At the Law Office of George Scharmen, I have had a lot of training in blood testing for alcohol and drugs. I have tried many of these cases, and I have highly trained and experienced experts who help me with these things in and out of the courtrooms.
I try to get the word out to everyone as best I can that if you are arrested for driving while intoxicated you should refuse a breath test and let the police take a blood test. If you refuse the blood test as well, that’s okay too. Eventually, there will be a search warrant issued for a blood test. During this period of time - from the arrest to the needle - the alcohol concentration in the blood is dropping by at least .02 per hour. The laboratory report that is sent to the prosecutors is biased in favor of guilt. That is, there is a tolerance of error written into the result, and if you do the math that error can change the result to a lower level of crime or cause it to be below .08. These are legal and scientific reasons to refuse a breath test.
However, there is more to this story. There are many thousands of persons annually who have their blood tested in DWI cases is Texas. The testing laboratories have limited facilities to do this work, and they are under pressure to get these test results out to the prosecutors. Blood testing for alcohol and drugs is complicated. The time pressure on the labs is real, and the numbers of tests and the complications of the testing process add to the possibilities of errors in testing. I have previous blogs on this website about what I have found in my practice over the years.
The lab analysts not only perform the tests. They also must come to court to testify about their work and to justify their methods. Generally, there are about 50 people tested in batch. All of those tests must be done according to the Standard Operational Procedures (SOPs) that have been adopted by the laboratory for testing. My friend and sometimes expert witness, Tom, puts the SOP issue in these terms:
“The SOPs are the scientist’s bible,
and if you don’t believe the Bible you can’t be a Christian.”
In cases I have tried I have seen analysts who, under pressure, take shortcuts or even step outside the requirements of the SOPs in order to complete the batch of tests. The reason is that if the batch is not run correctly, the analyst must start over from the beginning, losing one or two days’ work. However, any deviation from the SOPs must pass a quality check by a supervisor, and the change must be published for further analysts’ review.
Some analysts go to great lengths to justify their deviations like:
-taking the value of a control that failed to work correctly in the initial batch run and substituting its value in the records of the initial batch with an isolated test from a similar control obtained after the batch was tested;
-running tests on machinery that is broken or not working correctly and substituting procedures that do not appear in the SOPs to “make it work;”
-altering the numbers in a final batch after a supervisor’s review without notifying the supervisor of the change.
These kinds of problems occur, and the sad thing is that unless someone with training and experience reviews the testing records these deviations may never be seen and challenged in court. That is what I do.
Why do these things happen? Analysts are busy. There is a backlog of work to be done. Restarting a batch takes away valuable time for completion. However, it is not just completion on time or even justifying changes that matter. The issue in every case is the scientific reliability of the test results. These reports are entered in evidence in court. Jurors want to believe that they can trust the labs and analysts. It is important to have a legal team that can recognize when the lab or the lab analyst was not reliable because he couldn’t see the forest for the trees.