The above is Part Eight from a lec­ture given by Attor­ney Justin J. McShane before the North Car­olina Advo­cates for Jus­tice “Advanced DWI Sem­i­nar”. This sem­i­nar hap­pened on Feb­ru­ary 26, 2010. It was orga­nized and hosted by John K. Fan­ney, Esquire of Fan­ney & Jack­son, P.C. The fol­low­ing is a tran­script of this video:

The rea­son that is impor­tant is for under­stand­ing the process of indi­rect mea­sure. Remem­ber I was talk­ing about my daugh­ter. You can put her on a scale and find out how much she weighs, or I can hop on the scale first and find out how much I weigh, and then put her on piggy-back style and find out how much we weigh together, and deduct my weight from the total to deter­mine her weight. This is indi­rect measure.

That is what is hap­pen­ing here with hos­pi­tal blood test­ing. With hos­pi­tal blood test­ing we have this mol­e­cule which is ethanol and we add a reagent or an enzy­matic process from NAD and it turns into NADH+ and it trans­forms from the orig­i­nal ethanol into acetalde­hyde through alco­hol dehy­dro­ge­nase. That is the chem­istry of it.

I don’t really expect any­one here to under­stand the chem­istry but I am going to show you why this impor­tant. If you have lac­tate and apply this same prin­ci­ple of tak­ing NAD + and con­vert­ing it to NAD+H lac­tate dehy­dro­ge­nase it results in pyru­vate. The prob­lem with the way the hos­pi­tal blood is set up is that it is only look­ing at one par­tic­u­lar wave­length and it is only mea­sur­ing this por­tion, which is iden­ti­cal to lac­tate. This machine can­not tell whether the reac­tion is due to ethanol, mean­ing some­thing your guy took, drank or lac­tate.  It is blind to that dif­fer­ence. If you are in an acci­dent, if it’s using TCA it can­not tell the dif­fer­ence when this reac­tion occurs and when that reac­tion occurs. That is why you have watch for lactate.

Again, this is the entire spec­trum.  We are only look­ing at the 340 range. To be very spe­cific on how it is done and how it works, this is the absorbance, this is the wave length and we are only focus­ing on the zoomed in arti­fact instead of the whole thing.

The way it works is, instead of mea­sur­ing the reac­tion def­er­ence to an enzyme at a spe­cific wave length, hos­pi­tal analy­sis is by enzy­matic acid. As we talked about before, this is what hap­pens nor­mally.  This is what we would expect the spec­trum to look like if there is no ethanol in it. When you add the NAD+ and do the process, you have this red line that is iden­ti­cal until it gets to about the 320 range but remem­ber we are look­ing at the 340 range. By adding that process it makes the dif­fer­ence in the out­come of the wave length. It is like putting myself on the scale with my daugh­ter on the back of me. It is designed to mea­sure the dif­fer­ence as opposed to the unique­ness of alco­hol. There are stud­ies out there, it isn’t just ‘McShane says so’. You can read it. This is a graph that is impor­tant that high­lights the dan­ger of it.

We are look­ing at the 340 wave­length. What they did in this par­tic­u­lar case study is use a sub­ject with no alco­hol, add trauma, TCA, lac­tated ringers and at the end you will get this over infla­tion. The prob­lem is that there are no stud­ies out there that show the con­trib­u­tory error. There is no way to sub­tract it from the process when lac­tated ringers are involved. The sci­ence does not exist. The most impor­tant thing is it is junk, it just doesn’t work.

There is a won­der­ful arti­cle that you can Google by our good friend Joseph Cit­ron titled DUI/DWI: Hos­pi­tal Lab­o­ra­tory Test­ing Lacks Foren­sic Reli­a­bil­ity.

The end results, you get quotes like this, ‘most hos­pi­tals use a vari­a­tion of enzy­matic acid test­ing known as enzyme immunoas­say or EIA’s of serum. This tech­nique lacks the speci­ficity to mea­sure only ethanol. EIA is the most com­mon chem­i­cal process in hos­pi­tal laboratories’.

It is not spe­cific and unfor­tu­nately, there is no way to mean­ing­fully con­vert from a plasma blood result to a whole blood result in order for some­one to come into court and say as an expres­sion of his whole blood he was a .058 based on hos­pi­tal blood method.

There is no agree­ment among the aca­d­e­mics. It is over­stated. They all agree that if you do a plasma or serum test it always over­states how much alco­hol is in the sys­tem but they do not agree on how much. The prob­lem is that the con­ver­sion fac­tor is any­where from as low as 1.18 over­state­ment, or 18%, to as high as 1.59, or 59% as I shared before. If you have that large of a swing, that is not gen­er­ally accepted in the sci­en­tific com­mu­nity. I would not fly on a plane that says, ‘we are about 41% right that we are going to be head­ing in the right direc­tion’. The bot­tom line is, it is absolutely guess­work. There are no con­ver­sion fac­tors that exist that any­one can agree to.

