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BD, a New Jersey-based supplier of testing vials, has announced a nationwide recall of some test tubes commonly used for blood alcohol tests in DUI cases. Some of the test tubes were manufactured without a necessary chemical that prevents clotting of the blood sample. Without that anticoagulant, the blood becomes unstable after a couple of days and tests performed on it are unreliable.

This news comes to us primarily from the Houston Chronicle, which covered the effect of the nationwide recall in Harris County, Texas. The Houston Forensic Science Center, which distributes the test tubes in Houston and regionally, announced the recall.

There is little chance that the samples are being tested while they are still stable, according to the director of the Harris County District Attorney’s Office’s vehicular crimes division. In both Texas and Pennsylvania, DUI blood tests usually take longer than two days.

After a couple of days, blood that does not have the anticoagulant will produce blood alcohol test results that are either unduly high or unduly low. Either way, the evidence would be unreliable.

“Effectively, every test can’t be trusted,” the director explained. “We’re going to have to have manpower and eyes on every one of these vials.”

If the faulty test tubes were used, the evidence is unreliable

Officials say they will manually check each vial for evidence of clotting. The manufacturer, BD, asserts that competent clinicians would have noticed the lack of anticoagulant, which is a powder at the bottom of the vial. And, competent clinicians should notice the clotting and reject the sample.

However, it wouldn’t be surprising if clotting or the lack of anticoagulant went unnoticed. And, if the blood clotted while testing, a new sample would have been obtained. It would be perfectly reasonable for people convicted of DUI who didn’t provide a second sample to ask for their cases to be reconsidered.

Indeed, the National Association of Criminal Defense Lawyers says that law enforcement agencies who used the faulty test tubes have a duty to notify defendants and their lawyers so that they can ask for reconsiderations.

“The harm is the risk of potentially false convictions, people being convicted on the basis of results that suggest they were above the limit when they were actually not above the limit,” one Houston DUI attorney commented to the Chronicle.

The test tubes that are being recalled are called BD Vacutainer Fluoride Tubes. In Houston, approximately 300 tubes out of a lot of 240,000 were faulty. BD recovered 199 of them, but it’s impossible to say where the other 201 ended up. It’s not yet clear how many recalled test tubes were used in Pennsylvania.

In the meantime, if you have been charged with DUI, discuss this issue with your criminal defense attorney, especially if you believe your blood alcohol test results were unduly high.