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.