Drug Identification & Chemical Testing for DWI Defense
Interest in DUI Cases & Science
Kevin Leckerman: So let’s talk about blood and urine collecting and testing. I can see the excitement on all of your faces, the joy in your eyes – finally you get to hear about blood and urine testing. You know, that was my point of view when I was practicing – when I started out at the public defender’s office in Buck’s County. I worked there for five years. That was the beginning of my career, and I wanted to do – and I did do and I enjoyed doing – the murder cases, the robbery cases, the drug cases, assault cases. Everything but DUI is what I liked to do. And when it came to a DUI case, I thought, “Well, these are the worst cases. I don’t want to have anything to do with them.” I’d look through the case and I’d see if there were any Fourth Amendment seizure issues that came up, and if I didn’t see it, and if there was a blood result, I thought, “Well, what am I supposed to do here? There was a good stop, good arrest, they got a blood result, and the lab says the guy’s a one-two. What am I going to do? These cases stink.”
That was my old attitude. Then I left and started working for a DWI law firm. I was doing my criminal stuff and I had to handle the DWI work as well, and then my boss at the time started sending me out to do training with field sobriety testing, blood testing, urine testing, breath testing, drug recognition evaluation. I started to learn what’s behind the curtain, and that just because there’s a number on a paper, that absolutely means nothing. So I changed my attitude around to the point where I actually became the lab geek, and I went to courses. I’ve been part of the National College of DUI Defense for a number of years. I took advantage of that, and I went out to Chicago to [inaudible 00:04:18], got training through the American Chemical Society – hands-on training with gas chromatography (testing solid drugs). I’m going back out again in June to do even more training.
For me, I’m the type of person who likes to learn visually, auditory, and hands-on. I need to get there. I’ll talk about this in a little bit, but I need to do the sampling for testing. I need to load it into the machine. I need to run the machine, which I did, and set it up to be run. I needed to utilize the computer system to analyze the data. And that’s how I started to understand.
So in this first shot, that’s the gas chromatograph, mass spectrometer, and then I’m loading onto a carousel for auto-sampling, which I’ll get into in a little bit. And in the back is one of my course instructors. So that is how I do this now.
I’m assuming that all of you are here because you’re truly interested in DWI law. If you’re truly interested in DWI law and you want to be the best at what you do, you have to learn the science. You have to do it. There are plenty of people out there who don’t know the science who get along very well. They know the case law. They understand the Fourth Amendment issues. They’re good at cross-examining. They know field sobriety testing. But it takes somebody to have an actual interest in the science to understand that that number on that piece of paper is meaningless unless you can prove it to me. Any scientist worth his or her salt will acknowledge that number means nothing unless you can prove it. They have to show you the data to prove it. You’re already going to have a leg up on anybody out there who hasn’t taken a course like this but I’m going to give you a little bit more information. There is a book on basic gas chromatography that I’m going to recommend to all of you. It’s a short read. It’s about 170 pages. It goes quickly, and it is from a scientist. It’s not a defense attorney who wrote this. Harold McNair wrote this. He’s one of the guys who trained me. He’s one of the foremost gas chromatographers in the world. It’s called Basic Gas Chromatography. If you’re going into this practice, just get this book on Amazon. It doesn’t cost much. Take a couple days to read it and like I said, you’ll have a leg up on all your competition.
Blood Collection v. Urine Collection
Kevin Leckerman: So what I’m going to go into first is blood – taking blood, and then I’m going to talk about sampling blood, testing blood, and interpretation.
I am going to talk about urine as well, but when it comes to urine and testing for ethanol content, it doesn’t really happen in New Jersey. It barely happens in Pennsylvania, but it doesn’t happen in New Jersey. Out of the thousands of cases that I’ve handled, one case had urine testing for ethanol content and that was simply as a confirmatory test for breath test result. That was it. I don’t know why they did it. The process of urine testing is fairly unreliable. No scientist is really going to be able to come up with an opinion to a reasonable degree of scientific certainty concerning alcohol content through urine testing for a number of reasons. Again, I’m not going to go into it tonight because you’re really not going to need to know too much about it. But obviously with urine collection you’re just peeing into a specimen container and that’s about it.
Blood collection’s a little bit more complicated.
First, we’re going to talk about the qualifications of the person taking the blood. Then we’re going to blood kits, the contents of those kits, and the manner in which samples must be drawn. The good way to do it leaves the driver or the person who’s arrested happy, and it makes the scientific process more reliable. The bad way of doing it is where you have somebody who’s not so qualified. I’m sure we’ve all been through it where you’re getting blood and the person is just poking you three or four times.