We talk about the analy­sis of mar­i­juana and specif­i­cally cys­tolithic hairs. These are dif­fer­ent non-forensic meth­ods of test­ing; the botan­i­cal ones we talked about before. I want to expose you to thin layer chro­matog­ra­phy and exactly what it is.

Thin layer chro­matog­ra­phy is very easy to under­stand. If you have ever seen a bounty com­mer­cial where some­one spills some­thing and it is the ‘quicker-picker-upper’; some­one spills some cof­fee, ‘don’t worry about it, I have the world’s great­est paper towel and they quickly pick it up. Have you ever seen the com­mer­cial where they say, ‘ours is so great we can lay it on its edge and it is so absorbent that it sucks every­thing up’?  That is, in essence, thin layer chro­matog­ra­phy although they do not explain it that way. It is based on what is called cap­il­lary action which is the draw­ing up from the bot­tom. It is very com­mon in dif­fer­ent drug abuse test­ing and it is just bad. There is no other way of putting it. It is not spe­cific.  It is not quan­ti­ta­tive.  It doesn’t tell you how much of any­thing.  It only tells you, much like this, that it may be present.

The above is Part Seven from a lec­ture given by Attor­ney Justin J. McShane before the North Car­olina Advo­cates for Jus­tice “Advanced DWI Sem­i­nar”. This sem­i­nar hap­pened on Feb­ru­ary 26, 2010. It was orga­nized and hosted by John K. Fan­ney, Esquire of Fan­ney & Jack­son, P.C. The fol­low­ing is a tran­script of this video:

One of the ques­tions that gets asked some­times is “Why can’t the machine test whole blood?” The rea­son why it can’t test whole blood, I’ll explain here in a minute, it’s the way it’s set up. When you do hos­pi­tal blood tests it’s an enzy­matic method involv­ing a reagent. It’s col­ori­met­ric and spec­trom­e­try based upon Beer’s law.  And what does that mean? The most impor­tant thing to take away is this slide up here.

It is not selec­tive and it’s not spe­cific.  What I mean by that is it is not some­thing much dif­fer­ent than this right here. This is not selec­tive. It’s not spe­cific. It’s so bad that if you had dark choco­late, I’m from nearby Her­shey — I didn’t bring down a Her­shey bar this time.  If you put a Her­shey bar in this thing, you put crushed up Tylenol PM inside of here, you put in a lot of things it can put in a false pos­i­tive. Same thing that hap­pens here.

And the biggest source of inter­fer­ence is by what’s called lac­tate and we are going to show you why lac­tate is what you are look­ing for. Ringer’s lac­tate is an IV solu­tion that’s given dur­ing trauma or when they think some­one is going to go into shock. If you have ever seen any of the ER shows it’s sit­ting there and they are giv­ing it in the person’s arm, and they are car­ry­ing through and every­thing like that. It’s called fluid resus­ci­ta­tion and what it does is it’s pump­ing through a bunch of elec­trolytes and lac­tate in hopes that you don’t go into shock and not die of your injuries but die of shock. It is almost uni­ver­sally used in every sin­gle acci­dent case that is out there and any sort of injury that is out there.  But it gets bet­ter than that. It gets infused, and what I mean by that is they often­times put them in both arms and they set it there, and they squeeze the bags in order to get it into the blood as quickly as pos­si­ble. That is how you get the admin­is­tra­tion of lactate.

So what you need to do is when you have an acci­dent case that involves an emer­gency room and enzy­matic assay test, hos­pi­tal blood test­ing (and that is how they are try­ing to get your client) what you need to do is you need to take a look at the admis­sion charts that go in there because they should be record­ing what’s in each person’s arm and body as they come in.  But more impor­tantly the most use­ful that I find is sub­poe­naing the ambu­lance crew and they have their own doc­u­men­ta­tion that is out there, and also their replace­ments so you can know specif­i­cally.  Because as soon as they are done using their Lac­tated Ringers they have to order a new one. That is the type of thing that you should be tak­ing a look at.

Two other things, what else releases lac­tate? Trauma. Soft tis­sue trauma. Heart tis­sue trauma.  If you are in a car acci­dent and you break your leg, espe­cially your femur then it will release lac­tate. If you are beat up, if it is soft tis­sue dam­age inside, like the steer­ing wheel hits your ribs and cracks your ribs and hurts, you that can release lac­tate. Remem­ber the words TCA? TCA is where they got the depro­teiniz­ing agent.  Believe it or not is the very process of adding TCA, you release lac­tate.  So think about that. That means that every sin­gle time that you are using TCA you are going to be jack­ing up your BAC result.  Tell me how fair that is. It is impos­si­ble to tell what is alco­hol and what is lac­tate and I will show you why. The con­clu­sion for hos­pi­tal blood is it is not selec­tive. It’s not spe­cific.  It’s cer­tainly not foren­sic and it belongs nowhere inside a court­room whatsoever.

