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.

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