Petition for Writ of Certiorari — Bruch v. Florida (No. 07-358)

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Supreme Court, U.S.

pe IL gus

No.07- 07-35 8SEP13 2007

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

RICHARD BRUCH,

Petitioner,

STATE OF FLORIDA,

_ Respondent.

On Petition for a Writ of Certiorari to the

Fourth District Court of Appeal

in the State of Florida

PETITION FOR A WRIT OF CERTIORARI

MICHAEL SALNICK *

One Clearlake Centre, Ste 1203

250 S. Australian Avenue

West Palm Beach, FL 33401

(561) 471-1000

* Counsel of Record Attorney for Petitioner

ESATO RS. eg RUNS REY RETIRED tS ROPE E LAD LE LLIB CEE SEES

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether the statutory jury presumption of impairment

denied the petitioner fundamental due process when it in-

volved the results of an expired alcohol blood testing kit and

the prosecutor shifted the burden of proof to the defendant

by arguing during closing that the jury could not consider

the expired kit’s product insert indicating the results are not

reliable if the kit is expired because the defense failed to

introduce it into evidence, notwithstanding the fact that Florida

Law prohibited its introduction?

(1)

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .-.-.....0.c.<ccoscesesssccocosessesrevers i

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NERD ee cell eNO OT ORO RaL EAET TEE

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......00ceccessssercscossososeesiesoes 2

STATEMENT OF THE CASE ..0.....cccssesccssessesssessecseees 3

REASONS FOR GRANTING THE WRIT............0--+--: 5

I catcerceacatentianenicnieiecraitcecticaaciass 12

APPENDIX A—Opinion from Lower Court................ la

APPENDIX B—Order denying motion for rehearing .. 6a

APPENDIX C—Order from the Florida Supreme

CTE sinssiinsiniasicateicansacehnieccibigall cisninisielicbeniinsdiibinackoinia 7a

APPENDIX D—Portions of the trial transcript .......... 9a

APPENDIX E—Defense Motion to Suppress............... 19a

APPENDIX F—Order denying motion to suppress...... 28a

APPENDIX G—BD Vacutainer Evacuated Blood

Collection System Product Insert (Learned Treatise). 3la

(iii)

TABLE OF AUTHORITIES

CASES Page

Ealy v. State, 915 So.2d 1288 (Fla. 2d DCA

I inniiiicalesiititilinlsibsalias tiie SERN NTT OIE ER 11

Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA

TESTI SRI Cpe eo De ae Roe vO oO 7

Kirkpatrick v. Wolford, 704 So.2d 708 (Fla. 5th

I cata 5

Linn v. Folsum, 946 So.2d 1032 (Fla. 20C6).......... 3

State v. Bender, 382 So.2d 697 (Fla. 1980)........... 8,9, 10

State v. Miles, 775 So.2d 950 (Fla. 2000).............. 6, 8

State v. Sandt, 774 So.2d 692 (Fla. 2000) ............. 6

Shelton v. State, 654 So.2d 1295 (Fla. 4th DCA

8, SRE ROE ete a Re ON RIE EOD 1]

Townsend v. State, 774 So.2d 693 (Fla. 2000)...... 6

STATUTES AND RULES

Federal

Be i siikiciesaitnistacicsenchicrivsediccnentsetessons l

14th Amendment to the United States Con-

eas 2

State ‘

ee |.) ae a By eS

FE ls FR, SOD ovecscncessovcesercscnccssovessics 2

Pe, Fy EE icenitecresnccisnrsvnsesenseveves 2

BD S16, FO56, Pid; Bee: CIS) vnccncecsecsnicccceesesetiorenies 2

OTHER

Florida Dep’t of Law Enforcement regulations...8, 10, /'

Florida Administrative Code ...............cccceeceeeeeeees 8, 10, 11

BD Vacutainer Evacuated Blood Collection Sys-

tem Product Insert printed by blood kit manu- |

factuer Becton Dickinson as a learned treatise.. 5

IN THE

Supreme Court of the Anited States

No. 07-

RICHARD BRUCH,

Petitioner,

STATE OF FLORIDA,

Respondent.

On Petition for a Writ of Certiorari to the

Fourth District Court of Appeal

in the State of Florida

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINION BELOW

The.April 25, 2007 opinion of the Fourth District Court of

Appeal for the State of Florida appears at Appendix A to the

petition and has been designated for publication but is not

yet reported. A timely petition for rehearing was thereafter

denied on May 18, 2007, and a copy of the order denying

rehearing appears at Appendix B. Petitioner filed a timely

petition for writ of certiorari in the Supreme Court of Florida,

and that petition was denied on September 5, 2007. The

jurisdiction of this Court is invoked under 28 U.S.C: §1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Con-

stitution provides, in pertinent part, that: “No State shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Under Florida’s Implied Consent Law, certain evidence of

Driving Under the Influence of an Unlawful Blood Alco-

hol Level (DUBAL), creates a presumption that the driver

was impaired by alcohol. § 316.1934(2)(c), Fla. Stat. (2005)

(results of any test administered in compliance with

§§ 316.1932 and 316.1933 creates the presumption that the

driver was impaired). The statute provides that if the driver’s

blood alcohol level is 0.08 or higher, then that fact is prima

facie evidence that the person is guilty of driving with an un-

lawful blood alcohol level. § 316.1934(c), Fla. Stat. (2005).

To give rise to the presumption of impairment, the tests

must substantially comply with regulations promulgated

by the Florida Department of Law Enforcement (FDLE).

§ 316.1933(2)(b), Fla. Stat. (2005). FDLE has not prom-

ulgated any regulations regarding the validity of the blood

alcohol testing kit. If the test is not in conformance with the

FDLE rules, then the prosecution is not entitled to the

statutory presumption, but it may rely on traditional scientific

predicates to establish a foundation for the introduction of

otherwise reliable test results.

