The state is retesting 1,700 DUI blood samples after a laboratory employee failed to follow proper procedures, which skewed the results of the tests.
The mistakes open the door for defense lawyers to challenge all of the blood testing in driving-under-the-influence cases conducted by the Colorado Department of Public Health and Environment’s lab.
“There was a situation where an outside lab ran a sample that caused us to rerun a sample, and we were able to track that to a certain employee who was not following the standard operating procedures,” health department spokesman Mark Salley said.
The lab processes DUI bloodwork for 225 law enforcement agencies in Colorado. Some law enforcement agencies, including Denver police, have their own labs. Others contract the bloodwork out to an independent lab.
So far, the state has tested 850 of the samples and found 10 with inaccurate results, Salley said.
Salley said the inaccurate results were in the defendants’ favor because they showed a lower blood-alcohol reading than the second analysis. For example, a first, inaccurate reading on which a suspect’s charges were based might have said the blood-alcohol content was a 0.10 percent, when in reality it was 0.17 percent.
“As soon as we were aware of the situation we took action,” Salley wrote in an e-mail. “We are reanalyzing all samples using standard methodology and standards and controls. Once a retest is completed the appropriate district attorney’s office is notified and they can pursue the case with a new analyst.”
Colorado public defender Douglas Wilson said his office hasn’t been notified of the laboratory errors.
“You would think somebody might share this with everyone,” Wilson said. “I have not heard a peep.”
The Denver Post obtained a March 21 e-mail written by lab supervisor Cynthia Silva Burbach that says lab employee Mitchell Fox-Rivera was fired for unsatisfactory performance March 14 and that the errors were discovered March 9.
Salley declined to confirm the name the employee but said the department is retesting all of the employee’s work, which spans a period of about five months.
“Please ask all DDA’s (prosecutors) that have pending cases with Mr. Fox-Rivera to call the main lab,” Burbach wrote in her memo. “These samples are being moved to the front of the line.”
Colorado Springs attorney Steven Katzman was notified that some of his client’s cases were tested by Fox-Rivera, and he plans to challenge the evidence.
“A judge or a jury is going to be entitled to know the full extent of what was reported, and you are going to wonder what is the discrepancy and can we trust anything?” he said.
Katzman said DUI laboratory errors occurred a couple of years ago at the Colorado Springs Police Department’s lab and several samples had to be retested.
“In some situations, they had people who had pled to cases and they had to reopen some cases,” Katzman said. “And in one or two cases, people shouldn’t have been charged and it created a mess.”
Source: The Denver Post, “Colorado to retest 1,700 blood samples from DUI cases after lab employee’s errors uncovered,” Felisa Cardona, April 20, 2012.