High error rates discovered for Austin PD blood tests in DWIs

When the defense had a blood sample in an Austin DWI case retested, a private lab came up with results 20% lower than the Austin PD blood test given on one of the city's "no-refusal" weekends. Reported My Fox Austin:

"My client was arrested on July 4th weekend on a no refusal initiative," said Attorney [and former Forensic Science Commission chairman] Sam Bassett.

Bassett said his client was forced to surrender his blood. The sample was tested at the Austin Police Department's crime lab. The results, in a report 18 days later, revealed the blood alcohol content tested at 0.10, just above the legal limit.

"There's always a question when you are dealing with law enforcement crime labs, in my experience there are errors," said Bassett.

After fighting for 10 months, Bassett finally got a court order to have the blood sample retested. He sent it to the Southwestern Institute of Forensic Sciences in Dallas, an accredited and nationally recognized lab. And weeks later, he said the results were surprising.

"It was very surprising to me that there was such a difference," said Bassett.

The retest showed a problem, APD's analysis was 20 percent different.

The sample tested by the Southwestern Institute of Forensic Sciences now at a .08, right-on the legal limit.

One sample. Two different results. So what happened? Why did APD test higher?

"At least half of the ones that I have seen were performed incorrectly," said [attorney] Ben Florey.

Florey said he's seen this many times before. He says he's had to help a number of clients fight what he calls "bad science".

"They're back logged, and I would imagine that they make mistakes," said Florey.

"That starts to raise issues about the quality of the machinery, whether it's being properly calibrated. Whether the people doing the calibration are qualified to do it," said Attorney Bill Mange.

Another expert contacted by the TV station said the 20% error rate was too high: "'Twenty percent would not be an acceptable discrepancy with in a laboratory that they can evaluate what is right and wrong,' said Toxicology expert Dwain Fuller." Notably, breath specimens in DWI cases are specifically exempted under the authorizing statute for the Texas Forensic Science Commission, but blood tests such as this would seem to fall under the FSC's purview. This might be a good issue for them to take up.

It's worth remembering that Austin PD arrests many more people per capita for DWI than other large Texas jurisdictions and has a much larger percentage of their cases dismissed. This news perhaps supplies another datapoint helping explain that odd but consistent outcome. In the meantime, Austin is considering shifting to a "no refusal" policy on DWI arrests every day instead of only on holidays and other higher-risk weekends.

Grits is surprised to read this story because blood tests have been touted as much more accurate than breathalyzers. But a 20% error rate (on the high side, no less) means it's possible some borderline cases - where the blood test comes back close to the .08 mark - are being falsely charged.

MORE: From Paul Kennedy, "Blood or Breath?"