DUI blood tests could face scrutiny after judge's ruling: East Lansing attorney works case in Ludington area
Blood tests in drunken-driving cases statewide will face more scrutiny, experts say, after a Mason County judge ruled that the state crime lab's test results "are not reliable."
In a ruling signed Friday, 79th District Court Judge Peter Wadel refused to admit blood-alcohol results in a drunken-driving case. He said the crime lab - which conducts blood and other forensic tests in cases from around the state - does not report an error rate, or margin of error, along with blood-alcohol results.
Police routinely report a single number for blood-alcohol content in drunken-driving cases. But East Lansing attorney Mike Nichols, who is handling the case in Mason County - which includes the city of Ludington along Lake Michigan - said there are no absolutes in science.
"Everyone says a blood test is so accurate. Well, it's not," Nichols said. "That's what this judge has ruled."
Not including a range of possible results, Nichols said, ignores the uncertainties in the collection, handling, analysis and reporting process.
A blood-alcohol level of 0.08 percent is the threshold in Michigan for being charged with drunken driving. But Nichols said when someone's blood-alcohol is determined to be 0.10, for example, it could actually be higher - or lower - than 0.08.
The Mason County case is being watched by attorneys across Michigan and the country.
Washington-based attorney Ted Vosk, who consults with defense attorneys and prosecutors about the importance of calculating error rates, praised Wadel's ruling.
If police and prosecutors don't acknowledge scientific uncertainties, Vosk said, innocent people will be convicted and guilty people will go free.
"And we won't know which are which," he said.
Vosk said Washington and Michigan are the only two states in which judges have made rulings challenging blood-alcohol tests.
Wadel's ruling is not binding on any judge outside of the 79th District Court, which includes Mason and Lake counties. But it likely will have impact statewide, Thomas M. Cooley Law School professor Ron Bretz said.
Judge rules against blood-alcohol tests: Not retroactive, and only in Judge Wadel's court
By Marc Thompson
GRAND RAPIDS, Mich. (WOOD) - A judge ruled blood-alcohol tests conducted by the Michigan State Police Crime Lab are unreliable, and will not be admitted in his court.
The judge made this ruling on a blood test, taken from a collected blood sample that was tested at the MSP lab. But to prove his point Tuesday, attorney Michael Nichols set up a simple breath test experiment.
Two of his staff members consumed one beer apiece over a 45-minute period. After waiting the required 15 minutes, each blew eight times over an approximate 10-minute period.
In the results, each of the staff member's numbers varied at least once in the course of the test. Nichols said this proves that it's nearly impossible to get one exact number, and there must be a margin of error.
The same principle applied when state police conduct a blood-alcohol test in the lab, Nichols added.
"Any instrument that attempts to measure something in the human body, is going to have bias in the instrument itself -- from hour to hour and day to day and week to week -- and differences in the person who is providing the analysis or the sample," he told 24 Hour News 8. "And then, you're going to have differences in analyst to analyst and officer to officer taking the sample."
In a series of hearings, 79th District Judge Peter J. Wadel listened to testimony from state police lab technicians, who argued all blood samples are tested thoroughly -- two different ways, using the lowest value as the exact BAC number. No margin of error is factored in or needed here, they contend.
But Judge Wadel disagreed, ruling there are natural inconsistencies in the testing. An error rate exists, he said, and that's information a jury should have.
That margin of error can mean the difference between guilty and not guilty, for someone on the cusp of the .08 legal limit in Michigan, Nichols said.
"(It) ruins your life," he said. "A DUI in the state of Michigan, you can never get off your record."
To support his ruling further, Wadel cited the fact that the American Society of Crime Laboratory-Laboratory Accreditation Board -- which gives the MSP lab its accreditation -- has required state police to come up with an uncertainty budget, or a margin-of-error scale.
The MSP lab has not complied yet.
This ruling is not retroactive, and will not affect past operating-while-intoxicated cases. For now, this only applied in Wadel's court. State police officials strongly disagree with the judge's ruling, they said Tuesday night.
A prosecutor is looking at ways to have the measure overturned. This is the first ruling of its type in Michigan, and cases still can be tried on the basis of a field sobriety test.