At least 7,800 DUI and other cases involving blood tests could be in jeopardy in Houston alone after a recall of blood testing vials. The Houston Forensic Science Center announced recently that a small portion of a lot of 240,000 vials were manufactured without a required preservative that keeps blood from clotting in the vials.
If blood tests are performed in vials without the anti-clotting agent, the blood alcohol results could appear lower or higher than they actually were. That potential inaccuracy could lead to thousands of cases being thrown out of court.
Although the news comes out of Houston, the recall of BD brand Vacutainer blood testing vials is nationwide. It is unclear how many testing vials have been recalled from Tennessee.
“This is a serious issue for caseworkers,” said the Houston Forensic Science Center’s president and CEO. “These are vials that blood alcohol samples are collected into, across the whole country.”
According to the Houston Chronicle, the manufacturer, BD, says 300 vials of a lot of 240,000 were manufactured without the anti-clotting agent. BD recovered 199 of those faulty vials, but it’s impossible to know where the remaining 101 may be.
Some tests might be accurate even in the recalled vials if the testing was completed within two days — but most DUI blood tests take longer than that. Additionally, blood stored without the anti-clotting agent could spoil in hot weather.
“Effectively, every test can’t be trusted,” said the director of the Harris County District Attorney’s Office’s vehicular crimes division. “We’re going to have to have manpower and eyes on every one of these vials.”
Many defendants will want to challenge their blood tests as unreliable, whether they are awaiting pending charges or have been convicted. And they have a right to, as there is no way of knowing which tests may have been performed without the anti-clotting agent and show a higher BAC level than was truly warranted.
If any Tennessee law enforcement agencies received defective blood testing vials, they have a duty to notify convicted defendants and their attorneys to ensure they have an opportunity to reopen their cases, according to a spokesperson for the National Association of Criminal Defense Lawyers.
“The harm is the risk of potentially false convictions, people being convicted on the basis of results that suggest they were above the limit when they were actually not above the limit,” commented a Houston DUI defense lawyer.
This situation is developing and we have no information about whether faulty BD Vacutainer vials have been used in Tennessee. If you believe your blood alcohol test results were unduly high, discuss this issue with your defense attorney.