We are all at least famil­iar with the way that a breath test machine works and an infrared breath test machine in par­tic­u­lar, and that is based upon IR or infrared, and that is based upon Beer’s Law, the prin­ci­pal of Beer’s Law. You have an infrared light source, and the way that it is sup­posed to do the mea­sure­ment accord­ing to Beer’s Law is as it goes through the sam­ple cham­ber. If there is noth­ing inter­fer­ing with it, when it hits the detec­tor it should be at the same exact inten­sity.  So the arrow does not become smaller, it remains the same. As it is going through if there is noth­ing there to inter­fere with it the same amount of energy hits the detec­tor. We all know that because you guys are a great breath-testing state. If you put in a mol­e­cule of inter­est, let’s say alco­hol, inside that sam­ple cham­ber it inter­feres with it and it shakes it up kind of, it’s asym­met­ric; and then the amount that it starts out is decreased because it is absorbed by that par­tic­u­lar mol­e­cule as it hits the detec­tor. That is how you know how much alco­hol, what they say that the prin­ci­ple of alco­hol breath test­ing is based upon.

No dif­fer­ent in hos­pi­tal blood test­ing.  In hos­pi­tal blood test­ing it’s based upon again that uptake that’s involved. This is the spec­tra of ethanol. This is the wave­lengths of, if you were to take it out over the entire spec­trum as far as what it looks like. As we have prob­a­bly been exposed to before, and I only use it to illus­trate how bad hos­pi­tal blood test­ing is, with an Intox­i­lyzer 5000 or most of the other mod­els that are out there it is a three fil­ter process or a five fil­ter process, mean­ing that it is designed to take a look at cer­tain wave­lengths at cer­tain points in time that may not be unique to alco­hol.  In fact it is designed not to look for ones that are unique to alco­hol as opposed to any­thing else that comes out there. The most impor­tant thing is that it is a three to five fil­ter process. It is look­ing at three areas or five areas. Hos­pi­tal blood test­ing looks at one. One. It is less spe­cific. It is junkier because it only looks at that one wave­length. It only looks at one of the 340 wave­lengths that are there.

The above is Part Six from a lec­ture given by Attor­ney Justin J. McShane before the North Car­olina Advo­cates for Jus­tice “Advanced DWI Sem­i­nar”. This sem­i­nar hap­pened on Feb­ru­ary 26, 2010. It was orga­nized and hosted by John K. Fan­ney, Esquire of Fan­ney & Jack­son, P.C. The fol­low­ing is a tran­script of this video:

This is an exam­ple from a case that we just went to trial on. When you blow it up, this is the infor­ma­tion you get from the Lab­o­ra­tory Infor­ma­tion Sys­tem. It is a one sheet con­clu­sion. What the one sheet con­clu­sion is when you blow it up, just says .127 abnor­mal results for alco­hol, but if you notice it says ‘whole blood’. It is not an expres­sion of whole blood. Unfor­tu­nately for your client, most of the time you sit there and go “Oh my God, he’s screwed,” right? But that is only because you take a look at that one sheet of paper. Let me ask you a ques­tion. If you got a police report that sim­ply said, your client was drunk. Would you just say “I give up,” “I’m done”? Why do we do that when we get a result? Why do we say, “We got one piece of paper that says .127 whole blood, well geez, I’m done”?

You would not accept that when a police offi­cer tries that busi­ness. Don’t accept it when a lab tries that busi­ness. The devil is in the details. You know the process. What comes out of the machine is not a whole blood result but they are report­ing it as a whole blood result. The rea­son you can catch them is, not by just know­ing the SOP that we just went through, but you can also take a look at the details. This is the instru­ment ticket. This is what it actu­ally prints out or some­thing like this depend­ing on your machine. We are going to blow it up and take a look at it. This is from a dif­fer­ent case but this is one of the best illus­tra­tions that are out there. Some mood music. It’s tran­quil. You get the evi­dence ticket that comes out of the machine and you can see very plainly, it says serum. That is why you have to go back and not just accept the police offi­cer say­ing your guy is drunk. Don’t accept the ana­lyst com­ing in and say­ing your guy is a .127. Peel back the onion, go get the tick­ets and you can see right in there that it is a serum.

Yes?

Male: Just a quick ques­tion. When it cen­trifuges and the lighter stuff comes to the top then is the alco­hol one of the lighter things? Isn’t that basi­cally what is going on?

Yes. Of course if you think about it, it makes a lot of sense. We know in our daily liv­ing what alco­hol is like. Blood is a lot heav­ier than that because of all the junk in it. You are right. It does sep­a­rate alco­hol to the top, which is a good point.

