BAC testing kit recall could compromise hundreds of Minnesota DWI convictions

(FOX 9) - Criminal defense attorneys call it a scientific screw-up of epic proportions as one of the world’s largest medical suppliers has recalled some of Minnesota’s blood-alcohol testing kits.

Now, thousands of DWI cases could be thrown out in court as a result.

In a period of nine months, blood was drawn into the potentially faulty vials. Hundreds of them did not have necessary preservatives in them to prevent clotting and fermentation. That means blood tests taken between last August and last week could be inaccurate.

The company, BD, issued the voluntary recall for their blood draw kits after confirming a small lot of the tubes were issued without the preservatives. The company says the problem only affects 300 tubes, and nearly 200 of them have been recovered.

Criminal Defense Attorney Dan Koewler says the quality control issue falls on both the manufacturer and the Minnesota Bureau of Criminal Apprehension.

After blood is placed in those kits, there is no way to tell whether the necessary preservatives are in the vial or not, so those doing the blood draws should’ve been spot-checking the kits as well.

“One of the biggest problems in terms of public safety when it comes to this is that blood tests are typically reserved for the more serious DWIs. Criminal vehicular operation where somebody was injured or criminal vehicular homicide where someone was killed, so exactly the type of case where we absolutely want to trust the blood test is going to be the types of cases where we can’t,” said Koewler, a partner at Ramsey Law Firm.

He also says he knows of people who took these blood tests who have already pleaded guilty or have already had their licenses withdrawn because of results from these kits.

Koewler added that anyone accused or convicted of DWI between last August and last week may want to have someone give their case a second look.

There are also potentially innocent people out there who were wrongfully convicted as a result of these tests.

In a letter the BCA issued last week, they indicated that they purchased 2,000 of BD’s tubes.

The BCA released the following statement Tuesday:

Tubes containing blood evidence submitted by local law enforcement agencies are inspected upon arrival at the BCA. A sample collected in a tube without the powder would appear coagulated and would be easily identifiable as an unacceptable sample. We have received no such tubes.