Fermentation Is a Bonafide Attack on California DUI Blood Tests

Under California law, the identity and the integrity of a blood sample must be maintained through collection to analysis and reporting. [California Code of Regulations, Title 17, Section 1219]

Fermentation is often the focal point of the attack on California DUI blood tests.

Alcohol can be produced on its own in a California DUI blood vial through the process of fermentation. The glucose in the blood combined with microorganisms can cause endogenous production of alcohol.

Fermentation process is common and natural in everyday life. The California DUI lawyer may wish to humanize the process of fermentation. The California DUI attorney/expert can explain that fermentation is what naturally produces alcohol in wine and beer. Products are fermented all the time, all over the world. Fermentation is a familiar everyday occurrence in California.

Advanced California DUI blood alcohol testing procedures like gas chromatography are incapable of determining where the alcohol being analyzed originated. The California DUI device cannot tell if the alcohol originally existed in the subject at the time of the blood draw, or whether it was autogenerated in the blood vial by fermentation. Thus, fermentation is a California DUI attorney attack that is available in almost every California DUI case involving a forensic blood alcohol analysis.

One of the ways to inhibit fermentation of alcohol in the blood sample is to mix the sample with a preservative. In California, the blood shall be mixed with an anticoagulant and a preservative. [California Code of Regulations, Title 17, Section 1219.1]

The most commonly used California DUI preservative is sodium fluoride (NaF). The preservative is usually already in the blood vial before the blood is drawn by the California DUI phlebotomist; the manufacturers put the preservative in the tubes before they sell them to the California DUI crime laboratories.

California state run forensic laboratories almost never analyze California DUI blood samples for the level of preservative in the sample. The reason for this is that it requires an additional analysis, and this means additional work. Most California DUI forensic laboratories lazily rely on the manufacturers to insure that the preservative is in California DUI blood vials. An occasional visual inspection of a blood tube when a new California DUI purchase lot arrives is often the full extent of the quality control. Sodium fluoride is a white salt-like powder. If the California DUI laboratory technician sees it in the vial, the new lot of tubes passes California DUI inspection.

How much preservative should be in the California DUI blood vial?

To save money, some California DUI laboratories use only 20 mg of sodium fluoride in a 10 ml blood tube. With a full 10 ml blood sample this provides only .20% sodium fluoride in the sample. However, the general consensus in the California DUI scientific community is that at least 1% sodium fluoride should be used. [Kaye S., The Collection and Handling of the Blood Alcohol Specimen, 74 American Journal of Clinical Pathology 743, 745 (1980) (sodium fluoride 1% (for example 100 mg/10 ml blood) is the most satisfactory preservative; lesser amounts can allow microorganisms to ferment into ethanol); A.W. Jones, Salting-Out Effect of Sodium Fluoride and its Influence on the Analysis of Ethanol by Headspace Gas Chromatography, 18 Journal of Analytical Toxicology 292 (September 1994) (100 mg is required to properly preserve the sample).]

California requires that a preservative be used, but do not specify the amount of preservative. Since there is not a required amount, the failure to have 1% sodium fluoride in the sample does not require the California DUI test result to be excluded. On the other hand, the failure of the DUI attorney prosecutor to prove the existence of any preservative may mandate exclusion of the test results. [State v. Bosio, 27 P.3d 636 (Wash. App. 2001) (evidence excluded as state failed to prove blood sample had a preservative).]

To determine how much preservative is in the California DUI blood vial, the California DUI defense attorney needs to have an independent California DUI laboratory analyze the sample for the amount of preservative in the California DUI sample. The reason for this is that the California DUI crime laboratories simply do not conduct California DUI preservative analysis. California DUI lawyers confirm this by reviewing the crime laboratory’s report of analysis of the subject California DUI blood sample.

If the results from the independent California DUI laboratory show less than 1% sodium fluoride in the sample, the California DUI defense attorney can attack the test result as being unreliable. Without an adequate amount of preservative there is no assurance that the alcohol in the California DUI sample came from the defendant’s drinking. The alcohol may have fermented in the blood vial after the California DUI sample was obtained.

In headspace gas chromatography the use of sodium fluoride can cause a slightly higher reading in the test results. This is not because of fermentation, but because the preservative drives more of the alcohol in the sample out into the headspace where the sample for analysis is being obtained.

A fermentation defense can still fairly and honestly be presented by a respectable California DUI attorney even if the results from the independent laboratory revealed a proper amount of preservative in the blood sample. This is because fermentation can take place even with a proper amount of sodium fluoride if the sample is not (a) properly mixed or (b) promptly refrigerated. [see e.g. Chang and Kollman, The Effect of Temperature on the Formation of Ethanol by Candida Albicans in Blood, 34 Journal of Forensic Sciences 105 (1989).]

Frequently, California DUI blood samples are not immediately refrigerated after they are obtained. The trunk of a California DUI squad car is not a refrigerator. The failure to immediately refrigerate the California DUI sample is common.

Sometimes a California DUI attorney prosecutor's expert may claim that refrigeration is not important. It is interesting to observe, though, that as soon as the crime laboratory receives the blood sample, they almost always refrigerate it. Pointing out the laboratory’s own procedure should help diffuse any claim that refrigeration is not vital.

Failure to properly care for blood samples is not uncommon. [See, e.g., Rafferty v. State, 799 So.2d 243, 248 (Florida App. 2001) (no refrigeration for eight days).] The Rafferty court described its facts as a “textbook example” of how not to handle a blood sample:
This case is a textbook example of how not to handle blood samples. The nurse took the blood samples from Rafferty between 9:25 p.m. and 11 p.m. on August 5, 1997. FHP [Florida Highway Patrol] Trooper Smyrnios then transported the blood samples to the FHP station. They were stored in a temporary storage facility from 1 a.m. to 1:30 p.m. on August 6, 1997. At 1:30 p.m. on that day, they were placed on storage shelf in the evidence room instead of in the refrigerator. At 2:40 p.m., a FHP trooper picked up the blood samples for delivery to the FDLE [Florida Department of Law Enforcement] in Fort Myers, although the trooper did not remember if the samples were transported in the air-conditioned area of his vehicle or in the trunk. At 3:30 p.m. on August 6, 1997, the FDLE in Fort Myers received the samples, which the FDLE crime laboratory analyst “assumed” had been refrigerated. The following day the FDLE in Fort Myers released the samples to Airborne Express for delivery to the FDLE in Tampa where the blood samples were to be tested. Although the samples were labeled “biohazard,” they were not labeled perishable. The blood did not reach the FDLE in Tampa until August 13, 1997. There was no testimony as to where the blood samples were located for those six days or the conditions under which the blood samples were stored.
It is clear from the expert testimony that the integrity of the blood samples may have been compromised by the failure to ensure the samples were refrigerated for eight days before they were tested. Rafferty at 248.
California DUI lawyers can fairly argue that in many instances, the integrity of the blood sample was not maintained and/or that the blood was not mixed as required by the California Department of Health. In such cases, little or no weight should be afforded the unreliable and/or untrustworthy blood test results.