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The jagged hump still casts doubt on blood tests (UPDATE)

Attorney Andrew Mishlove of Mishlove & Stuckert LLC, Glendale, is board-certified in DUI defense by the National College for DUI Defense.

Attorney Andrew Mishlove of Mishlove & Stuckert LLC, Glendale, is board-certified in DUI defense by the National College for DUI Defense.

The Wisconsin State Laboratory of Hygiene has issued an official response to my Feb. 11 column on the jagged hump anomaly and cause for concern with the state’s blood alcohol testing.

Though my colleagues and I are grateful for the response, as a public airing of this problem is healthy, after careful consideration we can emphatically say that the jagged hump still casts doubt on blood tests.

The lab argues that unidentified peaks in a chromatogram do not indicate an instrument malfunction. In the case of the jagged hump, however, we are not dealing with the occasional appearance of an unidentified peak. It is not a peak at all; it is a jagged hump that does not resemble a peak.

Part of this large anomaly appears on the graph to the left of the place where any substance would ordinarily appear, also indicating a potential malfunction (see images below).

The lab argues: “the unidentified peaks have nothing whatsoever to do with the ethanol determination and are due to other substances sometimes present in biological samples such as blood.”

The lab’s argument that the jagged humps are actually substances in a person’s blood makes no sense, as these humps are not appearing in blood tests from the Wisconsin State Crime Laboratory or other laboratories throughout the United States.

It also is refuted by the lab’s own control tests. The lab uses controls of known samples as a quality control precaution. These known samples are used by the lab over a period of time.

Figure 1 is a set of chromatograms, made on July 13, 2013, on instrument ALC2, of a known control sample called Blood 263. This control has been tested many times by the lab, and is used as a control precisely because its contents are, in fact, known. Nevertheless, Figure 1 shows a jagged hump in the analysis of Blood 263, indicating a failure in the measurement.

Figure 2 is a normal set of chromatograms of Blood 263, made July 24, 2013, on the same instrument. That is, the same substance, Blood 263, was tested on the same instrument, ALC2, two weeks later and showed no jagged hump.

The lab’s explanation fails to account for these facts.

It may or may not be true that the lab’s blood ethanol results are precise, accurate and reliable. Unless there is a proper root-cause analysis of the problem, and corrective action taken, no one can know for sure.

Criminal prosecutions should not be based on this type of uncertain evidence.

While the lab does release records upon request, they never have affirmatively disclosed the appearance of a jagged hump to any person whose test may be affected. Nor have they released any information on the investigation done by the manufacturer of the equipment, Perkin Elmer.

I am joined in this response by my colleagues and fellow members of an ad hoc committee for the purpose of investigating this and other issues related to blood alcohol testing. The committee consists of: myself as chairman; Lauren Stuckert and Emily Jane Bell of Mishlove & Stuckert LLC; Aaron Nelson of Doar, Drill and Skow SC; Todd Schroeder of Devanie, Belzer and Schroeder SC; Jeffrey Oswald of Hammet, Bellin and Oswald LLC; and Michael Cohen of Cohen Law Offices LLC.

(Click to enlarge)

Abnormal chromatograms of a laboratory control sample: Blood 263, made on July 13, 2013, on instrument ALC2. The jagged hump is apparent on both the A and B column. (Click to enlarge)

(Click to enlarge)

Normal chromatograms of the laboratory control substance, Blood 263, made on the same instrument, on July 24, 2013. This is the same substance tested in Figure 1. (Click to enlarge)

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