado Express Consent law requires any driver to consent to a chemical test if a police officer has probable cause to believe the person is driving under the influence or the driver’s ability to operate a motor vehicle is impaired because of alcohol, drugs or a combination of both. Failure to submit to a chemical test results in a minimum one year revocation of your driving privileges.

The following advisement should be given prior to a test being taken, but it rarely is:

“You are required to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath (C.R.S. 42-4-1301.1 (2) (a) (I).) The chemical test you choose is the test you will be taking. You cannot choose a different test later (C.R.S. 42-4-1301.1(2) (A) (II).) If you choose a blood test, two (2) tubes of blood will be drawn. One tube belongs to you and you may have it tested at a health department certified independent laboratory of your choice. If you choose a breath test, two (2) breath samples will be analyzed by a certified evidential breath alcohol testing device following an approved standard operating procedure. You will not receive a sample to have independently tested by a certified laboratory. If you refuse to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath your driving privilege may be revoked.” (C.R.S. 42-2-126(2)(a)(II)).

If the driver is involved in an accident where death or serious bodily injury results, the police officer can require a forced blood draw. If the driver is unconscious and unable to give consent to a chemical test, the driver’s consent is considered expressly given and the police officer can direct a blood test. Under circumstances in which the driver is unable to give consent, the law does not require an injury or death for the officer to proceed with a blood test. If there are extraordinary circumstances and the test requested cannot be performed, the test shall be of the person’s blood.

If a blood test is required or consented to, the officer will use a blood kit provided by the Colorado Department of Public Health and Environment (CDPHE). This is a standard blood withdrawal kit that is completely self-contained. The kit is provided to the medical personnel withdrawing the blood samples. Contained in the kit are two vials that contain an anticoagulant and a preservative.

The officer will direct a nurse, doctor, emergency medical technician, paramedic, or other approved medical personnel to withdraw the blood samples in the officer’s presence. The person withdrawing the blood will use both vials to obtain two separate blood samples. After the blood samples are taken, it is required that the vials be inverted several times so the blood samples will be thoroughly mixed with the preservative and the anticoagulant.

The two blood samples will be given to the police officer who will seal and repackage the vials into the blood kit. The officer will seal the package and will take custody of the sealed kit for delivery to the proper laboratory for analysis. The officer needs to make sure the sample reach the testing laboratory within a reasonable time. Transportation and storage of the blood is important to prevent fermentation. If fermentation or contamination occurs, it can cause an increased blood alcohol level in the blood sample. If the anticoagulant and/or preservative in the vial are defective or not properly mixed, an increased blood level can result. These are just some examples of how the blood alcohol level reported could be incorrect and falsely elevated.

A laboratory approved by the Colorado Department of Public Health and Environment (CDPHE) must process the blood sample. There are only nine approved laboratories in Colorado that can test for blood alcohol concentrations and only three labs certified to test for drugs in blood tests. The second vile is preserved for up to one year for the defense to test the sample. After one year, the samples are destroyed.

If a chemical blood test is completed on the driver, the driver is entitled to have one of the vials of blood sent to an independent laboratory for a separate independent analysis. The driver isn’t allowed to just show up and pick up the sample from the lab; rather, the sample must be requested by the testing laboratory to keep the chain of custody intact.

This independent test allows the opportunity to double-check and confirm the work of the State’s laboratory. However, if there is an increased blood level due to human error in procedure, the error quite possibly affected all the samples. For example, if the officer left the blood kit containing the vials of blood in his trunk for three days in July before transporting it to the state’s lab, fermentation could occur in all vials causing falsely increased blood alcohol levels.

In Colorado the state’s tests are performed on a gas chromatograph. These machines are expensive and the test sequence to determine the blood alcohol level is time consuming. Due to the expense and time of using these machines, many hospitals do not use the gas chromatograph to analyze for blood analysis. The hospital’s concern when taking a blood sample to analyze for alcohol or drugs is to determine if these substances are in the patient’s system. The hospitals want to know this information before administering any drugs that may react adversely with possible intoxicants already in the patient’s blood.

The hospital’s concern is speed and not necessarily accuracy of alcohol or drug levels. The analytical methods used by the hospitals routinely render alcohol or drug levels 20-30% higher than the more accurate result rendered by the gas chromatography method. There is also a much higher possibility of contamination because steps to prevent possible contamination are not used (little to no preservative is used). With these increased risks of false reporting, it is not surprising that these blood alcohol reports do not meet the basic scientific requirements required to be admissible in court.

A blood test result over the legal limit, even a high result, is not the final nail in the coffin. Skilled attorneys can successfully challenge the test when they understand how gas chromatography works, have visited forensic labs, have researched, and understand the standard operating procedure and legal requirements for withdrawing and analyzing blood samples. If the challenge is successful, the blood result will not be admitted and the jury will never know a blood sample was taken. A suppression of the blood test can result from many different challenges, including but not limited to, issues with chain of custody, fermentation, expired equipment, expired certifications, and faulty equipment or maintenance.

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