In this particular case, the blood alcohol testing kit was

expired, and therefore the reliability of the blood alcohol

results was called into question, and when the defense im-

peached the prosecution’s expert witnesses with the product

insert from the blood testing kit as a learned treatise, pursuant

to section 90.706, Florida Statutes (2005)(Florida Evidence

Code), the prosecution argued in closing the jury could not

consider the treatise information because the defense did not

introduce same into evidence. The Florida Evidence Code

allows literature that the expert or trial court recognizes as

authoritative to be used in cross-examination, but cannot be

introduced as substantive evidence. See § 90.706, Fla. Stat.

(2005); Linn v. Folsum, 946 So.2d 1032, 1038 (Fla. 2006)

(citing Federal Rule of Evidence 703).

STATEMENT OF THE CASE

This case originated in the Circuit Court for the Fifteenth

Judicial Circuit in and for Palm Beach County, Florida.

Petitioner Richard Bruch was arrested and charged by way of

information with DUI manslaughter and Driving under the

Influence Causing Injury to Person or Property. Pretrial, the

defense moved to suppress the blood alcohol results because

the results were scientifically unreliable as a result of’ the

blood alcohol testing kit being expired, but the trial court.

denied that motion (Appendices D & E). At trial, the jury

found Mr. Bruch guilty of Count I, DUI Mans!aughter, and

guilty of, Count II, Driving under the Influence Causing

Injury to Person or Property. The trial court imposed an

eleven (11) year prison sentence, as to Count I and concurrent

with one year prison as to Count II. The petitioner is not

incarcerated; he was released on an agreed-upon appellate

bond pending the outcome of his appeals.

The DUI charge stemmed from a car accident between the

petitioner and the car driven by Christopher Dean. Mr. Dean.

was stopped at a red light at the intersection of Donald Ross

Road and Alternate AlA in Palm Beach County, Florida.

Mrs. Dean was a front seat passenger, and the child, Drew

Dean, was seated in the back seat. While the Dean vehicle

was stopped at the intersection, Mr. Bruch crashed into the

back of the Dean family vehicle, and sadly, Mrs. Dean was

pronounced dead at the scene of the accident. Mr. Bruch was

placed under arrest for DU] manslaughter at the scene of the

crash after a law ~-forcement officer obtained information

from petitioner by .< ing him questions during the officer’s

accident investigation. |

At trial, a civilian witness, Scott Hofmeister, testified that

Mr. Bruch ran the red light, and he then engaged in a brief

conversation with Mr. Bruch where Mr. Bruch asked Mr.

Hofmeister what had happened. Mr. Hofmeister noted that he

did not smell any alcohol on the petitioner, but that Mr. Bruch

appeared disoriented after the accident. The law enforcement

officer, Officer Amy Walling Fox of the Jupiter, Florida,

Police Department testified that she placed Mr. Bruch in the

back of her patrol car both for his own safety and so that he

did not leave the scene. Officer Fox testified she decided to

have the petitioner’s blood drawn, and she used the blood kit

that had been placed in the trunk of her patrol car and that the

kit was expired. |

The senior forensic scientist with the Palm Beach County

Sheriff's Office, Susan Lewis, analyzed petitioner’s blood

and determined that his blood measured 0.15 per weight per

volume weight of alcohol concentration. Analyst Lewis tes-

tified that she would not recommend usage of a blood kit

beyond the expiration date because the results might be

erroneous. The second prosecution expert witness, Dr. Jessie

Bidanset, the forensic toxicologist for the Palm Beach County

Sheriff's Office, testified that it was recommended by the

manufacturer of the blood alcohol testing kit that the kit not

be used after the expiration date.

Dr. Bidanset testified that the manufacturer can no longer

guarantee the reliability of the product beyond the expiration

date. Dr. Bidanset testified that, in his expert opinion, he

could not rely on results from an expired blood kit because

the blood sample cannot be considered a good forensic

sample. During the cross-examinations of both prosecution

witnesses, Susan Lewis and Dr. Bidanset, defense counsel

relied on a BD Vacutainer Evacuated Blood Collection Sys-

tem Product Insert which was printed by Becton Dickinson

(“BD”) as a learned treatise (BD is the manufacturer of the kit

in question). The trial court found that the product insert

printed by BD qualified under the Florida Evidence Code,

section 90.706, Florida Statutes (2005), as a learned treatise

in order to elicit testimony regarding the expiration date and

kit. See §90.706, Fla. Stat. (2005); Kirkpatrick v. Wolford,

704 So. 2d 708 (Fla. Sth DCA 1998).

However, the prosecutor in closing argument, told the

jury that they must disregard the testimony regarding the

product insert because the defense failed to introduce the

actual product insert into evidence. The prosecutor improp-

erly shifted the burden of proof to the defendant knowing

that, under Florida law, the actual treatise cannot be intro-

duced into evidence. Despite the fact that the test results

were unreliable and the improper comment from the pros-

ecutor, the jury was still instructed on the statutory presump-

tion on petitioner’s blood alcohol measurement was prima

facie evidence of his guilt of the DUI charge.

REASONS FOR GRANTING THE PETITION

The petition should be granted because it is a denial of due

process and thus unconstitutional for Florida law to allow the

application of a statutory jury presumption of DUBAL

(driving under the influence of an unlawful blood alcohol

level) when it involves the use of an expired alcohol blood

testing kit (with no FDLE regulations to ensure its reliability)

_and the prosecutor improperly shifts the burden of proof to

the defendant during closing when in arguing that the jury

could not consider the learned treatise (which stated an

expired blood kits results are unreliable) because it was not

in evidence.

The appellate court, the Fourth District Court of Appeal for

the State of Florida, erred in holding that there was no

challenge to the blood alcohol evidence as not being in

compliance with the FDLE regulations where there are no

FDLE regulations with involve the use of an expired kit.

