Attorneys are questioning drug labs DUI findings.

Each year, there are between 25,000 and 30,000 arrests for driving under the influence in this state, according to the Colorado Bureau of Investigation. The vast majority of these cases never make it to trial. Instead, the defendant takes whatever deal the prosecutor offers.

The reason, of course, is that their drunkenness has already been quantified.

In Colorado, the lowest blood-alcohol content that is prosecutable for adults is .05 — driving while ability impaired, or DWAI. A .08 is a DUI, which carries with it a penalty of nine months' suspended license. A .17 could mean the installation of a breathalyzer on your ignition for two years. A .2 is a mandatory jail sentence.

By a matter of .001, blood tests determine degrees of guilt, or innocence. Produced by a governmental toxicology lab, they're usually the key piece of evidence in a DUI case, and hold immense credibility for prosecutors, judges and juries — and, thus, the people charged.

"They might as well come from the mountain," says Oklahoma-based attorney Josh Lee, a nationally recognized expert on forensic science. "Because if a lab person said it, it must be gospel."

But very little, Lee says, should be taken for granted in forensic science.

In 2009, the National Academy of Sciences called for serious reform to the field, stating that "Forensic science facilities exhibit wide variability in capacity, oversight, staffing, certification, and accreditation across federal and state jurisdictions. Too often they have inadequate educational programs, and they typically lack mandatory and enforceable standards, founded on rigorous research and testing, certification requirements, and accreditation programs."

Since the issuance of that report, legislation has been proposed at the federal level to implement and standardize scientific best practices. It's gone nowhere.

Meanwhile, the list of city or county labs that have experienced problems has only grown. As Matt Clarke wrote in "Crime Labs in Crisis," published in Oct. 2010 by Prison Legal News magazine, metropolitan areas that have seen scandals yield "full or partial closures, reorganizations, investigations or firings" include Baltimore, Chicago and Detroit. Also on the list is Colorado Springs, since El Paso County's Metro Crime Lab's blood alcohol testing section was shut down after 200 tests used in drunk driving cases were discovered to be flawed in 2010.

Since the Metro lab stopped analyzing blood alcohol, local samples have been tested by the Colorado Department of Public Health and Environment toxicology lab in Denver. Of course, state labs don't always fare much better than city labs. Right now, a scandal in Massachusetts is threatening to undo thousands of already-decided cases. And Clarke's 2010 report names about a dozen embattled state-level operations.

On April 19 of this year, the supervisor of the state laboratory, Cynthia Burbach, swore in an affidavit that her department was in the process of retesting roughly 1,700 samples handled by technician Mitchell Fox-Rivera.

In March, Burbach found that a discrepancy called into question one of the blood tests run by Fox-Rivera. According to the district attorney involved in the case, the state said the blood sample came in at .181; but when an independent lab ran its own test, it came in at .246.

Five days later, Fox-Rivera, a recent college grad with less than six months on the job, was canned.
In her affidavit, Burbach stated the bad results were due to Fox-Rivera's inability to "properly operate a standard piece of equipment," and his failure to follow the lab's standard operating procedure for gas chromatography testing (see "The vapor trail," below). She stated that additional procedures had since been instituted to prevent such mistakes in the future.

The "one bad apple" argument should sound familiar in Colorado Springs: As the Indy reported in May 2010, the internal investigation that led the Metro Crime Lab to surrender its own certification "found 167 flawed tests in 2009 and 39 more in 2007, all of them tied to a single chemist who no longer works there."

But during the state scandal, defense attorneys were troubled by more than Fox-Rivera's problems.
In her April 19 affidavit, Burbach swore that re-tests of Fox-Rivera's blood samples yielded none with a lower blood-alcohol content than first (and wrongly) reported. She'd repeat the claim in another sworn affidavit the following day.

However, Burbach actually had signed off on at least two blood-alcohol results that did come in lower than Fox-Rivera's initial findings. In one, the inaccurate .146 was revised to the lower .134. In May, the Denver Post reported that Burbach had signed off on an even earlier re-test that revised a defendant's blood alcohol content from .218, which carries a mandatory jail sentence, to .199, which does not.

Given that, Burbach's sworn statement would seem indefensible. But CDPHE told the Post that since these results fall within 10 percent of one another, they are effectively the same.

In an e-mail to the Post, Mark Salley, CDPHE's communications director, wrote: "The standard operating procedure for the state lab allows for a 10 percent variation between results when the same sample is run multiple times ... Significant variation, in this case is any variation outside of 20 percent."

The idea that the state lab could accept a difference of up to a 20 percent variance in blood-alcohol test results was news to a lot of defense attorneys. Nowhere on the litigation packet they receive in a case, they claim, does it state that their client's alleged BAC comes via testing that allows for wiggle room of up to 20 percent.

Further, they ask, where does CDPHE get this number?

Vince Todd, a former attorney who now works as a legal consultant out of his Lakewood office, submitted a Colorado Open Records Act request seeking "Any professional standards that justify stating, without qualification, that an 'actual' test value was not lower that [sic] a comparative value if the result were within 20%."

The state responded by pointing to a guideline from the Society of Forensic Toxicologists that states that "A maximum deviation of ±20% of the mean is recommended." But that guideline is for all kinds of toxicology tests, from testing for the tranquilizer clonazepam to LSD.

As explained by Dr. Robert Lantz, with Fort Collins' Rocky Mountain Instrumental Laboratories, testing for LSD occurs at levels of a trillionth of a gram.

"So we are talking about extremely low levels," Lantz says. "Twenty percent is reasonable if you are looking at a drug level down at the low-end of what you can detect. But it's not reasonable for alcohol, because the alcohol levels are huge. And it is an easy assay. So it's really not reasonable to shoot for 20 percent."

If his laboratory comes back with a test with a more than 2 percent variance, Lantz says, they reject it.
http://www.csindy.com/coloradosprings/blood-and-circus/Content?oid=2583641