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DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 5- STERILIZATION OF THE SKIN

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.
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