The defense moved pretrial to suppress the blood test results

as being unreliable and therefore did dispute the results. The |

Fourth District Court of Appeal also departed from the essen-

tial requirements of due process in holding that the blood

alcohol test results were shown to be otherwise scientifically

reliable by the prosecution where there was no testimony at

all to support that the results from the expired blood kit used

or the results from any expired blood alcohol test kit would

be scientifically reliable. There was no evidence in the record

' or transcript below to support the appellate court’s holding

that the failure of FDLE to promulgate a regulation requiring

blood alcohol test kits be used before the expiration date was

not a violation of due process where the evidence supported

that the blood alcohol test was nonetheless scientifically

reliable where both of the prosecution’s expert witnesses

testified that an expired kit could lead to unreliable blood

alcohol results.

In order for the results from blood alcohol tests that are not

administered in compliance with the Florida Implied Consent

Law to be admissible, the prosecution must demonstrate that

the test results are reliable and the results have some rele-

vance to the theory of prosecution. See State v. Miles, 775

So.2d 950 (Fla. 2000); Townsend v. State, 774 So.2d 693

(Fla. 2000); State v. Sandt, 774 So.2d 692 (Fla. 2000). More

importantly, the prosecution is not entitled to the statutory

presumptions when it relies on the traditional scientific predi-

cate to establish a foundation for the introduction of the test

results. /d.

Additionally, the Fifth Amendment requires the necessity

of advising a defendant or suspect of his Miranda rights

before taking a blood sample and the possible application of

the accident report privilege. See §316.066(4), Fla. Stat.

(2005) (statements relating to investigation made by a person

involved in a crash to the investigating officer are privileged).

It is well settled that section 90.706 does not allow state-

ments in a learned treatise to be used as substantive evidence

since the treatise is hearsay if offered as substantive evidence.

See Green v. Goldberg 630 So.2d 606, (Fla. 4th DCA 1993)

(authoritative publications may only be used during cross

examination of an expert). In the present case, cross exam-

ination of the expert witness for the prosecution was not only

essential, but went to the core of the defense, i.e., that the

petitioner was not UBAL, because there was no valid test

results of his blood alcohol.

Despite the Florida Evidence Code’s prohibition that a

learned treatise is not permitted into evidence, during closing

argument, the prosecution indicated that the jury could not

consider the learned treatise used by the defense because it

was not admitted into evidence by the petitioner. Not only

did the prosecutor imply that petitioner had something to

hide, the prosecution impermissibly shifted the burden of

proof by its prejudicial comment regarding the failure of the

defense to move the treatise into evidence when the pros-

ecutor was well aware that the Florida rules of evidence

prohibited the treatise from being introduced as substantive

evidence. ;

A critical issue in petitioner’s defense was the fact that the

blood kit was expired. Because the blood kit was expired, the

result from testing the blood collected from the kit was unreli-

able, and thus, inadmissible under Florida law. See Chapter

316, Florida Statutes. The reliability and thus the admis-

sibility of that blood kit’s test results were critical to the

_ defense. Officer Fox indicated she would not have used an

expired blood kit had she known of its expiration. The trial

court allowed the use of the product insert as a learned

treatise, with the prosecution and the defense both aware that

the “learned treatise” could not be admitted -as substantive

evidence. :

The prosecution’s experts testified that Becton Dickinson,

the blood alcohol test kit manufacturer, in its literature

recommended against using the blood kit if expired. The

state witness also testified that the manufacturer agreed its

intent was not to use a blood alcohol testing kit after the

expiration date because the use of an expired blood kit

undermines the forensic reliability of the sample. Since the

petitioner did not testify in this case nor present any other

witness on his behalf, the prosecution’s comment regarding

his failure to introduce the learned treatise was clearly meant

to call attention to the fact that petitioner had failed to meet

some burden of proof. It was undisputed at trial that the

manufacturer of the blood alcohol test kit cannot guarantee

the results of an expired blood alcohol testing kit. As such,

the test results from the expired kit were are unreliable, and

the admission of the test results violated petitioner’s due

process rights and his right to a fair trial.

In State v. Miles, 775 So.2d 950 (Fla. 2000), the Florida

Supreme Court held that the administrative rules concerning

the collection, storage, transportation and testing of blood

samples were inadequate and did not comply with the core

policies of the Implied Consent statute as required in the

previous case of State v. Bender, 382 So.2d 697 (Fla. 1980).

In response to Miles, the Florida Department of Law Enforce-

ment (FDLE) amended its rule regarding the labeling and

collection of blood samples. The rule currently states:

“Florida Administrative Code Rule 11d-8.012 — Blood

Samples — Labeling and Collection.

(1) Before collecting a sample of blood, the skin

puncture area must be cleaned with an antiseptic that

does not contain alcohol.

(2) Blood samples must be collected in a glass evac-

uation tube that contains a preservative such as

sodium fluoride and an anticoagulant such as potas-

sium oxalate or EDTA (ethytenediaminetereaacetic-

acid). Compliance with this section can be estab-

lished by the stopper or label on the collection tube,

documentation from the manufacturer or distributor,

or other evidence.

Immediately after collection, the tube must be in-

verted several times to mix the blood with the pre-

servative and anticoagulant.

(3) Blood collection tubes must be labeled with the

following information: name of person tested, date

and time sample was collected, and initials of the

person who collected the sample..

(4) Blood samples need not be refrigerated if sub-

mitted for analysis within seven (7) days of collection,

or during transportation, examination or analysis.

Blood samples must be otherwise refrigerated, except

that refrigeration is not required subsequent to the

initial analysis.

