Blood Testing for Blood Alcohol Concentration
Of the three chemical tests that are used by Kansas law enforcement to measure blood alcohol content levels, blood tests are the most reliable. When a blood test is administered, it is supposed to be administered by medical personnel, not the police officer. Additionally, the nurse/doctor is supposed to utilize a betadyne swab, not alcohol. The blood sample is then sent off to the KBI, where it will eventually be tested for BAC by a lab technician. The police are supposed to keep an accurate chain of custody record for the sample's location. The blood must be contained in the vial, under controlled temperatures. Theoretically, before a blood test result is admissible in trial against your, law enforcement must prove that the procedures were complied with.
Remember, the blood inside a person will appear red and alive. The old blood sample which has been tested, will be dark and old looking. All the testing, time, and chemicals have changed the blood makeup, and potentially elevated BAC levels.
Blood Tests can lead to elevated BAC levels.
Who did the blood draw?
The nurse who administers the blood draw should be adequately trained to do venipuncture /blood withdrawal. That's why medical personnel is to be used. The way the skin was cleaned prior to performing venipuncture is important. Hospitals usually use isopropyl alcohol to clean the skin prior to using a needle. Using alcohol can contaminate the blood sample, resulting in higher BAC results than what the actual truth is. Law enforcement is supposed to use a KBI approved Blood Kit to administer the blood test.
What part of your blood was actually tested?
Was your whole blood tested, or the plasma? Whole blood is composed of cellular material, plasma and fibrinogen. When a hospital tests blood, it is often first filtered, removing the cellular material and fibrinogen (clotting substance). While this "medical" test may be able to show whether there was alcohol in the system, it is not nearly as accurate in determining actual BAC levels. On the other hand, "forensic" tests are more precise as to BAC levels. Also, if just your plasma was tested, this will result in higher BAC results because you are taking the solid, cellular material out, and thus leaving the same amount of alcohol in a smaller volume of liquid. This is important in a drunk driving case, because hospitals often just test plasma and then report it as "blood alcohol." I have seen cases where the hospital blood results were significantly higher than the KBI blood alcohol results. Hospital tests should not be allowed in court for a DUI case, as they are more prejudicial then probative.
Serum testing has similar results to plasma testing and hospitals often tests serum and then report "blood alcohol" levels. Serum is plasma with the fibrinogen removed. Fibrinogen is the clotting material in blood. When the blood clots, a clear liquid forms over the blood. This clear liquid is the serum. Serum alcohol concentration and plasma alcohol concentrations are similar. But, these hospital tests are vastly different than whole blood forensic testing. The BAC measurements of serum and plasma average about 16% higher than when testing whole blood.
Your DUI attorney may need to ask questions of the lab tech, like: "Did you test the whole blood? Did you tests the plasma? Did you test the serum? Did you centrifuge the blood?" "
You personal Hematocrit levels can give falsely high BAC readings.
Hematocrit is the percentage your whole blood that is made up of cellular material vs plasma. The normal Hematocrit range for a male is 47%, and the results for a female are slightly lower. If someone has a normal Hematocrit of 47%, it means that their blood is 47% cellular material, and the remaining 53% is plasma. Plasma is mostly water. If someone has Hematocrit of 60, that means that only 40% is plasma and 60% is cellular. If plasma was tested in this case, the BAC results will be significantly higher because of the lesser volume of liquid. Because alcohol gravitates toward the liquid, you end up with higher BAC level. The higher BAC results from the alcohol being contained in a lower volume of liquid, not because they drank more alcohol.
High fluid levels in a person can cause falsely high BAC readings.
Alcohol gravitates toward liquid. When you drink alcohol, now only does it result in alcohol in your blood, it also results in alcohol in your body tissue as well. Therefore, if you increase the liquid in your body, via an IV drip, that liquid pulls more alcohol out of the tissue and into the blood stream, thus artificially increasing the BAC results.
