Drug Identification & Chemical Testing for DWI Defense
Kevin Leckerman: A vacutainer is basically a glass vial with a rubber stopper on it. It goes into a housing (and you’ll see pictures of that in a second) with a needle on the end of it. The vacutainer has a vacuum in it. It’s vacuum-sealed. Once the needle goes into the vein, and then you actually push the vial, puncture the rubber stopper so the vacuum actually sucks up the blood and it’s supposed to suck up ten milliliters of blood. That’s what the vacuum is supposed to do if it’s intact. Typically it’s BD – Beckton-Dickinson – brand of vacutainers that are used and these NIK kits are BD, but there are other vacutainers as well. Now, you can go online to the BD website and they have a list, a chart of the various vacutainers and what they’re used for. In particular, the ones that are used for blood collection are grey-top tubes and they have two types of chemicals in them: an anticoagulant, which is something that prevents blood clotting; and a preservative, which is typically sodium fluoride. The anticoagulant can be ETA or potassium oxalate. Nonetheless, both of those chemicals need to be in those tubes for a number of reasons.
The chemicals themselves do not have an expiration date. The tubes do not indicate how much of that chemical is in that vacutainer, and you cannot get that information. Again, there should be a certain amount of sodium fluoride as a preservative in these tubes. So for every milliliter of blood – again these tubes are ten-milliliter draws – there should be ten milligrams of sodium fluoride. So 100 milligrams of sodium fluoride should be in those tubes. How do you know this? There’s really no good way. Certainly, the officer is not going to be able to tell you, the lab is not going to be able to tell you, and the nurse is not going to be able to tell you. You have to go to the manufacturer and somehow get a certification. There is no certification that comes in these kits. What does come in the kit is a Certificate of Manufacturer that says this is a new and unused kit, which seems to me to be an important aspect.
This is information that most attorneys don’t ask for in discovery but all of you should be asking for in discovery, because wouldn’t you want to be able to guarantee that the kit that’s being used to take your client’s blood – or even from a prosecutor’s point of view – that it’s an unused vacutainer and there’s a certificate guaranteeing that it’s new and unused?
On the tubes themselves there are expiration dates. So what does that mean? Again, it’s not an expiration date for the actual tube or for the chemicals. It’s an expiration date essentially for the rubber stopper. Rubber bands, after a certain amount of time, get old, dry, cracked, break. Rubber stoppers do the same exact thing. Over time, they get dry and let in air. It affects the vacuum and can cause contamination.
I’m going to pass this kit out so you can take a look at it.
What I find interesting is that these BD vacutainers are not manufactured for detecting ethanol. They’re actually designed for glucose analysis. Essentially members of the forensic scientist community decided that these would be good for our purposes due to the sodium fluoride and the anticoagulant, but that’s not what they’re designed for. The sodium fluoride is a glycolytic inhibitor. What does that mean? The glycolytic inhibitor is to prevent your cells from utilizing the glucose, the sugar – everybody’s blood has sugar in it – and that’s the principal also behind preventing contamination from affecting the blood alcohol content that this anti-glycolytic agent is preventing contamination from eating away at your sugar in your blood.
Microorganisms & Contamination
Kevin Leckerman: Here’s a vacutainer going into the vein. If done improperly – because let’s say, there is an expired tube that is used or the nurse didn’t do the job properly – then microorganisms that are everywhere can get into that blood sample. One microorganism that has been studied and can affect blood alcohol levels in a sample is candida albicans. It’s not actually a bacteria; it’s a fungus. What it does is it thrives on the sugar in your blood. So, if, let’s say, there is a rubber stopper that’s compromised in some way and air gets into it, there’s a good chance that there’s going to be some kind of microorganism coming into it.
Candida albicans: you can’t see it but it’s on your skin, in the air. If you ever leave a grape out at room temperature for a time and you see the white film that starts to form on it, that’s the candida albican starting to work on any of the sugars on the outside of that grape.
There are three things that are needed to start the process of contamination of blood and causing what’s called neo-genesis or endogenous alcohol production. Alcohol that was not in your blood system when it was in your body somehow gets produced because of these microorganisms. The organism starts utilizing the sugar – the glucose – as food, and if there’s the right temperature – it only has to be room temperature – then it starts producing alcohol, as a byproduct, essentially.
We talked about the expiration of the vacutainers. How can you know that there’s possibly an issue, even though the lab may say it doesn’t mean it’s a bad draw or there are microorganisms contaminating? How can you show this? Well, it’s a vacutainer, so if there’s any compromise in the vacuum, it’s not drawing the ten milliliters.
When the lab gets the sample, there’s going to be something called the toxicology worksheet. You want to ask for a toxicology worksheet because the chemist is looking at the blood vial, measuring the blood vial, and writing down how much is in there, so six milliliters, nine, ten, whatever the case may be. If you have nine or ten milliliters then you know the vacutainer is doing its job. If you have a short draw where there is six or even seven, that could mean there’s a compromise with the vacuum or the person drawing the blood didn’t do the job properly – maybe they didn’t put the vacutainer into the housing unit or didn’t draw the needle properly so it wasn’t flush against it so again there was a compromising situation with the vacuum – or the needle was just pulled out prematurely. There could be some issues – I’m not really going to get into what the salting out effect is, but sodium fluoride is there to preserve the blood and prevent this endogenous alcohol formation. However, if you have too much sodium fluoride in relation to the blood, then what happens is the salting out effect and it actually causes rupturing and there’s more alcohol in the blood sample, but for most laboratories that is not an issues because they’re testing properly and they’re using what’s called an internal standard – which we’ll get to in a little bit – so the salting out effect isn’t really much of an issue.
