Articles Posted in Blood Tests

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Do Collin County’s Blood Testing Labs Get Paid Per Conviction?

It’s a valid question.  If the answer were “yes,” would it spark outrage?

A new study shows that State Crime labs, are in fact paid per conviction.  In a new paper written in the  Criminal Justice Ethics journal, they found just that.  What they showed is that State Sponsored crime labs get paid through court-assessed fees.

In Collin County, most DWI blood test cases are tested by a DPS crime lab.  Yes, this is the same DPS that issues your drivers licenses, which immediately gives pause to most intelligent citizens as to the accuracy of who is testing your blood.  It is a state agency, not an independent laboratory.

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I’m pleased to report that I have been selected to speak at this years, "Gideon’s Trumpet" seminar in Wichita Falls.  

My topic this year will be DWI Blood Testing: A Simplified Overview of Gas Chromatography.  Or more appropriately titled, "Gas Chromatography for Dummies Lawyers."

Learn to:

– Fight DWI Blood Test
– Pronounce Chromatography
– Impress Your Friends

Here is this year’s agenda, and registration information.

The program is put on by TCDLA.  Hope to see you there!

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Next week I’m headed to Gas Chromatography school held at Axion Chromatography Labs in Chicago, IL.  It is an extremely intensive course with less than 70 graduates thus far across the country.

So why am I spending a fortune on this course and wasting a week in Chicago in a freezing cold lab?

I’m still pondering the answer, but it seems like necessary training in this DWI blood test world.  Gas Chromatography is the technique used to test DWI blood for alcohol concentration.  In the past attorneys focused on the “science” (and I use that term lightly) of breath testing machines and standardized field sobriety tests.  Personally I am already a certified Instructor in Field Sobriety Testing — I can teach the course that certifies the police officers.  But when it comes to blood testing, I have no certification. . .  Yet.

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Dallas County Crime Labby Andrea Grimes  Published 8.24.2011  From D Magazine SEPT 2011


No matter how easy it looks on prime-time television, putting bad guys in jail isn’t as simple as slipping on a dark pair of sunglasses, coming up with a scathing quip, and having an invariably sexy forensic biologist deliver irrefutable evidence that eliminates all reasonable doubt. Forensic science is a lot

messier than that.

It’s so messy that, six years ago, Texas legislators created the Texas Forensic Science Commission. It was tasked with hearing complaints about faulty science, bad policy, and mismanagement in Texas crime labs, with an eye toward improving conviction integrity and ensuring the best possible practices in crime labs across the state.


The Dallas County Crime Lab—more formally called the Southwestern Institute of Forensic Sciences, or SWIFS—has yet to come under the commission’s microscope. But Dr. Chris Nulf says a thorough review is long overdue. He worked at the lab as a forensic analyst in 2008 and 2009 and has been trying to get the commission to investigate Dallas’ crime lab ever since. He is speaking openly for the first time about the problems he saw there during his tenure. Nulf says the lab practices poor quality control, training is sloppy, and management retaliates against employees who raise concerns. If Nulf is right and there are serious problems with the crime lab, every case that relies on physical evidence could be called into question. Imagine if every convicted rapist going back five years suddenly had a good reason to appeal his case. Similarly, sloppy lab work could send innocent people to jail.

“People’s liberties are at stake here,” Nulf says.



The Dallas County Crime Lab is currently accredited by the Texas Department of Public Safety and, as of 2003, by ASCLD/LAB, the multinational accreditation agency that crime labs pay to join. But Nulf says accreditation is only one part of the puzzle and that ASCLD/LAB has taken the lab at its word that its policies are sound. Essentially, the crime lab is doing fine because it says it is.

Nulf earned a Ph.D. in molecular microbiology from UT Southwestern Medical Center in 2004 and was hired on at the crime lab in March 2008. In the 14 months Nulf spent in training as a forensic analyst, he says that using expired chemicals was a matter of practice, that he saw a box fan used to cool a room where microscopic evidence was handled, and that he was trained under managers and supervisors who had different, and loose, interpretations of lab protocol.

“You never knew what to believe when someone told you something,” Nulf says of his training.



In the summer of 2008, Nulf informed his supervisor, Dr. Stacy McDonald, that a stock chemical, sodium perborate tetrahydrate, used in the serology lab—where blood and other bodily fluids are analyzed—had expired in 2005. The crime lab’s procedural manual states that that chemical can be used for a maximum of 90 days after its expiration date. When Nulf’s complaints were forwarded to ASCLD/LAB, the Dallas crime lab had an explanation. Management explained that sodium perborate is merely a component used to make complete “working solutions.” As long as the working solutions made from the expired chemical passed quality control, that was good enough. In other words, the lab admitted that, yes, it was using spoiled meat, but the chili still tasted fine.

