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Texas DWI Cases Affected by Blood Alcohol Testing Scandal

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Texas DWI Cases Affected by Blood Alcohol Testing Scandal

SAN ANTONO (November 25, 2019) Texas DWI attorneys should know that 1000s of DWI cases may contained flawed forensic samples for BAC testing. An important announcement from Becton, Dickinson, and Company (BD) has raised significant doubt as to the validity of blood alcohol tests across Texas since August 31, 2018. BD issued a voluntary medical device recall for 240,000 Vacutainer® Fluoride Tubes for Blood Alcohol Determination (Catalog Number 367001; Lot Number 8187663; Expiration Date 2020/07/31) starting on May 30, 2019. BD confirmed that a number of these tubes were missing an important additive that preserves the blood specimen for testing. These additives were meant to prevent coagulation in the sample and preserve the blood for proper testing. As a result of these missing additives, affected tubes may cause false high blood alcohol results, making them unreliable for measuring the BAC at the time of driving.1

Texas DWIs Are Affected

On July 8, 2019, the Texas Forensic Science Commission issued a Memorandum concerning BD’s Tube Recall. The TFSC confirmed “numerous Texas-accredited laboratories have received grey top tubes from the affected lot.” Furthermore, a number of blood draws were conducted utilizing the grey top tubes that were subject to BD’s recall. TFSC also noted that “laboratories are unable to ascertain based on a review of the case documentation whether the tube(s) used in any particular case were among the 101 tubes identified by BD as missing additive powders.”2 However, the impact goes beyond the tubes that BD says were affected, with as many as 1,700 cases being compromised in Houston alone.3

San Antonio DWIs Are Affected

San Antonio DWI lawyers have been informed that the Bexar County District Attorney’s Office has requested labs report which cases may be affected but has confirmed that some of the recalled tubes were present in Bexar County. Unfortunately, law enforcement agencies often have their own blood alcohol testing kits and some blood draws occur medically, outside the normal forensic process. Other counties in the local area, such as Kendall County, Comal County, and Guadalupe County, have been slower to respond. Little information about the total number of San Antonio area DWI cases that may be compromised has been released to DWI lawyers. As a result, while local DWI lawyers know that cases may have false positives, they cannot be certain how many DWI cases are affected or which cases have been impacted. San Antonio area DWI lawyers must diligently check each case to see if their clients may be victims of bad forensic science.

BD Test Tube Recall Hurts Accused Drivers, Even If Innocent

Important questions are being raised as a result of these public notices. Because the test tubes contained an anti-coagulant, the samples may appear normal, even though they are unstable. Only the individuals who performed or witnessed the blood draw would have personal knowledge as to whether the additive powders were present at the time the blood draw occurred. Furthermore, BD and TFSC have confirmed that it is impossible to determine whether the additive was present after blood is introduced into the tube. This means that tests performed on the samples in the bad tubes may show false positives or may go untested, leaving accused drivers in the dark about their BAC, even if innocent.

DWI Lawyers Must Check Every Case

If the blood draw at issue occurred after August 31, 2018, the blood test may be impacted by this recall. Several things can assist in ensuring the accuracy and potentially excluding these tests at the trial of a DWI. It is important that an attorney review the blood discovery to ascertain whether the test was within the affected lot. If it is within the affected lot, the next step is to subpoena necessary documentation from BD and subpoena records and statements concerning whether the blood draw was clean and without variance, and that the blood tube was properly refrigerated. While absence of the sodium fluoride preservative alone may not have a significant impact on the alcohol concentration, changes in temperature may cause significant variations in the alcohol concentration without the preservative present.4 Furthermore, alcohol levels have been shown to increase when exposed to certain types of common yeast that lives on humans when missing the preservative, making temperature and cleanliness ever more important in these cases.5 However, if DWI lawyers suspect their client may have been under the legal limit, they should move for private testing immediately, before samples degrade.

A good DWI defense attorney may exclude these records from trial by filing motions to exclude and ascertaining whether the State has the necessary proof to establish the reliability of these tests. One of the key facts associated with Driving While Intoxicated (DWI) convictions is a suspected individual’s Blood Alcohol Content (BAC) level at the time of driving. Challenging blood draws is an important element to a good DWI defense. Moreover, reliable forensic evidence is the right of every accused person and every juror hearing evidence.

Joseph Hoelscher is an experienced DWI lawyer and intoxication offense attorney. He is the author of the LexisNexis Practice Guide for DWI lawyers, “Texas Drunk Driving Law,” published by Matthew Bender. Laura Zachariah is an Associate DWI attorney at Hoelscher Gebbia Cepeda PLLC and Contributing Author of “Texas Drunk Driving Law.” Together, they have successfully handled cases ranging from DWI to Intoxication Manslaughter.

1 BD, Recall Notification – BD Vacutainer® Fluoride Tubes for Blood Alcohol Determinations, June 12, 2019, available for download at https://www.bd.com/en-us/support/recall-notifications/recall-notification-bd-vacutainer-fluoride-tubes-for-blood-alcohol-determinations.

2 TFSC Citing: Texas Forensic Science Commission, Memorandum, July 8, 2019, available at https://www.txcourts.gov/media/1444360/bd-memorandum-070819-5.pdf.

4 TFSC Citing: Stojiljkovic et al., Ethanol Changes in Blood Samples During Medium-Term Refrigerated Storage, 20 Eur. Rev. Med. Pharmocol. Sci. 23 (Dec. 2016), at 4831-6. See also Winek T. et al., The Effect of Storage at Various Temperatures on Blood Alcohol Concentration, Forensic Sci. Int. Ireland (1996), at 179­–85.

5 TFSC Citing: Penetar D.M. et al., Comparison Among Plasma, Serum, and Whole Blood Ethanol Concentrations: Impact of Storage Conditions and Collection Tubes, 32 J. Anal. Toxicol 7 (Sept. 2008), at 505-10.