Oklahoma DUI Blood Test Issues

Blood test issues

In matters of style, swim with the current;
in matters of principle, stand like a rock.

Oklahoma has approved two separate chemical tests to determine a person’s alcohol level.  The first approved test is a breath chemical test analyzed by the Intoxilyzer 5000 or Intoxilyzer 8000.  The Intoxilyzer is discussed in detail in Chapter 14, “GIZMO, MACHINE, or INSTRUMENT?”  The second approved method is blood testing.

Most states, including Oklahoma have Implied Consent Laws which, in layman’s terms, means when you are driving a car on a public roadway, it is assumed that you have given consent to having a chemical test performed if you are suspected of driving under the influence of alcohol or other intoxicating substance.  As the driver, you have the right to refuse the test but refusing the test results in an administrative suspension of your driving privileges.  This suspension can be challenged in the same manner as a suspension for a chemical test result showing an over the legal limit of .08 breath/blood alcohol level for persons over 21 and .02 breath/blood alcohol level for persons under the age of 21.

The choice of whether a breath chemical test on an Intoxilyzer or a blood test is administered remains with the arresting officer.  The officer must follow certain guidelines established by Oklahoma Statutes or the Oklahoma Board of Tests.  First, in order to request a test, the arresting officer must have a valid arrest. The officer must inform you of your rights as afforded by Oklahoma’s Implied Consent law.  These rights include the right to request an additional chemical test of the driver’s choice, the right to refuse a chemical test, and to notify the driver that he is not entitled to consult an attorney prior to making the decision whether to take the chemical test.

The police agency employing the arresting officer must have designated the blood test to be the chemical test to be offered or the arresting officer must have a reason to request the blood test instead of the breath test.  These reasons include, but are not limited to, the breath machine not being available or the driver having a physical issue.  Such physical issues could be the driver receiving a bloody lip due to an auto accident or some other condition that could influence the test results.  If the agency has not designated blood as the primary test and there is no other reason to request a blood test, the Oklahoma Board of Tests mandates breath testing as the primary test to be administered.

If the driver is involved in an accident where death or serious bodily injury results, the police officer can require a forced blood draw.  If the driver is unconscious and unable to give consent to a chemical test, the driver’s consent is considered implied, and the police officer can direct a blood test be given.  Under circumstances in which the driver is unable to give consent, the law does not require an injury or death for the officer to proceed with a blood test.

If a blood test is required or consented to, the officer will use a blood kit provided by the Oklahoma State Bureau of Investigation (OSBI).  This is a standard blood withdrawal kit that is completely self-contained.  The kit is provided to the medical personnel withdrawing the blood samples.  Contained in the kit are three or four vaccutainers (vials) that contain an anticoagulant and a preservative.

The officer will direct approved medical personnel to withdraw the blood samples in the officer’s presence.  The person withdrawing the blood will use the vials to obtain separate blood samples.  After the blood samples are taken, it is required that the vials be inverted at least 4 times so the blood samples will be thoroughly mixed with the preservative and the anticoagulant

The blood samples will be given to the police officer who will seal and repackage the vials into the blood kit.  The officer will seal the package and will take custody of the sealed kit for delivery to the proper laboratory for analysis.  The officer is responsible for preserving the samples until delivered to the state approved forensic lab for testing.  The officer must refrigerate the blood kit if the officer is not able to deliver the blood kit to the lab within 24 hours.  This is important because the blood can ferment if left exposed to heat for too long.  This is especially important in hot Oklahoma summers.

If fermentation occurs, it will cause an increased blood alcohol level in the blood sample.  Similarly, if the blood sample has been contaminated, an increased blood alcohol level can result.  If the anticoagulant and/or preservative in the vial are defective or not properly mixed, an increased blood level can result.  These are just three examples of how the blood alcohol level reported could be rendered incorrect and falsely increased.

A laboratory approved by the Oklahoma Board of Tests must process the blood sample. The only four approved laboratories in Oklahoma are the labs operated by the Tulsa Police Department, the Oklahoma City Police Department, the University of Oklahoma Medical Center, and the Oklahoma State Bureau of Investigation in Oklahoma City.  The lab at the University of Oklahoma is the only Board of Tests approved lab that will process independent samples for defense attorneys.  However, Oklahoma law does allow for other laboratories to be used if they are accredited in Toxicology by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or the American Board of Forensic Toxicology.

If a chemical blood test is completed on the driver, the driver is entitled to have one of the vials of blood sent to an independent laboratory for a separate independent analysis.  The driver isn’t allowed to just show up and pick up the sample from the lab; rather, an independent test must be requested within sixty days of the blood sample being taken.  Upon receipt of the driver’s request, the state lab will send the sample directly to the specified lab.

This independent test allows the opportunity to double-check and confirm the work of the State’s laboratory.  However, if there is an increased blood level due to human error in procedure, the error quite possibly affected all the samples.  For example, if the officer left the blood kit containing the vials of blood in his trunk for three days in July before transporting it to the State’s lab, fermentation could occur in all vials causing falsely increased blood alcohol levels.

Oklahoma law requires that the blood be tested on a gas chromatographer.  These machines are expensive and the test sequence to determine the blood alcohol level is time consuming.  Due to the expense and time of using these machines, hospitals do not use the gas chromatography method to analyze for blood analysis.  The hospital’s concern when taking a blood sample to analyze for alcohol or drugs is to determine if these substances are in the patient’s system.  The hospitals want to know this information before administering any drugs that may react adversely with possible intoxicants already in the patient’s blood.

The hospital’s concern is speed and not necessarily accuracy of alcohol or drug levels.  The analytical methods used by the hospitals routinely render alcohol or drug levels at 20-30% higher than the more accurate score rendered by gas chromatography method.  There is also a much higher possibility of contamination because steps to prevent possible contamination are not used.  With these increased risks of false reporting, it is not surprising that these blood alcohol reports do not meet the basic scientific requirements required to be admissible in court.

A blood test result over the legal limit, even a high result, is not the nail in the coffin.  Skilled attorneys can successfully challenge the test when they understand how gas chromatography works, have visited forensic labs, have researched, and understand the standard operating procedure and legal requirements for withdrawing and analyzing blood samples.  If the challenge is successful, the blood result will not be admitted and the jury will never know a blood sample was withdrawn.  A suppression of the blood test can result from many different challenges, including but not limited to, issues with chain of custody, fermentation, expired equipment, expired certifications, and faulty equipment or maintenance.

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