The Downfall of the State of Colorado's DUI Blood Testing Laboratory

Posted on January 14, 2018 in Uncategorized

There were signs that the Colorado Department of Health's Laboratory Services Division had problems long before the bottom fell out in June. Many persistent Colorado DUI attorneys challenged the former supervisor of the state's toxicology laboratory over a long period of time. (Chet Hardin, Blood and circus – Why many DUI lawyers don't trust the state's drug lab,
Colorado Springs Independent, Nov. 7, 2012,). The former supervisor testified about her training and education many times in court from 2005 to the end of her tenure in May 2013. Transcripts of her testimony over the years reveal that her statements under oath about her degrees conflicted from court case to court case. Id. However, she remained in her position and supervised the testing of tens of thousands of blood samples.

There were more warning signs in 2010, when the former supervisor attempted to obtain accreditation for the state's laboratory from the American Board of Forensic Toxicology (ABFT). After an inspection, the ABFT advised her that accreditation would not be granted because of several internal problems with the supervision and procedures in existence. In its report, the ABFT warned of the workload and how it put a strain on personnel. It cited an increase in samples and a decrease in qualified employees as well as inferior standard operating procedures (SOP).

In 2012, a new laboratory analyst was let go and roughly 1,700 blood samples were retested. Defense attorneys were sent the retest results after a quick internal audit occurred in the laboratory, as well as after the employee in question were discharged. The party line from state officials was that this was an isolated incident with a new employee who was released from duty after the problem was discovered. Soon after the story hit the media, the former employee was criticized by the supervisor for his alleged shortcomings, and the laboratory services division told the media upon questioning that "We could not verify the quality of the work he was doing in the lab." (Samples From DUI Cases Being Re-Tested, CBS4 News, April 20, 2012).

When the former employee later complained, the spin by the state was that he was disgruntled over being terminated. An affidavit by the former supervisor asserted that the issues were due to the former employee's inability to "properly operate a standard piece of equipment," and his failure to "follow the lab's blood testing [standard operating procedure]." Id. She went on to maintain in the affidavit that additional procedures were instituted to prevent this in the future.[1] The spin on the story from the government's angle was that it was an isolated incident, and that the measures were already completed to fix the isolated issue.

Early in 2013, another former employee of the CDPHE complained to a prosecutor about the quality of supervision and leadership at the laboratory under this former supervisor. This complaint was
one factor that eventually led to an internal investigation at the laboratory. On March 18, 2013, this investigation was completed and found that Burbach was biased in favor of the prosecution and against criminal defendants. In addition, the findings in the report concluded that:

  • It was more likely than not that employees perceived their training in blood alcohol analysis as inadequate. Related to this is the finding that therewere not sufficient protocols in place where employees were trained consistently;
  • The laboratory analysts who are called by prosecutors to testify as experts in court do not receive the training to provide such testimony;
  • The possibility of samples being tampered with was present as there were no locks on the refrigerators where they were stored before testing while a case was pending;
  • The supervisor used employees of the laboratory to assist her with her thesispaper for her master's degree during the course of their employment;
  • Employees felt that the toxicology laboratory was not sufficiently staffed to handle the workload.

The supervisor conveniently retired in late May, and approximately a week after and late in the day on Friday, June 7, the Colorado Attorney General's Office sent the Colorado Criminal Defense Bar,
the Colorado Public Defender's Office, and all District Attorney Offices the results of this workplace investigation, almost three months after its completion. The results and findings of the investigation called into question the integrity of the environment that tested thousands of blood samples that were used to convict persons accused of driving under the influence and other criminal offenses, such as felony vehicular homicide and assault.

Simultaneous with the release of this report to the criminal defense bar, the CDPHE pushed out a long and well-prepared statement to the media that asserted, "staff training is being revised and an interim manager has been assigned for toxicology lab operations. Colorado Department of Public Health and Environment, June 7: Investigation leads to changes at the state toxicology lab (press release). Ironically the supervisor that made a scapegoat of a young employee a year earlier became the scapegoat herself.

To the best of this authors' knowledge, no prosecutor in any court in Colorado ever provided a copy of this report to any defendant or defense attorney prior to the June 7 letter and attached report from the Attorney General's Office. In the period of time between the completion of the report and its disclosure, many steps were taken internally at CDPHE to reassign the supervisor and to shield her from court subpoenas and be subject to cross examination.

Immediately after the June 7 disclosure, the Colorado Criminal Defense Bar (CCDB) united and held a public press conference on June 10 to address the findings in the report and the delay in disclosure. CDPHE President Sean McDermott and DUI attorney Jay Tiftickjian spoke on the steps of the State's Supreme Court about the department's internal problems and the delay in its disclosure to criminal defense attorneys and those accused of DUI across the State. The story immediately went national and within hours appeared in the New York Times. Jack Healy, Colorado State Lab Accused of Mishandling Evidence, New York Times, Jun. 10, 2013.

Instantly after the criminal defense bar's press conference, the former supervisor, as well as the Colorado District Attorney's Counsel and some elected district attorneys, reacted with statements and press releases to the media. The CDPHE offered that the problems were isolated to a supervisor in one division and that the problem had been taken care of. Colorado District Attorney's Council, Press Release, Jun. 10, 2013. In response to inquiries from the media after the CCDB press conference, Boulder County District Attorney Stan Garnett told the local media that, "There have been some problems with [CDPHE] for some months now, and this is just the latest " Mitchell Byars, Boulder DA had concerns about state toxicology lab prior to new report, Daily Camera, Jun. 10, 2013.

Within weeks, Colorado's governor suspended the CDPHE laboratory that handles blood-alcohol and drug testing until notice. Kelly Sommariva, State lab to suspend testing after audit revealed ‘personnel issue', 9news.com, Jun. 28, 2013.

From the top down, the CDPHE's systemic problems are now being spun as baggage shoved out the door along with former employees, supervisors, and directors.

About the author: Colorado DUI Lawyer Jay Tiftickjian and his firm have litigated thousands of cases in Colorado. For more information, visit www.CriminalLawDenver.com or his blog at www.MyDenverDUILawyer.com. You can also follow Jay on Twitter @DUI5280.

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