Last month as news broke out about serious issues with integrity of thousands of Becton Dickinson (BD) grey Top blood testing vials, news crews and government officials alike scrambled to get out ahead of the story.
A “critical problem” they called it, describing the estimated 1700 testing kits potentially impacted by BD’s faulty manufacturing. DWI prosecutors like W. Clay Abbot declared that they suspected only a small amount of cases, both in Houston and in other cities that received shipments from BD, would have been affected by the defective vials.
However, It has been discovered from an in-depth analysis of Tyler Flood’s law office that the issue is significantly more far-reaching, potentially rendering thousands of DWI blood tests completely invalid in the city of Houston alone. After reviewing the blood submissions from just one of the three crime labs in Houston, over 700 people’s DWI blood draws samples are completely compromised, and this number is just from the last nine months.
Developments in the BD Blood Vial Scandal
Since first hearing about the development in late June, our legal team has been hard at work sifting through heaps of documents in order to figure out the extent of the problem with DWI defendants in Harris County. What we discovered is nothing short of a powder keg waiting to explode.
From documents and analysis derived from only ONE of the three testing labs in Houston, we have concluded that in the last nine months 756 real people have had the evidence presented against them effected by the faulty vials.
The amount of DWI cases in the Houston area impacted by this turn of events could be far greater than that, once the other two facilities are factored in. Articles published last month took into account the words of various government officials and BD representatives when they perceived the scope of this scandal to be composed of only a slight number of vials produced.
What we now know to be true is that the amount of defective vials—and the number of cases influenced—is much greater than anyone previously imagined. It is anything but “slight.”
A Brief, Storied Explanation of DWI Chemical Testing in Texas
Like many other states, Texas can force a person to give a specimen of their blood. First a person is asked if they freely consent. If the person says no, then a warrant can be obtained requiring an officer to obtain a sample. If the subject does not cooperate, the officer(s) will use physical force to hold the subject down so that blood can be drawn.
We know from experience that every test can arrive at an inaccurate, unreliable reading many different reasons. In some instances, the test is administered illegally, usually when there was no valid probable cause to order such a test. In other instances, the BAC is gathered without following state-ordered procedures. And on some occasions, such as what has occurred recently with defective testing kits, the entire test is made invalid due to improper storage or flawed preparation.
In cases such as these, the right thing to do is to contest the state’s evidence. As DWI attorneys, we have seen more than a few cases thrown out due to issues with the state’s collected evidence.
Take these issues for example:
Houston Lab Tech Accused of Making Multiple Forensic Errors
Harris County DA’s Office: Police Investigator Made Errors in 65 Cases
Houston’s DPS Crime Lab Investigated For Mix-Up in Mailing Blood Sample
What do all of these examples have in common? They all demonstrate a fundamental unreliability when it comes to how the state collects evidence from chemical tests. In a perfect world with perfect mechanisms and procedures for collecting blood and determining BAC levels, there would be no conflicting issues to dispute the evidence the state puts forward. Unfortunately for all of us, we don’t live in a perfect world.
In the process of representing our clients to the best of our ability, one of the first steps we must take is determining if the evidence presented against our client was obtained properly and legally.
Going Forward
Upon initially learning about the issues with the blood vials, the Flood & Associates legal team kicked into high gear in order to process a great deal of information. This deep-dive allowed us to crack open the actual scope of the total amount of cases impacted. As we continue to pour through data regarding affected blood vials in order to learn more about the potential ramifications of this incident, we will keep our clients and the public aware of the developments.
As defense lawyers and as dutiful citizens, it is up to us to hold the government accountable for improperly gathered or stored evidence, and we plan to keep fighting.
