Blood Test Defenses

11.2 Blood Tests

Overview: Obviously, blood is the most accurate way to obtain a BAC. However, there are many things that can go wrong, and various inaccuracies are often present. Typically, I break the errors down into three categories. Error’s by the officer, phlebotomist, and analyst/crime lab.



11.2.1 The Officer’s Role

The officer’s role typically will begin by reading the driver the ALS form dealing with informed consent. Usually, blood is drawn at the hospital. And usually, it is taken because the person was injured, otherwise has to go to the hospital, or the local police department’s Intoxilyzer is broken or no certified operator is available. Although blood is more accurate, it costs the police more to obtain, so they typically will not do it unless they have to.

An exception to the informed consent statute dealing with refusals is if the driver was involved in an accident and caused serious bodily injury, or death. In this instance, there is a no right to refuse, and the officer can do a forced blood draw[1].

At the hospital, the officer will typically use a “blood kit”, which he usually has in his police vehicle. Part of the kit should include grey top tubes (grey topped tubes have anti-coagulants & preservatives in them; sodium fluoride and/or potassium oxalate), and a swab typically of povidone iodine (so that an alcohol swab or other swab is not used).

The officer then gives the kit to the phlebotomist, and is eventually given it back after the blood is drawn. Either the officer, or the phlebotomist, should label the tubes. The officer’s job is then to transport the blood to the State crime lab. Sometimes, the officer will bring it to the police station and leave it there for a few days or more. Even worse, often times it is not put in a refrigerator.

Practice Note: Look at the chain of custody form to see what the officer did with the blood, and where he stored it.


11.2.2 The Phlebotomist

The phlebotomist is the person who actually drew the blood. By statute, “Only a duly licensed physician, registered nurse, certified physician's assistant, or qualified medical technician or medical technologist acting at the request of a law enforcement officer, authorized agent, or peace officer may withdraw blood for the purpose of a test required by RSA 265-A:4.[2]” Sometimes the phlebotomist will read a form to the person explaining that it is a blood draw for legal purposes (as opposed to being for medical purposes).

The phlebotomist must use a swab/cleanser that will not interfere with the BAC analysis[3]. Some examples of things that probably shouldn’t be used are alcohol, soap, and possibly water.

The phlebotomist should use a grey topped tube as it contains an anti-coagulant & preservative[4].

See Chart to determine the different types of tubes used by BD.[5].







The phlebotomist should invert the tube 6-7 times so that the anti-coagulant/preservatives mix with the blood.  If you can, try to obtain through discovery any other directions/instructions the phlebotomist should have given. They are sometimes included in the blood kit. You will also want to try and determine the expiration date of the tubes that were used.

Practice Note: Make sure in your demand for a certifying scientist you also demand the presence of the phlebotomist.


11.2.3 Chain of Custody

Chain of custody issues usually go to the weight of the evidence, unless the chain of custody has incredible gaps in it, in which case it could go to foundation and admissibility

Although the prosecution has the obligation "to establish the chain of custody. . . this does not mean that everyone who laid hands on the evidence must be called." "[G]aps in the chain of custody normally go to the weight of the evidence rather than its admissibility."[6].


11.2.4 Headspace Gas Chromatography – How the Blood was Analyzed

There are two types of Gas Chromatography (GC); direction injection and headspace GC. Direct injection inserts part of the blood into the inlet of the gas chromatograph. Headspace GC measures the vapor above the blood sample (Again based upon Henry’s law).  The New Hampshire Crime Lab uses headspace GC.

The GC separates the components of a mixture. Accordingly, it is a separation science.

The following is a very simple overview of how the process works. You may want to consult with an expert witness. Alternatively, the State’s witness, the analyst, will usually be more than happy to explain everything the machine does in order to show how accurate it is. However, you may then be able to show how complicated it is, and show all the potential places an error can occur.

In the simplest comparison, the GC is a fancy oven with a tube, thermometer, clock, and flame.

The GC processes numerous samples in what are called batches, or “runs.” At the beginning of the run, the machine is given a couple samples of a known quantity of alcohol. Other samples in a run include blood from your client, other driver’s blood samples, blanks, and known samples at the end of the run.  See the requirements set forth in Saf-C 6402.09.

During every run, the computer will re-learn what a sample looks like based upon the known concentrations.  By comparing the retention time against the known standard, the machine can determine what compound it is (ie ethanol) (qualitative analysis).  By using the BAC of the known sample, the GC calculates the amount of the substance that is present(quantitative analysis).

Practice Note: Typically, you must specifically request the chromatograms from the State/crime lab ahead of time through discovery.See Appendix F.


