New York Criminal Attorney Blog

In continuing with my series of blogs on Driving While Intoxicated and blood testing, this blog will focus on the problem of fermentation within the blood sample collection tube. I previously explained that the collection tube is supposed to contain two chemicals – an anticoagulant and an anti-fermentation chemical. Preventing fermentation in collection tube is critical because if the sugar in the blood ferments into alcohol, that will obviously result in an erroneously high blood alcohol concentration result.

The collection tubes are therefore required to contain a preservative to prevent fermentation. Sodium fluoride is the most common preservative used and is the preservative used by NIK Public Safety, Inc. who manufactures the blood collection kits most commonly used by law enforcement agencies. NIK makes two kits; one contains 20mg of sodium fluoride and the other contains 100mg of sodium fluoride.

Inquiry should be made into whether the kit contained 20mg or 100mg of sodium fluoride because 100mg is required to prevent fermentation. There are problems with both. First, studies have shown that 20mg is insufficient to prevent fermentation and second, 100mg can cause an erroneously high result when “Head Space Analysis” testing is used (discussed later).

If you have been arrested for Driving While Intoxicated and would like a free telephone consultation with attorneys who know not just the law, but the science and procedures involved with DWI cases, contact Tilem & Campbell toll free at 1-877-377-8666.

As discussed in a prior blog, when you are charged in New York with Driving While Intoxicated or Driving While Ability Impaired, the most common method used by police to determine your blood alcohol concentration is a Breathalyzer type machine. However, the police may, and sometimes do, request a blood sample instead. I have already discussed who may perform the draw, the sanitizing of the skin and the need for the collections tubes to contain anticoagulant and anti-fermentation chemicals. Assuming the draw was done by an authorized person, the skin was properly sanitized with a non-alcoholic swab and the prosecution somehow was able to establish the collection tube contained the necessary anticoagulant and anti-fermentation chemicals, the next area of attack for New York defense counsel is whether said chemicals were properly mixed with the blood after the draw.

The mixing of the chemicals and the blood is critical. The instructions that come with the kit manufactured by NIK Public Safety Inc (the kit most commonly used by law enforcement agencies) instruct the blood drawer to slowly invert the collection tubes at least five times after blood collection is complete to assure the proper mixing of the anticoagulant and the blood. The kit also instructs that the officer who requested the blood test invert the collection tubes slowly at least 20 times immediately after the blood is drawn.

This requirement should be explored by defense counsel. Many times hospital personnel are not familiar with this requirement because they don’t normally do it when they take blood. Furthermore, I have seen police officers testify that they didn’t even know about this requirement. If the collection tubes are not properly inverted after collection, the chemicals will not properly mix with the blood. Just imagine a cup of coffee with sugar at the bottom. The coffee will not taste sweet unless the coffee is stirred or agitated to mix the sugar. If there is no testimony about the proper inverting of the tubes after the blood draw, you should move to have the blood test result suppressed. If it is not suppressed, your attorney should ask the toxicologist whether the failure to properly mix the chemical affects the integrity of the sample.

For more information about Driving While Intoxicated in New York contact us to discuss your specific situation.

If you have been charged with a New York Driving While Intoxicated charge or any other related charge such as Vehicular Manslaughter, you need criminal defense attorneys who not only know the laws relevant to DWI, but also the science and procedures involved with such charges. You need lawyers who can competently question the prosecution’s witnesses including their experts

If you are arrested for Driving While Intoxicated in New York and instead of the more typical Breathalyzer test being requested of you, the officer requests a blood sample, that blood sample is not immediately tested. In a typical Breathalyzer case, your breath sample is immediately tested by the machine. However, with a blood draw case, the blood sample is typically sent to a lab for testing. This procedure can take days and even weeks to complete. Two issues therefore, become a problem: (1) clotting; and (2) fermentation. I will discuss clotting in this blog.

We all know that blood exposed to the air will clot after a while. If parts of a blood sample start to clot, the alcohol will concentrate in the remaining liquid portion and it is the liquid portion that is tested. This will result in an erroneously high test result. In order to prevent clotting, the collection container or tube must contain an anticoagulant. [See 10 NYCRR § 59.2(c)(4)].

Whether the sample contains an anticoagulant can be determined through a process called ion chromatography. However, the lab that actually tests the blood almost never tests to see if the sample actually contains an anticoagulant. The question becomes therefore, did the collection container actually contain an anticoagulant and if it did, how much did it contain?