Nulf claims that analysts were trained to re-prepare working solutions until they got a quality control that worked. If an expired chemical failed quality control most of the time but analysts could get it to work some of the time, no one would be the wiser. This kind of information wasn’t shared with ASCLD/LAB.



“They trained on preference, rather than protocol,” Nulf says. (Dallas County medical examiner Dr. Jeffrey Barnard, who oversees the crime lab, was unavailable for comment as of press time.)

Nulf anonymously filed grievances with the Texas Forensic Science Commission in the spring of 2009, while still employed at the lab. “I knew they weren’t following protocol,” he says. “I knew they weren’t being scientific.”

Beyond the expired chemicals and the box fan—in their report to ASCLD/LAB, the crime lab said that the fan was used only temporarily and that it faced away from areas where evidence was handled—Nulf also says that, in the year he worked for the crime lab, he was never asked to submit his own DNA for an employee database used to investigate potential contaminations. An employee DNA database is standard procedure for all crime labs.

Nulf was fired in May 2009, in part because he insisted on making a notation in the lab’s logbook that he had used an expired chemical. He was told that the notation was made “without direction from a supervisor and without sufficient documentation.” He publicly attached his name to his previous complaints in a wrongful termination suit filed against Dallas County in October of that year. Local media jumped on the suit, as it contained powerful statements that accused the crime lab of a “total lack of professionalism” and that “the same evidence used to convict murderers and rapists may be used to put them back on the street.” Nulf’s suit couldn’t go to trial because of a procedural technicality. He had failed to file his complaint with the county within seven days of his termination, as per policy. He and his lawyers filed a nonsuit, ending the litigation.

With no recourse in court, Nulf has waited two years to hear the state commission’s response to his complaints. He has amassed a pile of documents via open-records requests to shore up his case. One of those documents is a “corrective action report,” an internal memo created when problems are found in the lab. A report labeled CAR-07-007 details that “areas of the Trace Evidence Lab and office were contaminated with blood,” on or about July 16, 2007, per Dr. Timothy Sliter, the lab’s evidence section chief. The report itself, though, contains the signature of a crime lab employee, Karen Young, who didn’t work for the lab in 2007. Nulf also noticed that the template used for the report looked different than others used in that year. The report lists a resolution date of November 25, 2008. It was not, then, created contemporaneously with the contamination discovery, but 16 months later.

Nulf believes Sliter withheld information about a widespread contamination for 16 months. He says that’s the kind of information defense attorneys would have found very useful. With the prosecution, say, pointing to blood from the crime scene found on the accused’s shirt, the defense could raise the question of whether the blood might have been transferred to his client’s shirt as it was being analyzed in a contaminated lab.

When D Magazine contacted the Texas Forensic Science Commission to inquire about the status of Nu
lf’s complaint—the commission’s website still says a decision has been “abated” pending Nulf’s civil litigation, which was terminated in July 2010—a commission rep said Nulf’s complaint had been dismissed back in August 2010.

The dismissal didn’t come as a surprise to Nulf, because he’s never been notified by the commission about his case’s status. Representatives for the commission claim they did notify Nulf and that the case was dismissed on the grounds that he did not tie his complaints to a particular criminal case, as is required by the commission’s protocol. That protocol, however, wasn’t adopted until January 2010—months after Nulf had filed his original complaint.


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Well, it looks like Dallas doesn’t like the breathalyzer either.  An article in the DMN today explains that the Dallas PD 

wants to start forcefully taking blood from DWI 

suspects.  I still haven’t understood why the legislature enacts a law like the one listed below, then skirts the issue:

Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

Lawrence Taylor in California refers to this as the "DWI exception" to the constitution.

Dallas police seek blood tests for all DWI suspects

06:34 AM CDT on Monday, March 15, 2010

By TANYA EISERER / The Dallas Morning News

police want to join a growing national trend by making all suspected drunken drivers take a blood test, but the price tag for such a program may be too high for now.

Under a proposed policy, the Breathalyzer would become a thing of the past. And police would seek a search warrant to get blood from any suspected DWI driver who refused to take the blood test.

But preliminary figures – which indicate the program would cost the city of Dallas at least an additional $360,000 a year – may mean it stays on the back burner during the tough economic climate.

Some officials do believe the costs of such a program could be partially offset by other savings.

Police are talking with Parkland hospital officials and the Southwestern Institute of Forensic Sciences about the costs of expanding that program to everyone who is arrested on suspicion of DWI. Parkland’s staff would draw blood at the jail for every DWI suspect, and the institute’s lab would test the samples.

In Dallas, police arrest about 3,600 DWI suspects each year. Of those, about a third already undergo blood testing at the Dallas County Jail.