(5) Blood samples must be hand-delivered or mailed

for initial analysis within thirty days of collection, and

must be initially analyzed within sixty days of receipt

by the facility conducting the analysis. Blood samples

which are not hand-delivered must be sent by priority

mail, overnight delivery service, or other equivalent

delivery service.

(6) Notwithstanding any requirements in Chapter

11D-8, F.A.C., any blood analysis results obtained, if

proved to be reliable, shall be acceptable as valid

blood alcohol level.

(emphasis on subsection 6 provided).

In Bender, 382 So.2d 697 (Fla. 1980), the Florida Supreme

Court reasoned that incorporation of the manufacturers’ pro-

cedures and methods were unnecessary when the rules were

in fact in accordance with the manufacturer’s procedures. In

contrast to Bender, Rule 11D-8.012 neither incorporates the

manufacturers’ procedures .and methods, nor are they in

accordance with them. Manufacturers of blood kits, such as

the one used in the instant cause, have established expiration

dates for their blood kits and prohibit use of the kit after it has

expired. As such, 1 1D-8.012’s failure to incorporate this pro-

cedure/method, or be in accordance w.th it, renders the rule

‘inadequate. This failure to require compliance with an

expiration date violates the core policies of the Implied Con-

sent statute as stated in State v. Bender, 382 So.2d 697 (Fla.

1980). As such, the only way the admission of the blood tests

would have been proper would be if the prosecution

otherwise demonstrated that the results were nonetheless

scientifically reliable, and even so, under Florida law, the

prosecution would not have been entitled to the statutory jury

instruction presumptions of impairment.

In this case, Officer Fox testified that had she known the

blood kit was expired, she would not have used it; addi-

tionally, she testified that as a result of learning that the blood

kit in the instant case had expired, her police department

sought out all remaining kits and discarded all of the expired

kits to prevent their use. Proffered testimony by prosecution

witness Lewis indicated that she would not recommend usage

of a blood kit beyond the expiration date because the results

might be erroneous. The FDLE has already established that

compliance with expiration dates are required to assure

accuracy in alcohol testing; thus, compliance with expiration

dates are part of the core policies of the Implied Consent

Statute. ;

For example, Florida Administrative Code ruie 1 1D-8.0035

establishes the approval method for alcohol reference solu-

tions. Within said rule, the FDLE requires that manufacturers

of alcohol reference solutions “must have performed and

documented tests and demonstrate that the alcohol reference

solutions are reliable for at least two years from the date of

manufacture.” Fla. Admin. Code Rule 11D-8.0035(3). As

such, the FDLE established an expiration date of alcohol ref-

erence solutions and prohibited their use after the expiration

date. Thus, compliance with an expiration date assures the

accuracy of testing, while violation of the expiration date

would raise legitimate questions of the accuracy of any test,

thereby violating the core policies of Florida law as set forth

in the Implied Consent Statute.

It was undisputed that there was a real danger of inaccurate

results due to the expired kit. Defense counsel was able

to elicit this.testimony on cross examination, primarily by

impeaching the two prosecution expert witnesses with the

treatise from the manufacturer, yet the prosecutor was able

over a timely motion for mistrial to instruct the jury to dis-

regard that information because the defense failed to intro-

‘ duce that same information into evidence while being aware

that section 90.706, Florida Statutes (2005) does not allow

a learned treatise to be admitted as substantive evidence.

Noteworthy in this particular case was that the appellate

judge who wrote the opinion commented at Oral Argument

on the specific prosecutor who made this statement in her

closing as a prosecutor whose comments are often the source

of prosecutorial error. Cf Shelton v. State, 654 So. 2d 1295

(Fla. 4th DCA 1995) (comment made in closing argument of

the prosecutor that there was no evidence that defendant did

not make drug sale was improper as misleading the jury on

the burden of proof). Comments by a prosecutor that may

constitute improper shifting of the burden of proof. have one

thing in common—the prosecutor’s invitation to convict the

defendant for a specific reason other than the state’s proof of

the elements of the crime beyond a reasonable doubt. See

Ealy v. State, 915 So. 2d 1288, 1292 (Fla. 2d DCA 2005)

(prosecutor’s repeated implication during closing argument

that the defendant had an obligation to refute fingerprint

evidence impermissibly shifted the burden of proof to the

defendant).

By telling the jury during closing that the defense was

relying on material not placed into evidence, the prosecutor

implied that the defense was withholding evidence. This

comment impermissibly shifted the burden of proof to the

petitioner and, considering the expired blood alcohol testing

kit in conjunction with the statutory presumption of impair-

ment, it cannot be labeled as harmless.

CONCLUSION

Petitioner Richard Bruch was denied a due process and a

fair trial where an expired blood alcoho] test kit was used in

conjunction with a jury instruction presumption that his blood

alcohol result demonstrates that he was guilty of DUI

(DUBAL) and an improper prosecutorial comment instruct-

ing the jury not to consider evidence used to impeach the .

prosecution witnesses regarding the reliability of the blood

alcohol test results.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MICHAEL SALNICK * .

One Clearlake Centre, Ste 1203

250 S. Australian Avenue

West Palm Beach, FL 33401

(561) 471-1000

* Counsel of Record Attorney for Petitioner

APPENDIX

APPENDIX A

DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA FOURTH DISTRICT

January Term 2007

No. 4D05-1496

RICHARD BRUCH,

Appellant,

STATE OF FLORIDA,

Appellee.

April 25, 2007

FARMER, J.

Arriving at the scene of a fatal automobile accident, a

police officer saw indications that the driver may have been

under the influence of alcohol when the accident occurred.