11.2.5 The Lab Analyst/ Certifying Analyst

The Lab analyst is the person who ultimately analyzes the blood. Briefly, that process is to take the blood from the refrigerator, let it get to room temperature, set up the run, perform the run, look at the chromatograms, and determine the BAC based upon Saf-C guidelines.

You are entitled to have present at trial the actual person who analyzed the blood, not a certifying scientist, or other person who looked over the paperwork[11].

The part where the GC performs the run is mainly automated.

Practice Note: In State v. Dilboy, 999 A. 2d 1092(2010), decided April 20, 2010, as modified on Denial of Reconsideration on June 3,2010, The New Hampshire Supreme Court held that a certifying analyst can testify as to the results of the chemical test. The Court found the testimony of the analyst who performed the tests was not required under the confrontation clause of the federal constitution.

However, the United States Supreme Court, rejected that position[12]. The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Pp. 8–16.

Dilboywas specifically vacated/remanded by the U.S. Supreme Court, and the actual analyst must be present.


11.2.6 Issues Related to Hospital Blood Draws (as opposed to legal blood draws)

There are two main issues when the police obtain the blood through the hospital. Did the officer lawfully obtain the sample, and was the blood sample whole blood? Lawfully Obtained Sample?

The common scenario is where a Defendant is involved in an accident, charged with DWI, and transported to the Hospital. He either refuses to provide blood to the officer, or the officer does not ask. As part of medical treatment, the hospital obtains blood. The Police then typically try to obtain the blood pursuant to RSA 329:26, or via a warrant.

RSA 329:26 holds: Confidential Communication - “This section shall also not apply to the release of blood or urine samples and the results of laboratory tests for drugs or blood alcohol content taken from a person for purposes of diagnosis and treatment in connection with the incident giving rise to the investigation for driving a motor vehicle while such person was under the influence of intoxicating liquors or controlled drugs. The use and disclosure of such information shall be limited to the official criminal proceedings.”

Accordingly, by legislative statute, the Dr./patient privilege does not apply in that limited circumstance.

In addressing the constitutionality of the statute, the Court has held “It is well settled that the government's withdrawal of blood from a person's body without a warrant or consent is a search and seizure under Part I, Article 19 of the New Hampshire Constitution[13].  However, when the blood is drawn for medical purposes, Part I Article 19 is not implicated[14]. Further, there is no expectation of privacy, and a warrant is not required[15]. “Society does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient, where those results are requested by law enforcement for law enforcement purposes in connection with an incident giving rise to an investigation for driving while under the influence of intoxicating liquors or controlled drugs.[16]

“[w]hile state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights...." Thus, it is clear that the Supreme Court found a violation of the Fourth Amendment because the testing was done for, and in conjunction with, law enforcement. Because there was no law enforcement involvement in the taking or testing of the defendant's blood sample in this case, Ferguson does not apply[17].”

However, in dealing with other medical records besides blood and urine samples related to DWI see In re Search Warrant for Medical Records of C.T. 999 A 2d 210 (2010), the Court found “The physician-patient privilege statute includes no exception for access to or use of medical records in connection with criminal prosecutions for driving while intoxicated[18].”

“Henceforth, any search warrant for privileged medical records shall order the hospital or medical provider to comply within a reasonable time by producing the records under seal for in camera review by the trial court. The trial court shall then determine the manner by which the patient shall be provided notice that such records were produced and shall give the patient and hospital or medical provider an opportunity to object to their disclosure. Upon objection, the State must demonstrate "essential need" for the information contained in the record, i.e., the State must prove both that the information is unavailable from another source and that there is a compelling justification for its disclosure.[19] HIPAA

The Defendant may have additional rights under the Health Insurance Portability and Accountability Act (HIPAA)[20].  Generally, under HIPAA, patient records are protected and private unless a certain exception applies. HIPAA is a Federal Statute, and any State statute to the contrary is preempted[21].

HIPAA Exceptions:

The information is required by law, including laws that require the reporting of certain types of wounds or other physical injuries;

It is required by a court order, court-ordered warrant, or court-ordered subpoena,

It is ordered by a grand jury subpoena; or

It is ordered by an administrative subpoena or other civil process authorized by law, provided the information is relevant and material, the request is specific and limited, and de-identified information could not reasonably be used[22].

