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Tuesday, July 14, 2015
By Michael Nichols
Categories: Michael J. Nichols
Michigan drunk driving attorney Michael J. Nichols (Mike) Nichols forced historic change in 2011 with a court opinion and order that suppressed a .29 blood alcohol analysis and led the Michigan State Police Lab to calculate uncertainty in measuring blood samples for the presence and amount of certain controlled substances like alcohol.
Nichols says "the lab made strides in order to keep up with modern standards of forensic science BUT the lab still takes shortcuts in order to save time and or money. The biggest problem of an over-worked lab is that a result remains more important than a process." That case was called People v Jabrocki and the opinion was authored by District Judge Peter Wadel in Ludington at the 79th Judicial District Court. It is one of 2 of Nichols' cases cited in the July, 2015 Michigan Bar Journal Article "Breath and Blood Tests in Intoxicated Driving Cases: Why They Currently Fail to Meet Basic Scientific and Legal Safeguards for Admissibility." The other case was a case in which District Judge Thomas Boyd at the 55th District Court in Mason suppressed a blood test for a lack of traceability called People v Carson. Nichols says "the fact that 2 legal scholars who authored this piece could cite only our cases as examples of successful suppression motions in blood alcohol cases is a source of great pride for all of us at the Nichols Law Firm."
Recently, a prosecutor in mid-Michigan was forced to dismiss a case in part because the lab failed to transparently explain in its records why it shorted a "batch run" and stopped reporting analyses after it coincidentally reported the results from the sample of a man represented by Nichols. Nichols says "the lab runs approximately 65 samples per its protocol including controls and calibrators in each 'batch.'" He adds: "the lab provides a 'vial list' that shows the position of each item in a tray, including the unknown sample that has a number corresponding - supposedly - to a client's blood as well as known values that provide a check of the calibration of the gas chromatograph along the linear range of values."
Nichols and a consultant identified a run that contained the NLF client's blood that was supposed to have been run in the Michigan State Police lab's gas chromatograph. However, the list called the "vial list" documented that the run stopped reporting analysis after the client's alleged blood. The document containing all the results showed just a few actual results for other unknowns along with the calibrators. It was far short of the 65 vials that should have been analyzed and reported. Among the missing samples were all the calibration checks showing how the instrument performed when known values were injected into it. Nichols says "according to our expert - the ultimate impact on his opinion of the lab-work in this case is that it was unreliable because they did not document a 'traceable' result.
Traceability is a principal of metrology (the science of measurement) that requires a documented chain of comparisons linking a measurement with a national standard. Traceability is the manner in which the uncertainty declaration of a measurement is determined to be reliable or unreliable.
Nichols says "the prosecutor outright dismissed the case when we sent to him a packet from the expert that pointed out this strange anomaly that showed a lack of traceability and failed to show proper use of control samples to check the instrument's calibration." Nichols says "considering that the client faced a serious likelihood of deportation and other consequences, the dismissal was big. The lack of traceability, coupled with a successful motion to suppress the client's custodial statements in which he claimed to have been the driver of a friend's car in which 4 people were traveling but the officer never saw the driver, forced the prosecutor to issue a "nolle prosse" or "notice of dismissal" - in essence waiving the white flag.
For the lawyers who use modern science to find defense where others find guilt, contact Mike Nichols at the Nichols Law Firm at 517.432.9000 and find out why we are committed to results.