By Mark Ackerman and Brian Maass
DENVER (CBS4)– Poorly written instructions are being blamed for botched blood alcohol tests conducted by a scientist at the Colorado Bureau of Investigation.
In January, a CBS4 investigation revealed mistakes in 56 blood alcohol tests during a four month period from August 2015 through November 2015.
The problems were discovered through a confluence of events last December. A CBI refrigerator used to cool blood vials malfunctioned, leading to a need to retest DUI samples housed in the refrigerator. At the same time, independent labs, ChemaTox and Rocky Mountain Instrumental Laboratories, started noticing problems and reported them to the Colorado Department of Public Health and Environment.
“To see this many discrepancies when the CBI just started this summer, is at a simple overview, way too many discrepancies,” said lab director Pat Sulik of Rocky Mountain Instrumental Laboratories.
The Colorado Department of Public Health and Environment is responsible for certifying labs and launched a formal investigation into the lab testing procedures at CBI. The errors traced back to a CBI scientist, working at the agencies’ Pueblo lab, who was using faulty procedures and allowed too much alcohol to evaporate during the tests. The error resulted in 56 of the 123 tests the scientist conducted were reported more than 10 percent too low. No defendants were overcharged because of the lab testing errors.
“I can’t fully explain why it wasn’t caught in each instance before it went out,” said CBI Director Mike Rankin who in addition to the refrigerator problem and the outside labs noticing discrepancies, says internal quality control first detected the testing issue. “But, I do feel comfortable that it was eventually caught and we’ve taken really aggressive steps as we go forward.”
Rankin called the situation “regrettable” and said the CBI immediately stopped testing once the problem was identified. He called the problem “a procedural issue” and said the scientist was not disciplined for following an imprecise set of standard operating procedures, which have now been rewritten. The entire staff was also retrained on the new procedures.
The CBI says the faulty refrigerator did not impact any of the blood samples it was storing or any of the 56 problem tests.
So what happens to the 56 people whose blood tests were reported inaccurately?
“I think there will be some reevaluation of those cases because of those testing errors,” Rankin said. “But those decisions on how they are prosecuted are up to the District Attorneys.”
A total of 29 of the 56 cases are now closed, 18 were either dismissed or plea bargained down to a lesser charge than the original Driving Under the Influence charge. The remaining 27 are still working their way through the legal system.
“Bob’s” case is one of the remaining 27. He spoke with CBS4 about his drunk driving arrest on the condition of anonymity. Bob admits he was behind the wheel and rear ended another car last November.
“Unfortunately, I hit the car but I wasn’t going that fast,” he said he was given a roadside sobriety test. “I thought I passed that. I don’t know, somehow they decided to arrest me. I guess they assumed I was drinking.”
He was taken into custody and two vials of blood were drawn in an attempt to determine if he was drunk. His initial blood test came back from the CBI lab in Pueblo at 0.11, which is over the .08 legal limit for Driving Under the Influence. Upon retesting, the CBI determined that Bob’s BAC was actually 0.13, a 14 percent difference from what was originally reported. In identifying the problem, Bob’s attorney, Jay Tiftickjian, now believes the CBI compromised the second vial of blood which is supposed to be reserved for the defense to test at an independent lab. In a sworn affidavit, Rocky Mountain Instrumental Laboratories refused to test Bob’s defense sample because “the original seal on this tube was broken by some individual at one of the CBI facilities at some unknown time and kept unsealed from that point forward until shipment to RML.”
“Essentially the government has taken away our ability to do our own independent testing,” said Tiftickjian. “Therefore, I think the case should be dismissed.”
The CBI confirms its quality assurance program tested second vials, or “defense samples” in the identified cases, but left an ample amount of blood for additional, independent testing, and in “no way compromised defense samples.”
Although Tiftickjian only has one case on the list of 56, he says the lab testing problems have broader implications. He plans to bring up the errors in every case he tries involving the CBI lab.
“Anything that came out of that lab really can’t be trusted right now,” he said. “It’s a lot easier to reduce a charge and make it go away. We should litigate these cases.”
Bob’s case is back in court in May.
At least seven of the 56 cases were adjudicated before the problems were made public.