In Kanta v. Dept. of Licensing, the WA Court of Appeals decided an important case regarding blood test evidence preserved in test tube vials. Specifically, it addressed the issue of whether blood draw evidence is admissible even if (1) blood is drawn prior to a test tube vial’s expiration date, and (2) the blood test analysis occurred after the vial’s expiration date.

Some background is necessary. Blood collection tubes used in DWI cases are glass tubes/vials which are partially evacuated of air. These tubes/vials contain a preservative and anticoagulant (blood thinner).  The vacuum of the tube allows for the blood sample to be drawn into the tube. If there was no vacuum, the tube would not be able to draw the blood sample.  Thus, an expiration date is placed on the tube label.

FACTUAL BACKGROUND

Mrs. Kanta was arrested for DUI in July 2021. Shortly after her arrest, a phlebotomist drew a sample of Kanta’s blood which was sent to a laboratory for analysis. The laboratory tested Kanta’s blood for alcohol in May 2022. In September 2022, the lab issued a report stating that Kanta’s blood sample contained 0.18% alcohol. In November 2022, the Department of Licensing (DOL) suspended Kanta’s driving license. Kanta contested the suspension, arguing that because the vial used to store her blood expired in November 2021, the blood was not properly preserved and therefore did not comply with the Washington Administrative Code (WAC). A hearing examiner rejected Kanta’s argument and affirmed the suspension.

Kanta appealed to the superior court. The superior court found that substantial evidence supported the hearing examiner’s conclusion that the blood test complied with the necessary criteria, and was therefore properly admitted. Kanta appeals to the WA Court of Appeals, arguing that the hearing examiner erred in admitting the results of her blood test into evidence because the vials were expired at the time of testing. As such, Kanta argues, the superior court erred in affirming the suspension of her license.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals agreed with the superior court and the DOL.

The Court reasoned that WAC 448-14-020(3) provides that blood samples must be placed in a “a chemically clean dry container consistent with the size of the sample with an inert leak-proof stopper,” and “must be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration.” Furthermore, the code explains that “suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate.”

“Kanta does not take issue with the procedures involving the reporting or analysis of her blood,” said the Court of Appeals. “Rather, she confines her complaint to the manner in which her blood was stored prior to testing because although the tubes had not yet expired at the time her blood was collected and placed inside the tubes, they expired roughly four months after collection and her blood was not tested for another six months after that.”

Here, the DOL presented three exhibits to the hearing examiner: a certificate of compliance for the blood collection tube used, the report from law enforcement, and a credential verification from the Department of Health. The Court of Appeals gave much weight to the significance of the certificate of compliance:

“The certificate of compliance establishes that the tube used in Kanta’s blood sample met the necessary requirements for preservatives and anticoagulants. According to the certificate of compliance, the tube used in Kanta’s blood test contained 18 to 23 milligrams of potassium oxalate and 90 to 115 milligrams of sodium fluorite. The certificate also established that the tubes were certified to be sterile and complied with manufacturing regulations.” ~WA Court of Appeals

Furthermore, the arresting officer’s police report stated that “prior to providing this blood kit to the phlebotomist I checked to make sure that the tubes were in good condition, were not expired, and that the white preservative anticoagulant powder was present in the tubes.”

Next, the Court of Appeals bluntly addressed the issue of whether a person’s blood must be tested prior to the expiration of the test tubes holding the blood:

“Kanta focuses all of her arguments on the admissibility of her blood test. The WAC does not require that the blood in the test tubes be tested prior to the expiration of the tubes. As we note above, once the DOL satisfies its initial burden of producing prima facie evidence establishing that the test complied with the code, the test results are admissible.” ~WA Court of Appeals (emphasis supplied).

My opinion? The Court of Appeals issued a rather narrow, cut-and-dried opinion which was strictly conscripted to the WAC. Obviously, the WAC must be changed to require that blood be tested prior to the expiration of blood vials/tubes. Expired blood test vials can lead to inaccurate results, especially for coagulation testing. This is because expired tubes may have lost their sterility or vacuum, or contain an anticoagulant that is no longer effective. Additionally, if a tube is used past its expiration date, the vacuum may not be able to draw enough blood to fill the tube, which can lead to short-filled tubes that are not suitable for testing.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.