Blood Alcohol Test
The most accurate of the tests for alcohol is a blood test. This test also can check be used to check for drugs, which the breath test cannot. The test is often given at a hospital. The test must be provided by a certified person. Further, there are steps that person must take to ensure proper administration of the test. You have a right to have the blood sample independently tested, but you have to inform the State crime lab to hold your blood so they do not destroy it.
Errors in blood tests include:
1. Phlebotomist (person drawing the blood) drawing it wrong, or not using the correct tubes, or inverting the blood. The blood should be drawn from a "blood kit" with tubes that contain an anti-coagulant, and preservative to prevent fermentation.
2. The Officer forgets to refrigerate the blood, which can allow bacteria to grow in it, which can increase the alcohol of the blood.
3. Not having a preservative which supposedly inhibits bacteria from growing which can increase the alcohol content.
4. Mislabeling the tube.
5. Chain of custody issues.
6. The State crime lab not analyzing the blood correctly. The analyst could do something wrong, or the machine might not be working properly that day. This is why it is important to look at the chromatograms from the GC.
The Statutes related to blood collection and analyzing include:
Saf-C 6402.02 Blood Sample Collection.
(a) Blood samples shall be collected pursuant to RSA 265:85, I, RSA 270:52, I, or RSA 215-A:11-d, I.
(b) A cleanser shall be used to clean the area of skin where the blood specimen will be drawn. The cleanser shall contain no ingredients that would interfere with an analysis for alcohol or drugs
(c) The person who collects the blood sample pursuant to RSA 265:85, I, RSA 270:52, I or RSA 215-A:11-d, I shall complete a blood sample collection form.
(d) The completed blood sample collection form shall include:
(1) The name and title of the person withdrawing the sample;
(2) The name of his/her employer;
(3) The name of the suspect;
(4) The date and time the sample was drawn in accordance with Saf-C 6402.02;
(5) The type of cleanser used to prepare the site; and
(6) The signature of the person who took the sample.
(e) The original copy of the blood sample collection form shall be retained by the submitting agency and a copy shall be given to the person who withdrew the sample. The form shall be admissible evidence of proper sample collection pursuant to RSA 265:90, IV.
Typically, if the blood was taken at a Hospital at the request of law enforcement, a specific form will be used. See Attachment ***. This form, if filled out properly, will include all of the information required in Saf-C 6403.02.
iii. Who collected the sample?
Only a duly licensed physician, registered nurse, certified physician's assistant, or qualified medical technician or medical technologist acting at the request of a law enforcement officer, authorized agent, or peace officer may withdraw blood for the purpose of a test required by RSA 265-A:4.
This information will be on the blood collection form. Although, it is often abbreviated as initials on the form. Because the person who drew the blood does not have to be present, accordingly, there will be no testimony from that person. I often argue the initials make it unclear as to whether the person was qualified as required.
iv. What type of cleanser was used?
The area must be cleansed with a cleanser that contains no ingredients which can interfere with the analysis. Typically, povidone-iodine. Things that should not be used, obviously include alcohol, or things that may contain alcohol, such as soap.
v. Blood collection tubes
Saf-C 6402.03 Blood Sample Collection Container.
(a) The container used for collection of a blood sample shall meet the following criteria:
(1) Be a commercially available evacuation tube, or a glass bottle; and
(2) Contain a preservative such as sodium fluoride and an anticoagulant such as potassium oxalate sufficient for the volume of sample collected.
It will be difficult to show what preservative, if any, was in the container. The State lab does not check for it, and often the police officer or phlebotomist have no idea. One way you can usually tell, is gray top tubes are the ones that are supposed to be used for legal blood draws to determine BAC. The grey top indicates a preservative is in the container.
Practice Tip: Get all of the data from the Crime lab regarding the blood. Part of the information should include whether the tube had a grey top.
Usually, the officer gives the phlebotomist a “blood kit”. The blood kit should have the correct container/tubes, and will often contain the correct swabbing cleanser.
v. Was the blood properly shipped
Saf-C 6402.07 Sample Handling and Transport.
(a) The law enforcement officer shall submit the secured container to the forensic laboratory in accordance with RSA 265:85, II, as soon as feasible.
(b) If mailed, the sample shall be mailed by registered or certified mail to enable tracking of the sample.
(c) The mailing container shall conform with postal regulations in effect at the time of shipment.
vi. Was the blood properly analyzed
Saf-C 6402.08 Sample Receipt and Identification.
(a) The forensic laboratory shall record on the DSSP 20 form the following information for each sample received pursuant to RSA 265:84, RSA 270:49 or RSA 215-A:11-a, II:
(1) The forensic laboratory number assigned to the sample; and
(2) The record of evidence information.
(b) Any problem encountered with the sample from the time of receipt to the date of destruction shall be noted in the case file.
(c) A sample submitted in accordance with Saf-C 6402.08 shall be placed in a secure refrigerator until the time of testing or destruction.
(d) Forensic laboratory personnel shall maintain a record of evidence on the DSSP 20 to document all handling of the sample until the sample is released or destroyed.
New. #8620, eff 5-1-06
Saf-C 6402.09 Alcohol Method.
(a) A blood or urine sample submitted for determination of alcohol concentration shall be tested by gas chromatography.
(b) An internal standard shall be used in the testing of all samples to determine the concentration of analyte.
(c) Prior to each day’s testing, the forensic laboratory shall calibrate a method or verify a previously calibrated method.
(d) A blank standard shall be tested at the beginning of each day. Sample test results shall not be reported if the blank standard result is greater than 0.004g/100ml for blood or 0.004g/67ml for urine.
(e) A minimum of 2 standards of different concentrations shall be tested at the beginning and end of each day that samples are tested as well as after every tenth sample.
(f) A minimum of one control shall be tested in duplicate each day that samples are tested.
(g) Sample test results shall not be reported if either of the standard or control test results do not fall within the predetermined range of accuracy and precision for the procedure employed.
(h) Each sample shall be tested in duplicate.
(i) Results of duplicate testing shall fall within the predetermined limit of precision for the procedure employed. Test results which exceed the precision limit shall not be reported.
Practice Note: If you have your ALS hearings in Concord, unfortunately, the crime lab is in the same building. Accordingly, a “certifying scientist” is almost always available to testify.
Saf-C 6402.10 Recording of Analytical Data.
(a) All analytical data shall be recorded daily to include:
(1) The date of testing;
(2) The target values, ranges and test results of all blanks, standards and controls;
(3) The lot numbers and expiration dates of solutions used;
(4) The type of equipment used;
(5) The results of the testing;
(6) The reported value determined in accordance with Saf-C 6402.11;
(7) A notation of any problems with the testing; and
(8) The name of the person who conducted the test.
 N.H. RSA 265-A:5