Most likely, none of the prosecution’s witnesses will be able to definitively confirm that the collection tube actually contained an anticoagulant or how much. Unless they conduct testing (or at the very least random testing a some of the collection kits the particular law enforcement agency purchased), the most any prosecution witness could testify to is what the labeling or literature accompanying the collection kit stated with regard to an anticoagulant and that would be hearsay.

In People v. Peck, 16 Misc.3d 126(A), 841 N.Y.S.2d 827 (App. Term 2nd Dept. 2007), the Appellate Term for the Second Department held that the defendant’s blood test results were improperly admitted because the People failed to establish that the collection containers contained the required anticoagulant chemical. In a 2004 case, that same court (Appellate Term for the Second Department) had reached the same conclusion holding that the defendant’s blood test result was improperly admitted at trial because their was no evidence that the collection tubes contained to required chemicals and the required amounts. See People v. Barker, 5 Misc.3d 137(A), 799 N.Y.S.2d 162 (Table)(App. Term 2nd Dept. 2004).

Therefore, defense counsel should ask each prosecution witness involved with the blood draw if they have any FIRST HAND knowledge about what chemicals were contained in the collection tube. If none do, defense counsel should object to the introduction of the blood test result. And without a test, how could any prosecution witness know for sure what was in the collection tubes.

. For a free telephone consultation, please call Tilem & Campbell toll free at 1-877-377-8666 or send us an email to info@tilemandcampbell.com.

If you have been charged with Driving While Intoxicated in New York you need criminal attorneys who know not just the law, but the science and procedures relevant to a DWI case.In continuing with my series of blogs concerning blood testing in New York Driving While Intoxicated cases, I will now discuss the “swabbing” or sterilization of the skin prior to the drawing of the blood. Recall, my prior blogs discussed who may actually draw the blood. After who actually did the draw is attacked by defense counsel, the next area of attack is the “swabbing” or sterilization process.
New York State Department of Health Rules and Regulations require that a non-alcoholic antiseptic be used. [See 10 NYCRR § 59.2(c)(3)]. Clearly, alcohol used to clean the draw site could find its way into the sample. In People v. Ward, 14 Misc.2d 518, 178 N.Y.S.2d 708 (N.Y.Co.Ct. 1958), the Westchester County Court held that it was reversible error to admit blood alcohol evidence where the defendant’s arm was cleansed with alcohol prior to the blood draw. In Ward, a chemist testified that it was possible that alcohol used to cleanse the draw site could have entered the blood sample.
Likewise, in People v. Maxwell, 18 Misc.2d 1004, 188 N.Y.S.2d 692 (N.Y.Co.Ct. 1959), the Orange County Court held that the blood test result was inadmissible because the defendant’s arm was sterilized with alcohol prior to the blood draw. See also People v. Douglas, 16 Misc.2d 181, 183 N.Y.S.2d 945 (N.Y.Co.Ct. 1959) where the Jefferson County Court reversed DWI conviction where doctor testified that the skin was swabbed with alcohol prior to the blood draw and the toxicologist testified that a small amount of alcohol could enter the sample thus effecting the result.
The most commonly used blood test kit used by law enforcement is sold by NIK Public Safety. It contains, among other things, one non-alcoholic antiseptic swab. The instructions contained within that kit instruct the person drawing the blood to use only the Swab Pad provided in the kit. The instructions further state that the drawer should prepare the draw site using only the non-alcoholic antiseptic pad provided in the kit.
However, it is possible that a nurse or other authorized blood drawer might not use the non-alcoholic swab provided in the kit and simply, out of habit or otherwise, swab the area with the swabs they normally use in the hospital/ambulance etc. This must be explored with the blood drawer on cross-examination. You should try to ascertain from the witness what type of swab the hospital normally uses. If the drawer can’t recall whether they used the proper swab, then point out that it is possible that they used an alcoholic swab. You would then ask the toxicologist what effect this might have on the test result.
For a free consultation please call Tilem & Campbell toll free at 1-877-377-8666.

Senior partner, Peter H. Tilem, appeared on the five o'clock news earlier this evening commenting on the Taconic Parkway fatal collision that left the driver and seven others dead. The piece appeared on channel 7's Eyewitness news shortly after 5 pm. Mr. Tilem, who is a former senior prosecutor in the New York County District Attorney's Office, was asked about the possibility of charges being brought against the husband of the woman who was allegedly intoxicated and indicated that it would not be sufficient if the husband was merely are of a history of substance abuse.

The full video is available and can be viewed at Tilem & Campbell's media page along with other videos of partners Peter Tilem and John Campbell in the news.