Also, inside the driver’s vehicle was a cooler with four bottles

of beer and an open bottle of bourbon whiskey. She retrieved

a blood-alcohol testing kit from her patrol car—placed there

barely a month earlier—and proceeded to have it used to

draw blood from the driver, which was later tested. The

results showed an illegal blood alcohol level.' The driver was

' See § 316.193(1)(a) and (b), Fla. Stat. (2006) (“A person is guilty of

the offense of driving under the influence . . . if the person is driving ... a

vehicle within this state and (a) the person is under the influence of

alcoholic beverages . . . when affected to the extent that the person's

normal faculties are impaired; [or] (b) the person has a blood-alcohol! level

of 0.08 or more grams of alcohol per 100 milliliters of blood. . .”). In this

case, the test results showed a blood alcohol level of 0.15 grams. De-

charged with DUI manslaughter and for causing injury.

During pretrial discovery it became apparent that the kit was

used by the officer 28 days after the expiration date placed on

its label by its manufacturer. Driver was convicted and

appeals.

The principal contention on appeal is that the test results

for a kit used after the lapse of the expiration date on the label

should be presumed unreliable. In the evidentiary hearing on

defendant’s motion to suppress the test results, the State ad-

duced this evidence. Dr. Jesse Bidanset is a forensic toxi-

cologist. He has specialized knowledge of blood alcohol

testing procedures and is familiar with the kit used in this

case. The blood test kit contains a glass evacuation tube into

which the sample is drawn (“vacutainer”). The vacutainer

holds a sealed vacuum. Each vacutainer also contains a pre-

servative and an anticoagulant. The vacuum assures a specific

volume of blood draw to mix with the specific amount of

chemicals already placed therein.

Before the kit is used, it is possible for the vacutainer’s

interior vacuum to deteriorate, which could result in a’smaller

volume of blood being drawn. A normal sample volume is

9-1.0mm. Manufacturers of these kits place expiration dates

on them as part of their warranties concerning the sufficiency

of the vacuum to draw the correct amount of blood for a

proper sample. The expiration date does not. relate to the

preservation of the blood sample or affect its integrity once

drawn and closed. s

In this case, the vacutainer-used by the officer had a normal

vacuum. A normal size blood sample was drawn. The anti-

coagulant worked as indicated, the sample revealing some

fendant was prosecuted both for driving while impaired by alcohol and,

alternatively, for driving with an unlawful blood alcohol level (DUBAL).

The verdict form is general; the jury was not asked to differentiate be-

tween impairment and DUBAL.

3a --

clots. Also the blood-alcohol level test result matched the

result of the breath-alcohol test.

Other witnesses testified. The technician who performed

the analysis on the kit testified she noted the expiration date

and the fact that it was used after the date of expiration. She

would not recommend using kits after their expiration date.

The technician who administered the test said that he too

would prefer using kits before their expiration dates. Defen-

dant adduced no evidence calling into question the reliability

of the specific test result in this case. Based on this testimony,

the trial judge denied the motion to suppress and permitted

the blood-alcohol test results to be admitted as evidence.

Under Florida’s Implied Consent Law, certain evidence of

DUBAL creates a presumption that the driver was impaired.

§ 316.1934(2)(c), Fla. Stat. (2006) (results of any test admin-

istered in compliance with §§ 316.1932 and 316.1933 give

rise to the presumption that driver was impaired). To give rise:

‘to the presumption of impairment, the tests must comply with

regulations promulgated by the Florida Department of Law

Enforcement. § 316.1933(2)(b), Fla. Stat. (2006). The blood-

alcohol evidence admitted in this case complied with section

316.1933(2)(b).

The Supreme Court decisions on the admission of blood-

alcohol test results in DUI prosecutions have evolved over the

last decade. The backdrop for these evolving cases has been

the holding in 1980 that the admission of any evidence of

alcohol content generally must comport with essential due

process. State v. Bender, 382 So.2d 697 (Fla. 1980). Bender

specified that under the common law, evidence of blood

alcohol levels in a DUI prosecution will comply with due

process when-the evidence shows that-(1) the testing proce-

dure is reliable, (2) the test was performed by someone

qualified to do so on equipment proper for that purpose, and ©

(3) expert testimony explains the science behind the test and

the outcome. 382 So.2d at 699. In Robertson v. -State, 604

So.2d 783 (Fla.1992), the court held that the statutory pre-

sumption of impairment is not available when the State has

not complied with section 316.1933(2)(b).

Then in State v. Miles, 775 So.2d 950 (Fla. 2000), the court

made clear that evidence complying only with the Bender

common law holding does not..permit the statutory

presumption of impairment under the Implied Consent Law.

The court said that the common law approach of Bender and

the statutory presumption are mutually exclusive because the

presumption is contingent on compliance with the statute.

Miles, 775 So.2d at 956-57. In Cardenas v. State, 867 So.2d

384, 395 (Fla. 2004), the court held that improperly instruct-

ing the jury as to the presumption of impairment when the

evidence of blood alcohol has been admitted only under the

common law test—and not under the statute—does not con-

stitute fundamental error and is. subject to the harmless error

analysis of Goodwin v. State, 751 So.2d 537 (Fla. 1999), and

State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

These holdings yield the following result in tins case.

There is no challenge to the blood alcohol evidence as not

being in compliance with the FDLE regulations. The FDLE

regulations do not specify compliance with any expiration

date on the kit employed. The failure of the FDLE regulation

to require that the test kits be used before any expiration date

is not a violation of due process where, as here, the evidence

supports the scientific reliability of this test done with an

expired date. The use of a test from a kit with an expired date

is not per se error. Hence the general jury verdict on both the

impairment alternative and the DUBAL alternative is not

reversible because the Jury was instructed on the presumption

of impairment. Both DUI alternatives were supported by

proper evidence.

Affirmed.

SHAHOOD and MAY, W/., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial

Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T.

Case No. 02CF13706 A02.

Michael Salnick of the Law Offices of Salnick & Fuchs,

P.A., West Palm Beach, for appellant:

Bill McCollum, Attorney General, Tallahassee, and Don

M. Rogers, -Assistant Attorney General, West Palm Beach,

for appellee.

