State Patrol July 4 tally: 2 fatal crashes, 17 DUI arrests

DUI checkpoint set up on Platte Avenue near Chelton Road in this 2006 file photo. Photo by The Gazette file

Some drunken drivers in the Pikes Peak region might have room to maneuver in court because of mistakes by the state toxicology lab, say defense attorneys who plan to challenge the lab’s blood evidence.

At issue is the Colorado Department of Public Health and Environment’s testing for blood-alcohol content, which many law enforcement agencies rely on to establish if someone is over the legal limit for driving, .08 percent.

In early May, the Denver Post reported that the department’s forensic toxicology lab in Denver would retest 1,700 samples after learning that a former employee had failed to follow test protocols, opening the door for attorneys to challenge drunk-driving cases.

The lab has since reanalyzed 1,300 of the 1,700 samples and identified 11 samples with “significant” errors, all in the defendants’ favor, said David Butcher, the department’s director of laboratory services.

The lab technician blamed for the mistakes, Mitchell Fox-Rivera, was fired in March for unsatisfactory performance, his former supervisor said in an email obtained by The Gazette, and Butcher said the lab has moved to introduce peer-review measures in which lab technicians randomly retest each other’s samples for mistakes.

The assurances have done little to dissuade attorneys who plan to argue in court that the lab was slow to acknowledge problems, and either sloppy or dishonest in its disclosures.

They say more than a dozen local cases demonstrate that testing mistakes by Fox-Rivera could have unfairly punished their clients.

Part of the dispute hinges on the definition of what’s “significant” when it comes to differences in blood test results.

According to the department of Public Health and Environment, any re-tests that showed a lower result were within the lab’s “analytic acceptability” – meaning the new results were no more than 10 percent lower and therefore aren’t scientifically significant.

The plus or minus 10 percent margin of error was adopted by the Colorado Board of Health based on recommendations by the American Board of Forensic Toxicology, Butcher said.

“If they were lower, it wasn’t outside that limit,” Butcher said.

Steve Rodemer, who said his firm represents nine drivers who scored lower on re-tests, countered that flawed testing by Fox-Rivera could have translated to mandatory jail time and hundreds of dollars in additional requirements for some drivers.

Rodemer said preliminary results by ChemaTox Inc., a private lab certified through the Department of Public Health and Environment, came up with a result that was 19 percent lower for one client – dropping his BAC from .206 to .167 percent.

That meant his client was below two important legal thresholds that help determine penalties for drunken drivers, Rodemer said.

In Colorado, anyone convicted of drunk driving who scores above a .20 percent must serve 10 days in jail.

At .17 percent, a driver is considered a high blood-alcohol offender. Such drivers often end up with an ignition device on their vehicle for more than two years, at an expense that can top $2,000.

Rodemer said he is awaiting a final report from the private lab, but has alerted prosecutors in Alamosa County to the discrepancy.

One other client’s blood test dropped from .185 to .162 after retesting by ChemaTox, again dropping him below the .17 percent mark, Rodemer said.

Butcher said an investigation found that Fox-Rivera probably wasn’t putting enough blood into the device used to determine blood-alcohol content.

Steven Katzman, who represents one driver affected by the testing, questioned that explanation, saying if that were the case, errors in blood tests should be either consistently high or low, not a mix of both.

“Quite frankly, I don’t think they know what the problem is,” he said.

Rodemer said he’s accustomed to seeing variations of .01 percent after testing by private labs, and that swings in Fox-Rivera’s samples caught local attorneys by surprise. He questioned if other lab workers were repeating the same errors.

Inconsistent statements from the lab’s supervisor stoked questions about the scope of problems at the lab, Katzman said.

Toxicology supervisor Cynthia Silva Burbach swore in an April affidavit that “no retest has resulted in a lower actual BAC than was originally reported.” Sixteen days earlier, she approved a re-test that dropped Katzman’s client’s blood-alcohol content to .199 percent from .218.

That’s a 9 percent difference, and it could have led to a jail sentence.

“I would call that significant,” Katzman said. “Either she’s not paying attention to what she’s doing, or she’s not telling the truth.”

Mark Salley, a spokesman for the Colorado Department of Public Health and Environment, said that because the results are within 10 percent, Burbach’s sworn statement wasn’t inconsistent.

Fox-Rivera couldn’t be reached for comment. He told the Denver Post that he was hired out of the University of Colorado-Colorado Springs in October and that Burbach should have been supervising his work more closely.

“For someone to say, ‘It wasn’t my fault – somebody should have caught my mistakes,’ is kind of lame in my opinion,” Butcher said.

Attorney Tim Bussey, who represents at least one client whose initial blood test was done by Fox-Rivera, is among the attorneys seeking more information from Department of Public Health and Environment about the errors.

He plans to ask a judge to compel the release of documents, or to dismiss his client’s case. Part of the aim is to discover more about how the errors occurred.

“If you’re getting such a significant difference, it calls into question the reliability of your testing methods,” Bussey said.

This isn’t the first time mistakes in blood-testing had consequences for drunk-driving cases in the Pikes Peak region.

In April 2010, 4th Judicial District prosecutors had to dismiss or reduce nine drunken driving charges as a result of 206 errors a former Colorado Springs Metro Crime Lab forensic chemist made on cases dating to 2007.

The crime lab – located at the Colorado Springs Police Operations Center – relinquished its certification for blood testing in the wake of the scandal and is among more than 200 agencies statewide that rely on the state toxicology lab.

Contact Lance Benzel: 636-0366 Twitter @lancebenzel

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