Second of three parts
The man who "wrote the book" on DUI prosecutions in Pennsylvania says attorneys should be aware of the need to convert serum blood BAC to whole blood BAC.
According to Max Little, transportation safety resource prosecutor for the Pennsylvania District Attorneys Association (PDAA), "most that I'm aware of do" know the difference between serum and whole blood tests.
"There's case law on the subject," Little said. "The information is out there."
There is also Little's book.
He is the author of "Investigating, Charging, and Litigating DUI Cases: A Manual for Pennsylvania Prosecutors 2013."
Information about the need to convert BAC from serum tests "is in there," he said.
Little provided electronic copies of three pages of the book.
One passage reads:
"Prosecutors must be aware of the various types of blood testing. For example, serum or plasma testing is usually performed in emergency-room situations. When 'whole blood' testing is not performed, a scientifically-acceptable conversion factor must be introduced. It is advisable to give the Defendant the benefit of the doubt and use the factor which yields the lowest 'converted' BAC. Otherwise, the defense can argue some bias on the part of the Commonwealth."
That book is only the latest edition of a DUI manual made available to prosecutors "for a long time," he said. "From that perspective, we've certainly tried to make the information available."
Little also runs "DUI boot camps" for attorneys.
The idea of converting blood alcohol results is at least 20 years old.
"Before I became district attorney in Sullivan County, I was assistant district attorney in Bradford County," Little said. During one of his first cases "we had to introduce the conversion factor. This was in 1994."
Little is familiar with the situation in Warren County. "I did look at what (Warren County District Attorney) Rob (Greene) had come up with as far as a tally of cases affected," he said. "It's an unfortunate situation."
"We've tried to be of assistance," Little said of the association. "We're sympathetic to walking into a situation like that."
He said there are many more defense challenges to DUIs than even 10 years ago.
"When I started prosecuting DUIs, it was almost never challenged if you had a good (BAC) number," Little said. "For the most part, the defense bar really was not looking to attack the labs the way they do now."
"That in itself is a fairly recent phenomenon," he said. "Some of the defense bar have really done their homework, visited labs. All of that is a trend that 10 years ago you didn't see that much."