Not final until disposition of timely filed motion for rehear-

ing.

APPENDIX B |

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA, FOURTH DISTRICT

CASE NO.: 4D05-1496

L.T. No.: 02-13706 CFA02

RICHARD BRUCH,

Appellant/Petitioner(s),

Vv.

STATE OF FLORIDA,

Appellee/Respondent(s).

May 18, 2007

BY ORDER OF THE COURT:

ORDERED that appellant’s motion filed May 7, 2007, for

rehearing, clarification, and request to certify a question of

great public interest is hereby denied. Further,

ORDERED that appellant’s reply filed May 14, 2007, to

state’s response in opposition to appellant’s motion for re-

hearing, clarification and request to certify question is hereby

stricken as unauthorized.

I HEREBY CERTIFY that the foregoing is a true copy of

the original court order.

Served:

Michael Salnick Attorney General-W.P.B.

/s/ Marilyn Beuttenmuller

MARILYN BEUTTENMULLER, Clerk [Logo]

Fourth District Court of Appeal

APPENDIX C

SUPREME COURT OF FLORIDA

NO.: SC07-1099

Lower Tribunal No(s).: 4D05-1496

RICHARD BRUCH

Petitioner(s)

VS.

STATE OF FLORIDA

Respondent(s)

WEDNESDAY, SEPTEMBER 5, 2007

This cause having heretofore been submitted to the Court

on jurisdictional briefs and portions of the record deemed

necessary to reflect jurisdiction under Article V, Section 3(b),

Florida Constitution, and the Court having determined that it

should decline to accept jurisdiction, it is ordered that the

petition for review is denied.

No motion for rehearing will be entertained by the Court.

See Fla. R. App. P. 9.330(d).

LEWIS, C.J., and WELLS, ANSTEAD, CANTERO, and

BELL, JJ., concur.

A True Copy

Test:

/s/: Thomas D. Hall

Thomas D. Hall

Clerk, Supreme Court

Served:

MICHAEL SALNICK

CELIA A. TERENZIO

DON M. ROGERS

HON. STEPHEN A. RAPP, JUDGE

HON. SHARON BOCK, CLERK

HON. MARILYN BEUTTENMULLER, CLERK

7 APPENDIX D

[395] Mr. Hofmeister?

May I approach witness, Judge?

MS. ROBERTS: Line and page, please.

MR. SALNICK: I will tell you, just give me a second.

BY MR. SALNICK:

Q. Mr. Hofmeister, | want you to take a look at page two

of your deposition, lines 18—actually lines 16 through 19,

and when you have had a chance to look at that, please let me

know, sir.

A. Would you like for me to read it, sir?

THE COURT: Sure, to yourself. And then answer his

question.

THE WITNESS: Okay.

BY MR. SALNICK:

Q. All right. Does that help refresh your recollection?

A _ Yes, sir. |

Q. Okay. In fact, he was stepping from side to side six

inches so not swaying but just stepping, is that correct?

A. Correct.

Q. This after the accident, after the air bag had deployed,

is that correct?

* * * *

[397] Q. Okay. And when you indicated you worked in bars

and that you sang and that is how you know that individual,

what an individual looks like when they are impaired, you

also indicated that. you know it because of your recovery,

correct?

A. Yes, sir.

Q.'. Okay. Now, have you ever been involved in witness-

ing an accident like this, if you remember?

10a

A. No, sir, I have not.

Q. Have you ever been involved in an accident of this

nature before?

A. Not where someone—well, yes, back many, many

years ago when I was 15 years old and I was involved in an

accident, 16 years old, and I was involved in an accident

where a child was killed, yes, sir.

Q. Now, when had you an opportunity to speak with Mr.

Bruch for those brief few minutes, you didn’t notice any odor

of an alcoholic beverage, did you?

A. No, sir. We were outside and I wasn’t going, wasn’t

going to give a sniff test.

Q. Okay. Well, let me ask you, were you ever asked just

if you noticed the odor of alcoholic beverages and you said

no, I did not, do you

* * * *

[477] MR. LEWIS: May I approach, Judge?

BY MR. LEWIS:

Q. Can you recognize that, Ma’am; do you recognize it?

A. Yes,1 do.

Q. What is it?

A. It is a copy of the videotape that | made in my patrol

car that night.

Q. Have you had the oppertenity | to view that since that

night?

A. Yes, I have.

Q. Did everything on the video fairly and accurately

represent what happened that day?

A. -Yes, it did.

MR. LEWIS: At this time, Judge, State would move in

State’s 1.

MR. SALNICK: No objection, subject to our agreement

previously.

lla

THE COURT: All right.

BY MR. LEWIS:

Q. Now, did there come a time when you decided to take

blood in this case?

A. Yes, 1 did.

Q. And tell the jury what it means to take blood.

[478] A. When we have a crash where there are deaths or

serious bodily injury and we suspect alcohol or drugs are

involved, we take blood from the suspects.

Q. In this case, did you know you had a case involving

some serious bodily injury or death?

A. We knew we had a case involving death in this case.

Q. Did the person you suspect being the driver, was he

under the influence of alcohol, he showed signs of impair-

ment?

A. Yes, sir, he did.

Q. Tell us where you got this blood kit from?

A. The blood kit is kept in the trunk of my patrol car.

Q. Do you know how long it had been there?

A: For one month, two months at the maximum. }

Q. Okay. How do you draw the blood, how does that

work? :

A. We have to get somebody who is authorized to draw

blood on the case. This night we got a firefighter/paramedic,

Captain, Captain Walter Dillian drew blood for me because

he was authorized to do so.

Q. Just one moment. Describe just briefly

* * * *

[487] County Sheriff's Office lab.

Q. Did there come a time—and you delivered that to

them, ma’am?