You can catch them with their own stuff inside the lab when you peel back the onion but it gets more com­pli­cated than that. This is what’s called the cal­i­bra­tion curve. It is impor­tant for you to know what it means. The cal­i­bra­tion curve is the way the ana­lyt­i­cal device is shown to be within tol­er­ant range. That it is accu­rate and pre­cise. You don’t have to be a rocket sci­en­tist to under­stand a lot of this stuff. It is low hang­ing fruit that any­one can under­stand. They are try­ing to run through the machine to make sure it is accu­rate and pre­cise and they are com­par­ing known stan­dards and see­ing what the machine does with that. The rea­son it is low hang­ing fruit is because it will tell you often times the prob­lems that go along with it.

Blow­ing this up, we take a look at it. You can right here, it is in your mate­ri­als, and it says cal­i­bra­tion sta­tus not accepted. Who in this room would think that means the thing is okay? You do not have to be an ana­lyt­i­cal chemist with a PhD to real­ize that if some­thing isn’t cal­i­brated it isn’t work­ing right. It is not good. Then if you take a look a lit­tle fur­ther down, I don’t know what this means, but I found out what it meant. It has neg­a­tive num­bers. If you are mea­sur­ing some­thing, espe­cially some­thing like alco­hol, think about this, zero means noth­ing. How can you have a neg­a­tive value, is it really, really not there? You have to really think about these things. It even says error assay range but because it’s good enough for gov­ern­ment work what does the ana­lyst do? The ana­lyst says A-okay.

Yes?

Male: What you have on the screen, is that a lab report? And, how would we get that?

You are going to request the cal­i­bra­tion curve. One of the things I will do is email my super sub­poena that I have in dis­cov­ery request and it will be in the liege of doc­u­ments you have there. Par­tic­u­larly, how you are going to get it is through sub­poena. Ask­ing for it and insist­ing that you get it using these types of things as exam­ples of what can go wrong. Like I said, it is low hang­ing fruit.

In this par­tic­u­lar case, we have five years’ worth of data on this par­tic­u­lar machine. From the date of this, which was July 30, 2007 and they cal­i­brate it every sixty days, because he forced an agree­ment and said it was ok. Every­one for that sixty days was get­ting screwed. That is a lot of peo­ple. The next time they came out, they did a new cal­i­bra­tion curve that is there and again, you don’t need to be a rocket sci­en­tist. On this one, the low range value says it was out­side the assay range. In this par­tic­u­lar one, again what you have is the high val­ues. They couldn’t get it right low. The next time, they couldn’t get t right high. They just couldn’t get it right and they couldn’t fig­ure it out so they just kept on test­ing peo­ple. You bring this in front of juries. You bring it in front of judges.

Judges will under­stand that because it is low hang­ing fruit and it says stuff like not accepted. Not accepted, that is pretty pow­er­ful lan­guage. It is some­thing you really need to take a look at and it doesn’t require rocket sci­ence. You just have to be exposed to it by com­ing to these great sem­i­nars and know­ing that it is out there instead of just accept­ing one piece of paper, don’t accept the traf­fic cop’s say­ing, “You’re guilty.” Don’t accept the lab sci­en­tist try­ing to do that same jazz. Make sure it is right. Be their exter­nal val­i­da­tion check. Then you get beau­ti­ful stuff like this. North­ern Penn­syl­va­nia, extremely rural, I asked for the dis­cov­ery on this par­tic­u­lar case, I am not going to say what county it is in — I have redacted a lit­tle bit of it because it is going to be lit­i­gated. It is going to be like a Pearl Har­bor moment in their life. They are not going to see this coming.

When I asked for it, this ana­lyst, basi­cally what it says here in the sam­ple is, plasma and they put on their ticket, “When com­plet­ing whole blood alco­hol put a line through ‘plasma sam­ple’ and write in whole blood fil­trate on all print­outs.” You can’t make that stuff up. That hap­pens out there. It prob­a­bly hap­pens in your state. And it is not because this per­son is try­ing to be a crook. It is because the machines are run by oper­a­tors who are not hard-core sci­en­tists. Gen­er­ally they are peo­ple who have an Associate’s degree or were nurses and they wanted to work in the lab because they got sick of work­ing with peo­ple so they got re-tasked, reas­signed. It is not like they are try­ing to screw your clients. They don’t under­stand the dis­tinc­tion and how impor­tant it is but you can under­stand it.

It is not really impor­tant that you under­stand all the jibber-jab that is inside the machine. You just have to under­stand the process. You have to under­stand that there is infor­ma­tion out there that you should be get­ting in order to make things right. Again, whether or not you know the par­tic­u­lar sci­en­tific break down of the machine is not as impor­tant as under­stand­ing the processes.