WENATCHEE — Six blood collection tubes included in three separate cases of driving under the influence in Chelan County District Court are being called into question. The defendants are asking the court to suppress the evidence.
Blood drawn from three people arrested on suspicion of driving under the influence in 2021 were sent in vacutainer tubes to the Washington State Patrol Toxicology Lab for testing.
But in the time it took to eventually analyze the blood for intoxicants — almost a year later for some of the samples — the collection tubes had passed the manufacturer’s expiration date.
A vacutainer tube is a glass or plastic tube with a colored rubber stopper meant to transport and process blood in clinical laboratories.
The samples were tested in 2022, while the vials expired in 2021.
John Brangwin, attorney for one of the defendants, filed a motion Nov. 7 to suppress the toxicology report and any testimony related to the report as the defendant’s argued the expiration of the tubes affected the integrity of any results obtained from the samples.
Judges Allen Blackmon and Jon Volyn heard testimony on the matter Jan. 19 from two staff members at the toxicology lab and a legal consultant testifying for the defense.
Dr. Fiona Cooper, director of the Forensic Laboratory Services Bureau and state toxicologist, said that “the use of expired tubes as a storage vessel … has no forensically significant impact,” according to court documents.
Rebecca Flaherty, forensic science supervisor at the toxicology lab, also said “she has never seen anything that expired tubes cannot be used in forensic settings,” according to court documents.
Suzanne Perry, a legal consultant for the defense, however, said that it is not generally accepted to use expired tubes and that expired tubes would not produce accurate results.
Some of the problems that could arise include “clotting and micro-clotting, degradation of the blood sample due to the integrity to the cap, chemicals, a broken seal, and leaky tubes,” Perry said at January’s hearing.
The judges in March ruled against suppressing the evidence, arguing in part that state law that a valid blood test is performed according to methods approved by the state toxicologist.
The manufacturer of the vacutainer tubes, Becton Dickinson, do not recommend the tubes are used past the expiration date. Despite this, judges ruled that the company did not state the results would be unreliable after the expiration date. They specifically “made no guarantees” after the expiration date, according to court documents.
And so, the expiration date on the tube is not a “determining factor” in whether the tube has been affected by “adulteration,” meaning something has worsened in quality. And samples are not required to be free from all adulteration, just adulteration that could produce an error, according to the judges.
Because there appeared to be no evidence that any of these blood sampled were “contaminated, adulterated, unclean, or otherwise unfit for use,” the judges denied the defense’s motion to suppress this evidence.
Brangwin filed a motion for reconsideration March 17 pushing back against the judges’ order arguing that they heavily relied on the testimony of Flaherty, who is not the state toxicologist.
But more importantly, Brangwin argued, the court cannot admit any toxicological analysis from expired vials as they are non-sterile and do not comply with state law in regards to “mandatory language” in state law.
For example, if the vacuum seal on the tube is not effective after its expiration, the tube can no longer be considered to have a “leak-proof stopper” which is a requirement by state law.
Brangwin’s motion also finds issue with the judge’s characterization of Perry’s testimony as “speculative and unsupported.” Based on Perry’s expertise and her testimony, using expired vials does not have “widespread acceptance” and instead is a “decried practice en masse,” according to the motion.
Brangwin said in an email April 4 that the court’s issued a ruling that was “completely unsupported by the facts and the law.” Brangwin said they might appeal if judges do not reconsider.
The next hearing on this issue is set for April 26.
