Recently, a District Attorney in Somerset County, PA discovered that a hospital in charge of testing blood collected in possible DUI cases had been inaccurately reporting the results. The hospital had been testing serum to come up with a Blood Alcohol Content, or BAC, but was reporting the number as if the test had been performed on whole blood. As a result, people may have been wrongly convicted of DUI.
As I've explained before, serum blood tests and whole blood tests are very different. When the lab tests whole blood, they merely put the blood in the machine and report the number without any further calculation.
When the lab tests serum, the lab only tests a portion of the whole blood. The volume of serum is lower than whole blood, therefore the BAC will be higher. The law is only concerned with whole blood BAC, so a “conversion factor” is used to convert the serum BAC to whole blood BAC.
In Somerset County, neither the hospital lab nor the DA applied the conversion factor. So, those people's BAC was reported as higher than it actually was, resulting in possible charges where the person was legally sober or more serious penalties because of the higher BAC. The question I have is, how did no one notice this sooner?
Whenever somebody is charged with DUI, the lab must provide a lab report which shows the BAC result. Every lab sheet I've seen says whether the test was performed on whole blood or serum. It also says what conversion factor was used. It's right there in the evidence, so I have trouble understanding how no one picked up on this. There are only two ways I can see that nobody noticed the lack of conversion factor.
First, the hospital or the DA withheld the fact that the hospital was testing on serum and not whole blood. It appears as if the DA knew the hospital was testing on serum. The hospital should have put the serum test and conversion factor on the lab report sheet, but even if they didn't, the DA had a responsibility to notify the defense that the blood was tested on serum.
The DA also should have refused to pursue any charges where the conversion factor wasn't used. If the hospital and/or the DA didn't bother to disclose what was being tested, or the DA continued to prosecute cases where the BAC was inaccurate knowing about the inaccuracy, there's a bigger issue that needs to be dealt with here, including possible sanctions.
Second, if the hospital did report on the lab sheet that serum was tested and no conversion factor was used, the defense attorneys should be on the hook for failing to challenge the case. Whenever I look at a DUI case, I ALWAYS check the lab sheet. If the information was reported on it, and defense counsel actually looked at that vital piece of evidence, counsel should have immediately seen that there was a problem and attacked the BAC results.
Even if it wasn't reported on the lab sheet, over the course of the several hundred cases involved, didn't anybody subpoena the underlying data? I know when I have a DUI case, I always request the policies and procedures of the lab as part of my review of the accuracy of the BAC. I'd expect that the policy of testing on serum and the conversion factor used (or lack thereof) would be in that information.
I just don't understand how nobody challenged this sooner. It's disappointing as a DUI attorney that no defense attorney ever picked up on it and challenged cases. This has the potential to affect over 750 DUI cases. In all that time, SOMEONE should have noticed.
This just goes to show why DUIs shouldn't be open and shut cases. It also shows why you need an experienced and knowledgeable DUI attorney representing you. If you're charged with DUI, protect yourself. Contact Fliszar Law Office, LLC for a free consultation.