In the TN trial of police-officer Ronald Killing, the issue of his attempting to destroy evidence after the accident will not be raised before the jury, because another indictment in that matter is pending. Unfortunately for justice, the evidence of which he stands accused of destroying is evidence of possible alcohol use in his police vehicle.

If Killings’ had been a private citizen at the time of the incident, I wonder if he would have been immune from charges of drunk driving?

According to CNN’s In Session commentators, Killings’ blood was tested two hours after the incident, and he was found to be completely alcohol-free. Even so, apparently a witness saw him throw a bottle or two into the grass near the scene, and at least one bottle was recovered.

A forensic pathologist on In Session, Richard Saferstein, said that blood tests can have a small margin of error but never show zero alcohol when a suspect has consumed alcohol within two hours of the test. Apparently the lawyers on CNN thought that was proof-positive Killings had not been drinking.

Of course, I am not a lawyer, and I guess I have a very devious mind: I immediately wondered if it would be possible for one cop to draw another cop’s blood in such a way as to falsify the results, or if it would be possible for one cop to supply blood to substitute for another’s, or if it would be possible for a cop to keep a vial of his alcohol-free blood around for use in an emergency.

It didn’t take much research to convince me that any of these can easily happen.

Results of Blood Tests

An Arizona attorney specializing in DUI defense, Edward Loss, writes in “Blood Test Issues” that actually the collection of blood-alcohol samples is very complicated and subject to error. As I understand his article (and my understanding is probably very imperfect), the following may invalidate a blood test:

• The alcohol or antiseptic used to clean the skin may cause a false positive.
• There are two types of alcohol tests, one of which cannot measure the parts per million of alcohol, only the presence or absence of alcohol. The process used in such a test can artificially increase the percentage of alcohol in the blood by reducing the volume.
• The police use a NIK kit to draw blood for DUI forensics, which collects the blood in a way to avoid the above problems—but the kit can be misused.

The problem, of course, is that police officers are often the ones to draw the suspect’s blood.

Chain of Custody Problems

I wonder: has there ever been a DUI case in which the prosecution questioned whether the blood that was tested was also proven to be the suspect’s blood? In other words, in the Killings case can we be sure the blood was Killings’? If a DNA test proved it was his blood, can we be sure it was drawn the night of the accident?

In the normal course of a DUI arrest, the chain of custody of the blood sample is thoroughly documented. By the time the test results reach court, the only question is how much alcohol was in the suspect’s blood at the time of his arrest. In most trials, it’s inconceivable that the cops would try to substitute alcohol-free blood for alcohol-laden blood (unless the suspect was a politician, I suppose).

But in the Killings case, the cops had every reason to want to scrub the suspect’s blood of alcohol.

Killings and “Phlebo-Cops”

How do we know when a cop’s blood test is properly conducted? If a police department is dishonest, there’s no way to tell. A dishonest cop could obtain a NIK kit and could preserve a vial of alcohol-free blood in the office refrigerator or in a cooler in the trunk of his car right beside his beer bottles. Dishonest cops could even draw a fellow cop’s blood after an incident in place of the suspect.

Sidebar: I’m not sure, but it looks to me as if a “non-government” customer can order products from a forensics supply company, so long as they agree not to export the material outside of this country. If this is so, then even a mystery novelist could obtain a NIK kit and keep a vial of her alcohol-free blood in her kitchen refrigerator. I haven’t tested this hypothesis, but it would be something to consider if I didn’t feel faint when someone draws my  blood. Imagine the plot possibilities. I’m interested, too, in document examination kits; my Ph. D. is in a technique called textual criticism, which aims to analyze and identify historical manuscripts. I also found some wonderful document examination kits, which I might—in fact—try to order.

In the Killings reckless homicide trial, we will never hear testimony about any of these issues. If the prosecution intends to question the blood test, it will have to be during the trial on the destruction of evidence (liquor bottles from the officer’s car).

I’m not particularly hopeful that the truth will ever come out: the prosecutor in the reckless homicide case is having difficulty formulating the simplest questions about the accident. For example, he was unable to figure out how to ask an eye witness whether a police report made at the scene improperly characterized her words:

“Did the officer’s report, which states that you saw the child cross the street, correctly describe what you actually said to him, yes or no?”