BAK - Blood Alcohol Test Kits
Law enforcement use blood kits to draw the blood and then ship to KBI for testing. These kits have expiration dates. The tubes are no longer warranted after the expiration dates and can result in false BAC levels due to the anticoagulants and preservatives chemicals in the tubes being out of date.
Also, if there is too much chemical and not enough blood, this can cause false BAC readings because the preservative and anticoagulant are "salting out agents." When the blood sample is taken for testing, the lab adds a chemical to the sample to casue the alcohol to move from the liquid into the vapor. If you have a higher concentration of salting out agent, it will result in more alcohol in the vapor. Too much salting out agent will erroneously put too much alcohol in the vapor than should be in relation to the alcohol in the liquid. Sodium fluoride and potassium oxalate are salting out agents that are in the tubes.
If a vacutainer leaks, microorganisms from room air may enter the blood sample. This can result in fermentation. This fermentation occurs when microorganisms, are combined with the blood sample. What is the result of this fermentation? Alcohol! This extra created alcohol from fermentation appears to be the alcohol consumed by the person!
Your DUI lawyer should ask the lab technician, regarding the anticoagulant. "Did you test for bacteriological contamination? How? What chemicals were in the vacutainer tube prior to the blood being introduced? These chemicals are critical to an accurate test result? Did the person who took the blood sample check to see if the correct chemicals and amounts were in the tube? Was there 20 mg of potassium oxalate? Potassium oxalate combines with calcium ions in the blood to prevent formation of flambin. Flambin is a clotting element. If Flambin was present, the blood would have clotted? This potassium oxalate is used to prevent blood from clotting? If blood clots, the alcohol goes to the liquid and increases BAC reading? If There was clotting, then the BAC is artificially elevated? After the blood draw, but prior to analysis, you can do a test to determine if the anticoagulant is present? That test is call Ion Chromatography, correct? Can you do this test? Did you do this test? Blood can form micro clots that can't be seen upon visual inspection? If this anticoagulant was expired, how do you know this adequately prevented the blood from clotting? When did the kit expire? Where was the kit kept? What were the conditions of the place where the BAK was kept? Did the person shake the blood rather than invert the tube? How many times did he invert it? Did he follow the instructions? Note: they are not supposed to shake it. Can you identify at all times where the blood sample was? i.e. was there a "break" in the chain of custody?
Questions your DUI attorney should ask the lab technician regarding the preservative, Sodium Fluoride. Was there 100 mg of sodium fluoride? Sodium fluoride is a preservative to prevent formation of Alcohol by fermentation of the blood? Fermentation of blood can effect Alcohol concentration levels? A blood sample with no alcohol originally in it, can generate .BAC results of 25% or higher as it decays, due to fermentation? Refrigeration will slow down the fermentation process, but not prevent, fermentation and the production of alcohol. This created type of alcohol cannot be distinguished from the alcohol which was originally in the sample?
Questions your DUI lawyer should ask the lab technician, regarding the chemicals in the blood kit tube. "You've never tested a vacutainer tube to determine if the proper concentration of chemicals were present?"
Even though blood tests are deemed the most reliable method to measure blood alcohol levels, this chemical test has flaws and has come under scrutiny. Some states will take both a blood test and a
breath test to compare results and ensure fairness and reliability. Kansas does not. Not only does the officer choose just one test in Kansas (usually the breath test), the officer then only takes a single sample of this one test. However, you are suppossed to be provided an opportunity to get your own testing done. If you believe your breath tests were innacurate, specifically ask for a blood test. You can go to a hospital to attempt to have your blood tested.
Blood Draws Are an Invasive Search
The Kansas appeals courts have recently taken the tactics of law enforcement to task. The courts are upholding the 4th Amendment protections and no longer letting police officer do whatever they want when it ccomes to chemical testing for drunk driving cases. For example, one case clarified that a warrant may be required to do a blood draw and each case requires a totality of the circumstances analysis. Another case actually declared a portion of a DUI statute dealing with chemical testing as Unconstitutional. These cases are having serious affects for the experienced Kansas DUI defense lawyer who aggresively applies the recent law changes.