published Sunday, April 27th, 2014

Attorneys challenge DUI test results from hospitalizing crash case in Chattanooga

A 26-year-old man who is expected to go to trial next month on DUI charges got inflated blood alcohol results from the state's lab.

Joseph Gallant was hospitalized at Erlanger hospital after a traffic crash, and Chattanooga police officers suspected him of driving under the influence.

His initial blood alcohol level came back at 0.21, nearly three times the legal limit of 0.08.

However, the Tennessee Bureau of Investigation toxicology unit, which conducts tests for blood alcohol levels, did not specify whether serum or whole blood was tested, the official results obtained by the Times Free Press show.

That's problematic because serum tests for alcohol generally inflate by about 10 percent compared to whole blood. Serum has more water than blood and more ethyl alcohol is found in body fluids that have more water.

Gallant's attorney, Jerry Summers, said the difference is important. In borderline DUI cases, an innocent person could be convicted or have an enhanced charge, Summers said.

Every time a blood test helps convict someone of DUI, the Tennessee Bureau of Investigation's toxicology unit is awarded $250 in court fees.

"It provides a financial incentive for the toxicology unit," Summers said.

"We would strongly disagree with that assertion," said Josh DeVine, a spokesman for TBI. "It costs money to do what we do here."

TBI's blood-alcohol tests are mostly from whole blood samples, he said.

The law was put in place a few years ago during harder economic times to ensure forensic services would continue to be completed by TBI and to spare law enforcement agencies the added costs of paying to test every piece of evidence, he said.

"It came to the point we had to do something: Assess law enforcement departments for every piece of evidence we test or have the offenders pay for the tests," DeVine said.

The fees fund forensic scientist positions and pay for supplies, education, training and scientific development of employees "or for any other purpose so as to allow the bureau to operate in a more efficient manner," the law states.

Between the start of the fiscal year July 1 and March, TBI collected $2.2 million in fees. In fiscal 2012-13, the unit collected more than $2.8 million across the state.

The fees fund a majority of the labs' budgets across the state. The fees make up 5 percent of TBI's state funding.

In Hamilton County, there have been 278 convictions for DUI so far this year. That translates to $69,500 in fees for the fund. County records show a total of $59,028 has been paid this year, which could include convictions from prior years.

In 2013, there were 735 DUI convictions in Hamilton County that could lead to $183,750 for the toxicology unit. A total of $85,935 was made in payments for the fees last year.

Representing serum in reports

Experts say there's a way to represent serum results in an accurate manner.

Forensic scientists can use a conversion formula to give an accurate range of someone's blood alcohol, said Larry Kobilinsky, professor at John Jay College of Criminal Justice in New York. Kobilinsky has worked with lab personnel in other countries where labs need improvements in forensic science.

"They have to be very specific on that. If they're not, then they are jacking up the numbers. And it's deceitful," he said.

Nothing on Gallant's TBI report indicates whether serum was used, but Summers' firm learned from TBI that it was.

When Summers' firm contacted the state lab and asked for the conversion, Gallant's blood alcohol results actually came back at 0.1779, still more than twice the legal limit.

In Tennessee, a DUI conviction where the blood alcohol is 0.20 or greater results in seven days in jail, compared to 48 hours for a lower level. Prosecutors were forced to downgrade the charge in Gallant's case.

"Any report should clearly state whether the sample is whole blood, serum, or plasma," Summers said.

The TBI counters that serum results don't need to be recalculated even though they are represented as whole blood results in the report, said a former spokeswoman for the TBI.

"There is no 'set in stone' conversion factor, and many ranges can be found. TBI reports the results we receive from testing the evidence submitted. It would be inaccurate to list an attempted conversion as our result," then-spokeswoman Kristin Helm said in December.

"Frequently TBI's testing requires further explanation, which is why agents are often called to explain the results to both the prosecution and defense and testify in court," Helm said.

Kobilinsky argues a conversion range can be given on reports. To not provide it misrepresents the results, he said.

"When it comes down to a [DUI] case, and they're asking you for a very good reliable estimate," Kobilinsky said. "There's a simple formula you can use to determine the relationship between blood and serum. But there are error flags; it could go either way. You want to include a range of estimates. That's the smart way to present the data."

Summers has filed a motion to dismiss blood testing evidence in three DUI cases that could potentially set a new precedent across the state.

He argues that the TBI is not an objective entity to test blood alcohol results because the agency financially benefits from convictions.

"It would affect every case in the state where they convicted somebody. Of course, then you get into the question, will it apply only to cases in the last year where they collected money," he said.

Summers is expected to appear before all three of the county's Criminal Court judges May 16.

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