A. Yes, I hand-delivered that to them.

Q. Now, did there come a time that you realized that the

blood kit was expired by 23 days?

12a

MR. SALNICK: I am cbjecting to the form of the question;

leading.

THE COURT: Sustained.

BY MR. LEWIS:

Q. Did you discover that kit had expired at any time?

A. Yes, I did.

Q. How many days did you discover it was expired by?

A. It expired in October on the last day of October and

the blood was taken on the 6th of November. So only by 23

days.

MR. SALNICK: Judge, I am objecting and ask that it be

stricken unless the witness knows that it expired on the last

day of October, that would call for hearsay.

THE COURT: Well, that’s what she [488] said. I assume

she must know that. I overrule your objection. She has a

reason for—perhaps, maybe she made a mistake for all |

know.

BY MR. LEWIS:

Q. Did you arrest the defendant that night under DUI

manslaughter?

A. Yes, I did.

Q. In the next couple of days, | guess you performed a

continuation of your investigation?

A. Yes, I did.

Q. What did that entail?

A. Me and Officer St. Laurent continued talking to wit-

nesses, we continued talking to people who were with Mr.

Bruch that day. We went back out to the scene and did

additional measurements. We went back out. We kept the car

at our impound lot, Jupiter Police Department impound lot.

We went back out, we did a full inspection of the car. We

measured the car. We took pictures of the car. We took

13a

pictures, we found new cars that were exactly the same, took

pictures of them.

Q. Based on the investigation, was your earlier deter-

mination what had happened in the

‘* * * *

[681] with the company that manufactured this particular

blood kit but rather a company who makes the type of tubes

that are within the kit.

Q. All right. And you indicated when you made that

inquiry from your perspective that you were trying to learn

what the expiration meant on the kit and on the tube, correct?

a TM...

Q. Okay. And in wanting to learn that you needed to

know how stable the additives were and how effective the kit

was itself in light of the expiration date, correct?

A. Yes.

Q. And you made that inquiry on December 12th of

2002, is that correct?

May I refer back to the e-mail?

Sure. |

My e-mail to them was on December 1 2th.

Of 2002, correct, of what I said, correct?

Correct.

You received a response back from them concerning

that i inquiry, did you not?

A. Yes, I did. 7

Q. And you received that back the next day, is

RQPO>aO>

* * * *

[694] equipment used, she can he questioned about.

MR. SALNICK: Judge, can I take that back?

THE COURT: Yes.

(Whereupon, the proceedings returned to open court.)

MR. SALNICK: May | approach the witness, Judge?

l4a

THE COURT: Yes.

BY MR. SALNICK:

Q. For purposes of cross examination I want to show you

this document and ask you if you would take a look at that,

tell me what, after you take a look at that, had a chance to

review it.

What does that appear to be?

A. It appears to be some documentation from Bectin

Dickinson regarding usage of their blood collection tubes.

Q. Allright. And where it says—

MS. ROBERTS: Objection, improper predicate.

THE COURT: | think you want to direct her attention to

some other specific place on there.

* * *£ *

[767] Q. All right. Now is there also something within that

document that talks about ideal storage and temperature,

things of that nature?

A. Ye.

MS. ROBERTS: Objection, beyond the scope.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. SALNICK:

Q. And does the author, does the Bectin Dickinson com-

pany themself provide recommendations for storage, — of

that nature?

A. Ye.

Q. All mght. And now when we talked about an expired

_ kit, just so that we’re clear we’re not talking about an expired

box, we’re talking about the tubes themselves, right?

A. Yes.

Sa.

Q. Okay. Expiration means the tubes that are used to test

blood, correct?

A. Yes.

_Q. Okay. And Bectin Dickinson in fact recommends

against using the tube beyond their expiration date, do they

not?

A. That is correct.

* * * *

[772] company personally to ask them what | their feelings

were about the expiration date because of the answers that he

told you, correct? -

A. Yo.

Q. Okay. And do you happen to have a notation as to

when you called to the company?

A. No.

Q. Do you happen to have a notation as to who you

spoke to in the company?

Q. That particular conversation, although you shared

with us what they said, you don’t have notes of that, correct?

A. That is correct.

Q. Okay. But what they told you apparently agrees with

the documentation that they printed out, correct?

A. Yes. -

Q. Now, if I’m understanding what it is you’re saying,

any company that puts an expiration date on a product, they

are talking about the reliability of the product,. are they not,

sir?

A. I would agree with that, yes.

Q. And they are saying they can’t vouch for the reliability

beyond a certain date?

[773] A. Correct.

Q. They can’t guarantee it?

A. Yes.

l6a

Q. Now, you are familiar with Florida Department of

Law Enforcement, the FDLE, correct?

A. Yes.

Q. And they have set rules out, correct?

A. YO.

Q. If FDLE doesn’t have a rule one way or the other

concerning the use of an expired blood kit that would mean it

wasn’t addressed by them, correct?

A. Yes.

Q. And for forensic purposes, you would certainly prefer

to use a kit or a tube that had not expired, correct?

A. Agree.

Q. And that is because you can’t simply say any longer

that the tube by itself stands as a good forensic example,

correct?

A. Yes.

Q. Because with an expired kit you got to worry about

the volume taken in, correct?

A. That is correct.

Q. You got to talk about stability of [774] chemicals

involved, correct?

A. Yes.

Q. And with the tube that isn’t expired you don’t have to

worry about those things, correct?

A. That is correct.

MR. SALNICK: Can I just have a moment, Judge?

BY MR. SALNICK:

Q. For all purposes then, if 1 understand Dr. Bidanset, the

kits that have not expired would be better, is that correct?