Blood tests have several advantages. Breath testing can’t detect the presence of drugs in a person’s blood stream, but blood tests can. Studies also have shown that blood testing DWI defendants offers prosecutors an almost bullet-proof case. A 2008 federal study found that it results in more defendants pleading guilty, fewer cases going to trial and increased conviction rates.

"There’s no question that the blood test is more accepted in the courtroom by a jury than the breath test," said David Burrows, a co-chair of the DWI committee for the Texas Criminal Defense Lawyers Association. "I don’t think too many people question the accuracy of blood testing."

That would probably lead to more plea deals, perhaps sharply reducing costly overtime paid to officers called in to testify when cases go to trial.

"We all know that defense attorneys can place doubt in the minds of the jury as to the reliability of the intoxilyzer instrument, but it is much more difficult to place that same doubt for a blood test," said Dallas Police Sgt. Kenneth Campbell, a jail supervisor who has been working on the proposal.

Phoenix and other cities already require blood tests for all drunken driving cases. Dalworthington Gardens was the first Texas city to go to an all-blood test, in the summer of 2005.

Dallas already has periodic "no refusal" weekends, such as this past weekend, where officers kept a close eye on the revelry for the St. Patrick’s Day parade on Greenville Avenue. Suspected DWI drivers were offered either breath or blood tests. If they refused, police obtained a warrant for their blood.

The year-round program in Dalworthington Gardens is nicknamed "Can’t take no for an answer." Under the original program, DWI suspects were tested by police trained to draw blood. If they refuse the testing, "we go out and get an evidentiary search warrant," Chief Bill Waybourn said.

He said most of the more than 300 people arrested through the program have taken plea deals.

In 2008, a Tarrant County judge discarded blood evidence in the case of a Bedford resident arrested in Dalworthington Gardens after raising concerns about the department’s program. Since then, medical personnel have been drawing the suspects’ blood while the city awaits a ruling by the state’s highest criminal court. If the court sides with Waybourn, he said he will again have his officers draw blood.

The Houston Police Department recently began training eight members of its DWI unit to become certified blood technicians.

Assistant Police Chief Vicki King said the department is working with Harris County prosecutors to get grant funding to implement a no-refusal policy four days a week. That would mean that if someone refuses to take a breath test, officers would obtain a search warrant for a blood test.

"Blood is the better evidence," King said. "It will tell us exactly what’s in the bloodstream."

Arizona has implemented an intensive program to train officers as blood technicians, and the program is becoming the national standard.

Many of the state’s larger police agencies, including Phoenix, Mesa, Scottsdale, Tucson and the state highway patrol, have gone to an all-blood DWI testing program, said Phoenix Detective Kemp Layden, who supervises his department’s program.

In Phoenix, any person arrested on suspicion of DWI is asked to voluntarily take a blood test. If the person refuses, officers obtain a warrant.

"It’s extremely successful," Layden said. "We have reduced the number of refusals. Most people don’t refuse the test now. We have reduced the number of unsuccessful prosecutions. The conviction rate is way up."

But in Dallas, the department has decided against having their officers draw blood, which is why negotiations are ongoing with Parkland.

"That’s just way to open to too many legal challenges," said Lt. David Bonicard, who oversees Dallas police jail supervisors. "We don’t want to be in a position where charges are thrown out."


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Today’s lecture on Cross of the Chain of Custody Witness was presented by Houston DWI Lawyer Tyler Flood.

A very good showing.  It was in the Q & A style of a cross examination, so a bit hard to put into a blog the exact questions.  But here are some of the points brought up, that should be explored with the witness:

  • Get the SOP of the police department.  You can find (sometimes) their procedures of how things should be done.  Tyler did this with Houston PD.  It seems like he then tailored his questions to the witness to explore if they were done.  I presume after his cross, he would cross an officer on the correct procedures to bust up the chain of custody
  • Tyler went through exactly step by step where the sample was, who it was handed to and where it was stored
  • Was it refrigerated?  If it was, what about when you pull it out to put it in a cooler?  How long out?  What about when you brought it to the police station?
  • What about other sample’s proximity to your client’s sample?  Do they stuff everyone’s in an envelope, cooler, or lockbox?  Who else’s samples were in there? 
  • Examine all the numbers on who is signing in and out items?  What if they were mailed?  See if a bunch of them were all sent in the same envelope?
  • Is special handling checked off??
  • What about biological hazard stickers?
  • (From the last lecture, does this mean the sample is being inverted more than it should have been?)

Great job overall on this part of the lecture.


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Today presenting on how to cross examine the Blood Drawer (Nurse, qualified technician, etc) was attorney Kelly Case.

