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.