Hospital Blood Tests in DUI Cases

Enzyme assay is the method used most commonly by hospital laboratories and the analysis is performed on serum or plasma samples, rarely on whole blood. The hospital serum or plasma ethanol test is used as a clinical screening test to determine if a patient has altered mental status due to ethanol, some other condition (such as closed head trauma), or a combination of ethanol and some other medical condition.

The Hospital Test Results Are Not as Reliable as Forensic Evidence for The Following Reasons:

In a trauma setting, arterial samples are often drawn instead of venous samples;
The sample does not have a complete chain of custody;
The sample is serum or plasma, not the whole body;
The sample is analyzed by enzyme assay, a method associated with a high frequency of false-positive results;
The sample is usually analyzed once, not twice as required;
The sample is not retained for subsequent re-analysis;
Quality control measures are not usually in place to assure forensically reliable results; and
The system allows for plus or minus 25 percent error, or a total error of 50 percent, well above the forensic standard of plus or minus 5 percent error.

What Makes a Blood Test “Good Enough” for Use in a Georgia DUI?

When you really dig into the chain of custody and care for blood samples in Georgia DUI law, you recognize some really troubling trends. Samples are rarely cooled as they should be. Samples are rarely properly mixed as they should be. Very little care is given as to how samples are transported from the hospital or other facility to the State Crime Lab. Very little attention is given to all of the people that have undocumented access to the sample prior to test. Despite all of these problems, Georgia courts continue to allow juries to rely upon tests performed upon these samples. So, what level of inattentiveness (let’s go ahead and say it: carelessness) will affect the ability of the State to use the sample at trial? Arguably, there is no level of lack of care that will affect the ability of the State to present blood test evidence to a jury in a Georgia DUI case, as long as the State can establish that the sample tested is the sample drawn from the defendant:

But, once it has been established that the blood sample is the same as that which was seized, any argument as to the purity of the sample goes to its weight, not admissibility.

Schlanger v. State, 290 Ga.App. 407, 659 S.E.2d 823 (2008), isn’t a revolutionary case in Georgia DUI case, and it generally re-states principles relating to admissibility versus credibility found constantly in our cases. However, it illustrates the point that very little will affect admissibility under Georgia DUI law. More importantly for us, it also helps lay out some of the factors that we should address to courts assessing admissibility:

Schlanger also contends the trial court erred in admitting the blood test results over his objection that the state had failed to sufficiently establish the chain of custody of his blood sample. Schlanger’s claim lacks merit.

To show a chain of custody adequate to preserve the identity of fungible evidence, the [s]tate must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The [s]tate is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.

(Footnote omitted.) Stringer v. State, 285 Ga.App. 599, 603(2), 647 S.E.2d 310 (2007). We review a trial court’s finding that the state adequately established chain of custody for an abuse of discretion. Id.

At trial, the technician who drew Schlanger’s blood on behalf of the state testified that when taking the blood sample, she used instruments from a sealed kit designed specifically for that purpose. After drawing the blood, the technician labeled the blood tubes with her initials and the date, and sealed the tubes. The tubes, which had not expired, contained the preservatives sodium fluoride and potassium oxalate. She placed the sealed tubes into a sealed bag and placed the bag into a box which she again sealed with her initials and dated. She then handed the box, which was addressed to the Georgia Bureau of Investigation (GBI), to the arresting officer.

The arresting officer testified that he took the box from the technician and kept it in his possession until he placed it into the U.S. mail the following day. The GBI forensic toxicologist who tested Schlanger’s blood sample testified to the GBI’s handling of the evidence. Upon the GBI’s receipt of the box containing Schlanger’s blood sample, it was inspected to ensure that it had been properly sealed. The box was then opened and inspected to confirm that the tubes had been properly labeled and sealed, had not leaked, and showed no signs of tampering.

The test tubes containing the blood sample were then placed into a different bag which was sealed, labeled, photographed, and given a unique bar code and case number for computer identification. The bag containing the sample was then placed into a refrigerated storage unit until it was retrieved by the toxicologist for testing. The toxicologist explained that access to the storage unit is very limited and requires any individual gaining access to use a pass containing a bar code and an individual personal identification number prior to gaining entry to the area. When the toxicologist retrieved the sample for testing, she confirmed that the tubes were not damaged and their seals were intact.

This evidence was sufficient to meet the state’s burden of proving reasonable assurance of the identity of the sample. Stringer, 285 Ga.App. at 604-605(2), 647 S.E.2d 310. It follows that the trial court did not abuse its discretion in admitting the challenged evidence.

Schlanger nonetheless argues that the condition of the blood sample evidence was questionable because it took nine days from the day it was mailed to be received by the GBI. But, once it has been established that the blood sample is the same as that which was seized, any argument as to the purity of the sample goes to its weight, not admissibility. Smith v. City of East Point, 189 Ga.App. 454, 456(3), 376 S.E.2d 215 (1988). See also Maldonado v. State,268 Ga.App. 691(1), 603 S.E.2d 58 (2004); Campbell v. State, 136 Ga.App. 338, 341(3), 221 S.E.2d 212 (1975) (“In light of the sealed nature of the container and the lack of any evidence of tampering, we are convinced that the chain of custody is unbroken up to its opening by the state analyst.”).

Defending Against Georgia DUI Blood Tests – It Begins With Discovery

Most of my clients have little, if any, experience choosing a DUI lawyer. My clients come to me with a DUI charge, and they simply want a way out of it. They are inexperienced in the process, and they do not understand what factors they should weigh more heavily in evaluating different lawyers. This difficulty is completely understandable, and the web does little, if anything, to help. Particularly in the area of DUI defense, the internet has improved the quantity of information of available to prospective clients, but often times, the impression one receives from the internet can be misleading as it relates to a lawyer’s practice.

My experience has been that, in evaluating different lawyers, clients disproportionally weigh the years that a lawyer has been “practicing” and the “training” that the lawyer has received. I openly admit that I am a bit obsessed with training that I receive. I have invested a small fortune in seeking to obtain the very highest level of training available, but I also recognize that obtaining the very best training does not help my clients any unless I am ultimately willing to put that information to work at motions hearings and trial.

The key to identifying the “right” DUI defense lawyer may lie less in the professed “training” and “years of experience” and more in the willingness of the lawyer to try your case. What does it mean to be willing to “try” your case? Well, that is simple: when it comes down to it, is the lawyer willing to go forward and make the state prove the charges against you in a contested hearing?

Most people naturally assume that every lawyer will take your case to trial if that is what you want to do, but that is not necessarily the case. In practice, most lawyers impose a great deal of pressure upon their client to accept a negotiated plea simply because the lawyer is unwilling to take the case to trial. This is an unfortunate truth in the DUI defense world.

When I read Dan Heath and Chip’s article “Why True Grit Matters in the Face of Adversity” on Fast Company, this reminded me of the elusive factor in lawyers that most clients just don’t grasp: it is very difficult to determine if your lawyer will actually be willing to do the dirty work for you.