Blood Kits & Errors in Blood Collection
Kevin Leckerman: We’ll talk about the kits first. Generally in cases where there’s blood testing, there are only finite reasons why blood testing is going to come into play. I’m sure you’ve all learned at this point that breath testing is what’s done in New Jersey and on rare occasions, blood testing comes into play.
What’s your name?
Kevin Leckerman: Can you think of any reasons why blood testing would come up?
Jill: It’s more evasive.
Kevin Leckerman: That’s true, but why would a police officer want blood as opposed to breath?
Jill: It’s more accurate.
Kevin Leckerman: That’s true, too, but the police rarely keep that in mind. What’s your name?
Chelsea: Chelsea. The person is unconscious. If they got in an accident and they suspect the driver is a DUI, they take blood because you can’t breathe when you’re knocked-out, right?
Kevin Leckerman: That’s it. So, in most of these cases it has to do with somebody who was in an accident, somebody who couldn’t participate in field sobriety tests, somebody who talked about an injury. Typically the person is taken by ambulance to the hospital; they are being tested there. For the case, really the prosecution in these situations are relying on blood test results. They don’t really have much else – they have an accident and blood test results. That’s why it’s so important to know this information and to be able to really take out the entire case by, first, getting all the discovery that you need in the case and then, second, attacking that discovery.
What happens when the police officer gets to the hospital is that typically the officers have kits that they carry in their cars. The ones that I’ve seen for the most parts are NIK kits and these NIK kits are manufactured in New Jersey. The kits have a number of things in them and I brought one I’ll pass around in a moment. They have the swab to swab the skin and make sure that it’s good for the blood draw.
What is your name?
Kevin Leckerman: Jay, why do you think it’s essential to make sure that the puncture site is a clean site before taking out blood?
Jay: To get uncontaminated blood?
Kevin Leckerman: You got it. That’s it: uncontaminated blood. There’s a particular way to do it, and this go to either the nurse or typically a phlebotomist of some kind. You never get a doctor in these kinds of cases. I don’t think I’ve ever seen a case where the nurse does the job properly while cleaning the site.
First you need iodine or another non-alcoholic swab. You can have alcohol swabs, but there is the line of thought that if you have ethanol in the swab, that is going to contaminate the blood. That’s true. But there are other alcohol swabs, like isopropanol. That’s not necessarily going to affect the results. There may be rupturing of the blood – hemolysis, which I’ll talk about in a little bit – through the use of isopropanol, but unless really ethanol is used in the swab, it’s not going to affect the results.
Student: Why not Betadine? Why only the povidone-iodine?
Kevin Leckerman: From the research that I’ve read, Betadine does potentially have alcohol in it. Povidone-iodine does not have any in it.
Nurse gets the swab out and concentric circles away from the anticipated venipuncture site – when I say venipuncture, that’s where they’re sticking the needle.
You’re pushing the dirt and contamination away from the site. That hardly ever happens. If you go to trial and you ask the person taking the blood, “What did you do?” and they say, “I just rubbed it up and down,” they’re just taking that dirt, that oil, that contamination and pushing it back and forth on the same site. Now, for practical reasons, is the judge going to throw it out for that reason? Not necessarily, but when you start building this case and you start with the first part of this case, which is the blood coming out and cleaning that site, if the nurse didn’t do it properly that’s when you’re starting to build your case against – or if you’re a prosecutor, for – the admission of this blood test result.
In these kits, as I said, you have the foil package for the swab. Now, in discovery you’re going to ask for not only a picture of the kit – which you may not get, probably won’t get but certainly will ask for – and now know that there are reasons why you need this and you can explain it to the judge that the kit itself has an expiration date on the outside. That expiration date doesn’t necessarily have to do anything with the contents inside. You may be asking, “So then why is there an expiration date on this kit?” And to be honest with you, I have no idea why it would be on the box because it’s just a box. Nonetheless, it’s on it, and from a defense point of view, that’s something you could argue. The kit itself is expired. Why would they put an expiration date on it if it didn’t have some type of importance? Nonetheless, inside the kit you have the swab and the foil containing the swab is embossed. Now how many of you think that the nurse actually keeps that foil package as opposed to throwing it out? Anybody here think that occurs? It doesn’t. But you can get one of these kits online. If you go to trial, you can break it out as demonstrative evidence, open it up and show that there are expiration dates on these swabs. Do you think that the nurse actually looked at the expiration date? I guarantee you not.
The last thing that the nurses want to do in these situations is deal with potential [inaudible 00:16:10]. They want to get them in, get them out, and deal with the more important people in their lives that they have to deal with, so they’re not paying attention.