Michigan’s Use of Expired Blood Draw Kits in DUI Cases Should Be Discouraged

by admin on April 28, 2009

in Breath and Blood Testing, Defending Drinking Drivers, Drunk Driving Attorney's Page

In Michigan, if you are arrested for drunk driving and refuse the “evidentiary” breath test, that is the test that you are requested to take at the police station or jail AFTER you’ve been arrested, then a warrant will almost certainly be obtained to draw your blood.  In most instances you will be taken to a hospital for the blood draw.

At the hospital the arresting officer will supply to the person drawing your blood a small white box containing most of what is necessary to complete the blood draw.   These boxes are called “blood draw kits” and are used specifically to draw blood in the context of a drunk driving case.

These blood draw kits all contain the same things, in other words, they are standardized meaning that all agencies across the State of Michigan use the exact same blood draw kits.  These kits are supplied to each state and local law enforcement agency by the State Police.  The State Police orders them from a company called Tri-Tech Inc. 

The blood draw kits used here in Michigan were specially designed for use in drunk driving investigations according to the specifications supplied by the State Police forensic lab.  Inside the blood draw kit are two grey stopper vials into which your blood will be drawn.  The blood vials are supplied by a different company by the name of BDvacutainer.

After the blood draw is completed, the blood draw kit containing two vials of your blood will be sent to the forensic laboratory in Lansing Michigan.  This is the only place the blood collected for a drunk driving investigation will be tested.  After about 7-10 days your blood will be tested for alcohol content, and the results sent back to the arresting agency.  From there your attorney will eventually obtain a copy of the laboratory report.

The blood vials inside these Tri-Tech kits contain two chemicals or salts.  These salts are a preservative and an anticoagulant.  It is not completely unusual for the law enforcement agency to use a kit that is expired.  Expiration dates are not noted anywhere on the laboratory documents.  The only way to know this is for your attorney to cross-examine the people involved in handling the blood, and hope that they are honest, or to inspect the vials themselves.

If the kits were expired, and your attorney finds out, then the people at the forensic laboratory will testify that it doesn’t matter because salts are inert, meaning nothing happens to them over time.  Time does not cause the salts to degrade.  But is this true?

The literature from the manufacturer, BDvacutainer, suggests otherwise.  It indicates as follows:


Store tubes at 4-25 deg C (39-77 F), unless otherwise noted on the page label.  All liquid preservatives and anticoagulants are clear and colorless, except CTAD which is yellow. Do not use if they are discolored or contain precipitates.  Powered and freeze-dried additives such as heparin and thrombin are white; fluoride and fluoride/oxalate may be pale pink.  Do not use if color has changed.  Do not use tubes after their expiration date.

 So, who’s correct and who’s not?  Most judges and prosecutors would leave that question up the jury.  But, when a person’s liberty is being decided, is this appropriate?  Should we as a society give such leeway to the forensic labs?  And, should the laboratory personnel offering this testimony have an obligation to answer questions more forthrightly?

The following state is contained in a February 18, 2009 press release issued by The National Academies.  The title of the press release is:


Court Testimony Should Be Grounded in Science, Acknowledge Uncertainties

The committee was not asked to determine whether analysis from particular forensic science methods should be admissible in court, and did not do so. However, it concluded that the courts cannot cure the ills of the forensic science community. “The partisan adversarial system used in the courts to determine the admissibility of forensic science evidence is often inadequate to the task,” said Edwards. “And because the judicial system embodies a case-by-case adjudicatory approach, the courts are not well-suited to address the systemic problems in many of the forensic science disciplines.”

The committee also concluded that two criteria should guide the law’s admission of and reliance upon forensic evidence in criminal trials: the extent to which the forensic science discipline is founded on a reliable scientific methodology that lets it accurately analyze evidence and report findings; and the extent to which the discipline relies on human interpretation that could be tainted by error, bias, or the absence of sound procedures and performance standards.

The report points out the critical need to standardize and clarify the terms used by forensic science experts who testify in court about the results of investigations. The words commonly used — such as “match,” “consistent with,” and “cannot be excluded as the source of” — are not well-defined or used consistently, despite the great impact they have on how juries and judges perceive evidence.

Regarding blood test evidence used in support of drunk driving charges in Michigan, the question that remains is whether or not there should be more scrutiny and independent verification to prevent abuses similar to what occurred in the State of Washington.  It is our opinion that the answer is most assuredly “yes.”  This is in part due to the fact that laboratories across the country are under siege due to bad science, but also due in part to the information discussed above as well as elsewhere in this web site.

If you think you are the victim of bad science in a drunk driving case then you should first discuss these issues with your lawyer.  If your lawyer seems to dismiss your concerns or not even understand the issues, then you may want to consider finding a lawyer that specializes in drunk driving defense.

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