So with the potassium oxalate and EDTA – they’re anticoagulants and what that does is prevent clotting. Clotting is going to take the red blood cells, bunch them together, and really separate the whole blood into a serum, which is going to affect the accuracy of the test itself. Now, many lab people will come to court and say, “I know there was no contamination here because I didn’t see any clotting. I know that the nurse did her job with the blood draw and she prepared everything properly and I know that because I just didn’t see any clotting.” Well, there’s something called micro-clotting, which cannot be seen by the eye but if you use a microscope you can see it, and of course, the lab people didn’t do that.
One thing I didn’t tell you is that with the vacutainers, these people have to make sure the chemicals are properly mixed with the blood. So when they take the blood they’re not supposed to shake it up because that could cause potential rupturing of the red blood cells. What they’re supposed to do is take the vial and invert it – down and up and that’s one inversion. If you go to the BD website it will list how many inversions for each type of tube, and for the grey-top tube it’s eight to ten inversions. Again, this is an issue that I always come across: where the nurse does not do proper inversions.
I had somebody call me the other day; she’s a nurse and she’s charged with DUI. I asked her, “Did you see if the person who took your blood do the inversion?” She said, “Absolutely not.” So that’s an issue that often comes up. Really, the training that the people drawing blood have – they don’t know how many inversions you’re supposed to do.
So as I was saying before, if the vacutainer does not properly go into its housing unit where it is flush against it, what can happen is air can get in and be sucked up as well and that’s where the contamination occurs.
There are potential issues with long draws. I don’t know if that’s so much of an issue. These are ten-milliliter tubes; they have enough chemicals in them for ten milliliters of blood. A long draw would mean you’re having 11 or 12 milliliters. How do you get 11 milliliters in a ten-milliliter tube? That’s a good question. However, again, you want to get this toxicology worksheet and it’s going to say how many milliliters. So if the chemist is going to say, “I don’t know, but it’s 11 milliliters,” then there is a potential issue of diluted preservative, diluted anticoagulant, and again, that can cause issues.
Now in the New Jersey State manual it says there must be immediate refrigeration of blood samples, because the best way to prevent contamination from causing endogenous alcohol formation is to put it in a refrigerator that’s close to freezing and that’s going to stop the process, in addition to the preservatives.
Now I don’t know if you’re aware, but with the New Jersey State Police they also have the New Jersey State Police laboratory, so it’s all in one.
BD says that with the vacutainers they should be stored within five to seven days and tested within the expiration date of seven days. Sometimes that doesn’t happen. You’ll get your chain of custody forms – and for any of you that don’t know what chain of custody is, it’s just forms that basically show who touched the evidence, where they put the evidence, when they took it out of the refrigerator – and this chain of custody will show when it got to the lab, who put it in the refrigerator, who was the chemist responsible for taking it out. Did the chemist put it in her own little refrigerator and leave it there? You want the chain of custody for that. And then you get to see if there was an issue with the timing of the test.
There are two well-known studies that have to do with contamination, not only with candida albicans but also with other contaminants that are out there. The first one: Blume and Lakatua, 1973 – if I remember correctly that one had to do with postmortem blood. So it was a dead guy’s blood that they were testing and there are some issues with postmortem blood where there can be some neo-genesis of alcohol after the person dies even without contamination necessarily, but –
Chris: That was an aggressive prosecutor. They were prosecuting for DUI.
Kevin Leckerman: [Laughs]. Right.
And then you’ve got Chang and Kollman; they were using in vivo blood so it was a live person’s blood, and it was a more recent study. These studies show that after two hours, if there’s contamination of the blood, you have alcohol formation. And when I say “alcohol formation” I’m talking about ethanol. There are isopropanol, methanol, and ethanol. And Chris may disagree with me on this, but you can be prosecuted and found guilty of a DWI if you have any of those three alcohols in your system. The problem that occurs is how do they prove isopropanol or methanol? Laboratories are looking for ethanol and they don’t necessarily have their systems set up to look for isopropanol. If their systems are set up properly they’re going to be able to detect isopropanol, but not quantitate it – not find out how much isopropanol there is. So, can a lab prove it? Probably not.
So if you’re going to use this defense, you’d say, “Hey, there’s alcohol in here but my client didn’t have alcohol in his system or certainly didn’t have much alcohol in his system. These microorganisms and fermentation caused it.” Well, at 0.13% the alcohol actually starts to kill off the microorganisms, so above 0.13 you can’t really make that argument.
Basic question, but who here thinks that labs can tell the difference between alcohol that was in your blood at the time of the draw and alcohol that was formed by microorganism contamination? Right, they cannot. It’s all ethanol.
Student: Going back to that slide that says fermentation stops at 0.13% – you’re saying you can’t argue contamination, so the alcohol starts to…. Can you explain that?
Kevin Leckerman: The alcohol can start to build in this blood sample to 0.13, and at 0.13 it actually starts killing off those microorganisms. There’s so much alcohol in the sample that the microorganisms start to die. So if it’s at 0.22, you’re not arguing that all of that alcohol was caused by neo-genesis formation.
Student: Because if there are organisms at that point it wouldn’t cause that.
Kevin Leckerman: Exactly, it wouldn’t cause that additional alcohol.
Student: How much sugar is in those ten milliliters of blood? So if you took a clean sample of blood and you contaminate it, how much alcohol can it produce in those ten milliliters?
Kevin Leckerman: At least up to 0.13.