The New Hampshire Supreme Court has not addressed a HIPPA exception to RSA 329:26[23]. However, even if HIPAA is applicable, there is still the question as to whether the exclusionary rule applies. The argument against the exclusionary rule is HIPAA does not have a private course of action, and HIPAA deals with the Hospital, not State actors. However, if the blood is obtained at the request of the police, this might count as a State actor. Whole Blood vs. Serum/Plasma

To determine an accurate BAC, Whole Blood must be analyzed. “It is whole blood that travels through the body to the brain, where alcohol concentration in the blood and the brain are in equilibrium[24].” Besides whole blood, plasma and serum are sometimes analyzed. Typically this is done when the hospital is the one analyzing the blood. Because whole blood, plasma, and serum, each have different water contents, the BAC measurement will vary depending on which one is analyzed.

To obtain a whole blood BAC from plasma or serum, a formula is used to convert. This formula is based upon an average of different individuals based upon studies. The range is 1.03 to 1.26[25].

Practice Tip: A BAC of serum or plasma is always higher than a converted BAC of whole blood.


11.2.7 Blood Defenses

Most of these defenses are set forth in more detail throughout this book.

Chain of custody – How did the blood get from the person’s arm to the crime lab? Once at the crime lab who accessed the blood?

Swab – Was povidone – iodine, or some other substance used that would not interfere with the results? i.e. not alcohol or soap which contains alcohol?

Refrigeration & Transportation– Did the officer refrigerate the blood? How long did it take to get into the refrigerator? How long was it sitting there before transported to the crime lab?

Fermentation – Alcohol can actually ferment/ be produced in a blood sample after the blood is drawn. Fermentation is what naturally causes alcohol in wine and beer. In blood samples, fermentation most often occurs when the sample is not properly refrigerated or given preservatives. Even with the proper preservative, the alcohol can be created if the sample is not promptly refrigerated[26].  Candida albicans, a fungus/yeast that is commonly found in the human body can be resistant to the preservatives[27].

Anti-coagulant/Preservative – Was an anti-coagulant & preservative in the blood tube that the phlebotomist used? Did the crime lab check for an anti-coagulant or preservative? (I have never had them answer yes to this question. Just be careful as they will likely say there was a gray top tube and that is an industry standard to designate both. You can actually tell what color top tube there was, besides by obtaining an independent sample. On the daily work sheet showing the BAC results from the crime lab, samples with something other than gray top, such as lavender top, are noted).

Problems with the GC – How can the lab ensure the temperature was constant? Did the blank come back zero? Did all the verified samples come back within the required tolerance?  Were the samples not expired? The machine isn’t specific to ethanol, so was something else possibly detected? Did alcohol build up in the machine from previous samples?

HematocritSee Chapter11.1.3.6

Chromatograms – Get the chromatograms. Were there irregularities? What other substances besides ethanol are on there?

Rounding – Look at the two blood sample results. Were they rounded up?

[1] N.H. RSA 265-A:4

[2] N.H. RSA 265-A:5

[3]Saf-C 6402.02(b)

[4]Saf-C 6402.03(a)(2)


[6]State v. Dilboy, 999 A. 2d 1092, 1103 (2010) citing Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 - Supreme Court (2009)

[7]Bartell at, 16-5

[8]Garriot’s at 412

[9]Garriot’s at 413

[10]Garriot’s at413

[11]Bullcomingv.New Mexico, 564 U.S. ___ (2011).Further, State v. Dilboydecided April 20, 2011, was specifically vacated/remanded by the U.S. Supreme Court; 10-6278 DILBOY,  Dilboy ANTHONY V. NEW HAMPSHIRE The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of New Hampshire for further consideration in light of Bullcoming v. New Mexico, 564 U.S. ___ (2011).

[12]Bullcomingv.New Mexico, 564 U.S. ___ (2011).

[13] State v. Steimel, 155 N.H. 141, 147 (2007)

[14]State v. Davis, 12 A. 3d. 1271, 1274 (2010)

[15]Id. at 1277

[16]Id. at 1266

[17]State v. Davis, 12 A.3d 1271 (2010) (original citations omitted)

[18]In re Search Warrant for Medical Records of C.T. 999 A 2d 210, 216 (2010)

[19]Id. at 220

[20]45 C.F.R pts. 160 and 164

[21] 45 C.F.R. Sec. 160.203

[22] 45 C.F.R. 164.512(f)

[23]Davis at 1277.

[24]Bartell at 13-3

[25]Bartell at 13-4

[26]Change and Kollman, "The Effect of Temperature on the Formation of Ethanol by Candida albicans", 34(1) Journal of Forensic Sciences 105 (1989). See, also, Blume and Lakatua, "The Effect of Microbial Contamination of the Blood Sample on the Determination of Ethanol Levels in Serum", 60 American Journal of Clinical Pathology 700.