How it happened
When Warren County District Attorney Rob Greene heard an expert lab technician testify that blood alcohol tests at Warren General Hospital require a calculation to match up with legal requirements, he knew he had a problem.
One of the first things he did was talk to officials at Warren General to see how long the problem had been going on.
They provided a copy of an Oct. 9, 2008, letter they said was sent to Ross McKeirnan, who was district attorney at that time.
Greene said he had no way to know whether or not McKeirnan received the letter. “I have no verification this came to Ross,” Greene said. “I’m assuming he didn’t know.”
If he did know about the necessary calculation, McKeirnan would have had a responsibility to “inform the defense counsel,” Greene said.
The copy of the letter bears the names of Dr. Michael Lapinski, medical director of laboratory services, and Eric Nocek, laboratory quality assurance manager and clinical chemist, but not signatures. It is addressed to McKeirnan.
According to the letter, the hospital laboratory switched from equipment that determined blood alcohol from whole blood (including red and white blood cells and other solids) to an instrument that used plasma (the liquid portion of blood only). “The main factor was reliability of the vendor and instrument,” according to the letter.
The letter does not indicate that the change requires a calculation to determine an equivalent of whole blood BAC. It did invite McKeirnan to call if he had any questions.
The whole blood test gives a lower BAC result – and is generally accepted in court. The plasma or serum test yields a higher result and must be converted.
“Most experts agree that the range is 1.10 to 1.35,” Greene said. “Most experts agree that the best number to use is 1.16.”
“1.10 is favorable to the prosecution,” Greene said. “1.35 is favorable to the defendant.”
Greene plans to eliminate any additional reasonable doubt that could be introduced to the cases by using the number at the end of the scale that is best for the defense. “When we transform any of these we’re going to use 1.35,” he said.
Because the multiplier was not applied to hundreds of cases since 2008, Greene said it is likely many DUI charges will have to be changed, or dropped altogether.
Greene is not pointing fingers at anyone in particular.
“The buck stops with the district attorney,” he said. “The district attorney is ultimately responsible for prosecution in any case.”