A really great job.  So good, I don’t really want to give up the strategy or specific questions on my blog.  If any attorneys are interested in my notes or thoughts, I’ll send them along.  Just shoot me an email and I’ll send it along.

In general, with the Blood Drawer, you can question if intereferrants are present, if there are problems with the blood draw, about the blood draw kit, about the place it was taken, and about the qualifications of the blood drawer.  Really good stuff.

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The pre-trial discover portion of this seminar is being taught by Houston DWI lawyer Troy McKinney.  Troy is responsible for putting on many DWI seminars, and speaks at most of them.  Not to be confused with Collin and Dallas DWI Attorney Troy Burleson (my law partner).

First off, you cannot defend a blood test case without Documents.  You need to know what they have.  You need it to prepare, educate the judge, and confuse the prosecutor. 

PS – as a totally random side note, the Houston’s Crowne Plaza’s cups suck.  They leak.  I got 2 coffees, and both of the cups I used leak out of the bottom.  Also, this is the first time I didn’t pay to get the book along with the CD.  I think that was a good decision.  Especially when you can bring in and plug in a laptop and pull it up.

Very often, you are going to need an expert.  Even if not at trial, you’ll need them to review the documents you get.

There is a lot of legwork that can be done on looking into Accreditation of the laboratory. This comes into play at not only looking at the  lab that did the testing, but any lab that you might have used to retest the sample. 

His lecture was pretty complex.  I certainly cannot relate all of it here.  The problem I have at a lot of these seminars (especially the scientifically based DWI seminars, is that without an expert, none of this stuff will ever come into evidence.  It is definitely impossible to cross examine a cop on this stuff, and pretty tough to cross the state’s lab expert on it as well.  You will need an expert of your own to come in and explain a lot of it.  Remember, attorney’s cant testify (technically), only witnesses.

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One of today’s speakers, Mark Daniel, a Ft. Worth Criminal Defense Attorney, has been getting a lot of recognition for his recent work on Tarrant County District Judge Elizabeth Berry’s case.  Much of the good press was about he finally getting her case dismissed.  Not easy in a case where a blood test was taken. 

He first attacked the search warrant in the case, and got the blood test results kept out of court.  After some appeals by the state, he then won the appeal.  The State’s response after that was to dismiss the case. 

Mark’s talk is about fighting search warrants in DWI cases. . .

Some of what Mark pointed out, is that this is still a new area of law.  His feel is that it is here to stay, and the only way to fight back is to do just that — fight back.  Especially in these borderline cases.  Try and litigate these cases!

First off, there are still plenty of mistakes being made.  The officers are the ones that are asking for the warrants, and are not perfect about articulating probable cause.  

Nurses and Doctors aren’t on the State payroll.  The hospitals might not like their nurses and doctors sitting around waiting to testify all day long.  And they wont be at court unless we are litigating these cases.

Cops must be saying facts that support the PC.  Just checking off boxes wont necessarily be enough. 

Who can sign warrants – After Sept 1st, there will be a lot of other people that will be allowed to sign these warrants.  This includes any local magistrate that is a licensed attorney.  This would also include courts that are not courts of record.

Additionally (and I’ll post more on this later), there are going to be plenty more blood draws coming WITHOUT a warrant.  Some of this may be outside the 4th amendment, if properly fought.  This isn’t going to happen here at the local level, but maybe if appealed higher.  Some of the new times the police can take blood without a warrant is where, a) a DWI felony, b) a DWI with a child passenger in the car, and c)a DWI where there is bodily injury and someone goes to the hospital.

According to Mark, "c) a DWI where there is bodily injury and someone goes to the hospital" is an area where the TCDLA fought hard with the legislature.  Apparently it was originally worded just "bodily injury".  That could be pretty much anything — broken fingernails, etc.

 With PC, you need facts, not just conclusions.  Looked intoxicated, failed the test, etc isn’t enough.  Also, we need to know about training and experience of the affiant as well.

You can request a Frank’s hearing.  This is when there are false statements in a warrant.

Faxed warrants can be fought as well.  In the Govt code, it says an affidavit has to be before an officer.  In fact, at one point, a court said that we need to let the legislature ask for allowing fax warrants. 

Overall, this was an awesome speaker.  Probably about the best speaker I have heard in the past few years — and I hit a lot of these seminars.  Also gave out great materials of his briefs and case law that he has looked up and used. in the past. 

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Well, today I am attending the Texas Criminal Defense Lawyers Association‘s Top Gun DWI – A Blood Test trial from Start to Finish.  

In the past I did some live blogging from another DWI Seminar Here, here, and here.  I got a pretty good response from it, so I’m going to give it another shot.

Although the premise of this seminar is an actual trial style : i.e. cross examination of officers, toxicologist, etc, there will also be some normal seminar speaking as well.