A. Thatiscorrect. —

Q. Thank you, sir.

17a

REDIRECT EXAMINATION

BY MS. ROBERTS:

Q. Dr. Bidanset, Mr. Salnick asked you about a—I

believe how it would, alcohol would affect him hypo-

thetically would you slam in the back of a motor vehicle

stopped at a red light that at an intersection, brake lights

illuminate on the vehicle that he struck? Would that be

consistent with somebody that was impaired by alcohol?

A. Yes.

Q. And would that affect what happens to their eyes in

that? ;

7 |. = s

[840] beers. Well, the re is four beers left. How many are in a

six pack? So, let’s soy after he left the bar that he consumed

two more of the beers and what was two more? So, now we

got him up to eight, don’t we? People don’t ride around with

a cooler in their front seat with iced down liquor for the fun

of it. He intended to drink it and he did because the proof is

right here before you.

Now, Mr. Salnick—getting back just a moment to the

expired kit, Mr. Salnick kept showing this piece of paper to

Susan Lewis and to Dr. Bidanset and would have them read

from that piece of paper. Well, that piece of paper is not in

evidence.

MR. SALNICK: Objection, could we approach the bench?

THE COURT: Yes.

(Whereupon, there was a conference at the bench.)

THE COURT: I didn’t hear what was said, something

about a piece of paper?

MS. ROBERTS: I talked about a piece [841] of paper.

MR. SALNICK: Ms. Roberts talked about a piece of paper,

that BD piece of paper.

18a

MS. ROBERTS: It is not in evidence and it is a fair

comment on the evidence.

MR. SALNICK: It is not a fair comment on the evidence.

State basically inferring that we somehow have the burden,

the fact that it is not in evidence State knows better because

the rules of evidence permit me to cross examine witnesses

from a pamphlet hut now to say that it is not in evidence

when, number one, it doesn’t have to be pursuant to the

rules; number two, you ruled that I could use it for cross

examination. It is a comment on the defense not presenting

evidence. It is a step above a fair comment.

She certainly could have said—Ms. Robert certainly could

have said, well, it is not authoritative or how do we know

who wrote it or maybe the cleaning lady wrote it but to say

that it.is not in evidence makes it appear to the jury that

[842] defense somehow has a burden. I have no other choice,

Judge, because | believe that this is manifestly unjust based

upon what has been stated so I move for a mistrial.

MS. ROBERTS: Judge, he used two pieces of paper

repeatedly through two witnesses. That’s all he did. The jury

has the absolute right to know when they go to ask for that

document that it is not in evidence.

THE COURT: I agree with that. So we'll deny your

motion, overrule it.

(Whereupon, the proceedings returned to open court.)

MS. ROBERTS: That piece of paper, ladies and gentle-

men, we don’t know if the ‘janitor wrote it or we don’t know

that. But it had to deal with the expiration of the tubes. Dr.

‘- Bidanset told you a little bit about sodium fluoride, the

preservative and how there was no expiration date on it and

that he had used expired tubes before and that it was,

certainly didn’t affect the results to what he was working on.

And then I asked him, I said,

* * * *

19a

APPENDIX E

IN THE CIRCUIT COURT OF THE 15TH

JUDICIAL CIRCUIT IN AND FOR

PALM BEACH COUNTY, FLORIDA

CASE NO. 02-013706 CF A02

CRIMINAL DIVISION “X”

STATE OF FLORIDA,

VS.

RICHARD BRUCH,

Defendant.

MOTION TO SUPPRESS BLOOD ALCOHOL RESULTS

COMES NOW the Defendant, RICHARD BRUCH, by and

through his undersigned counsel, and, pursuant to Fla. R.

Crim. P. 3.190, would hereby request this Honorable Court

enter an Order suppressing the results from a blood kit which

was utilized in the above-referenced cause to draw blood

from the Defendant at the time of the accident. In support

thereof, the Defendant would show as follows:

1. The Defendant is charged in a three count Information

with DUI Manslaughter, DUI Causing Injury to Person or

Property, and DUI Causing Injury to Person or Property.

2. According to the discovery provided to the under-

signed counsel, the Defendant had blood drawn pursuant to

316.1933. 7

3. The blood was drawn by a Medic WALTER DILLIAN,

employed by the Palm Beach County Fire Rescue as a Rescue

Captain. According to Fire Rescue Officer DILLIAN, he was

the only Medic on the scene at the time of the accident. He

20a

drew the blood. He was requested to do so by one of the

Jupiter Police Officers investigating the accident.

4. According to Mr. DILLIAN, he read the instructions

on the blood kit and explained the Betadine swab and needle

with a VAT vacuum tube. Although Mr. DILLIAN was not

sure if the kit came with a tourniquet, he basically drew the

blood, describing it as a pretty simple process.

5. Although Mr. DILLIAN, at the deposition, did not

recall the number of vials of blood he drew, or whether he

personally labeled all the tubes, he did recognize his signature

when he reviewed at/from the Traffic Homicide Report

supplied to the defense through discovery.

6. Through discovery, the State provided a copy of an

inter-office Memorandum written by then Officer AMY

WALLING' of the Jupiter Police Department. This Memo-

randum, attached and incorporated by reference hereto, dis-

cusses what is described as the “Dean fatality” on Novem-

ber 23, 2003, and references the agency case number:

“Dear ASA Roberts:

“I am writing this Memo to advise you the blood kit

used to draw blood from the driver of Vehicle 1, Richard

J. Bruch, had expired October, 2002. The blood kit had

expired by 23 days when I used it for the blood draw.

Respectfully, Officer Amy Walling”

7. According to Palm Beach County Fire Rescue Medic:

DILLIAN, at the time he used this blood kit, he did not know

it was expired.

8. According to Officer WALLING-FOX’s April 14,

2004, deposition, she indicated that she got the blood kit out

of her patrol car. Officer WALLING-FOX indicated that she

had no idea how Jong the blood kit had been in her patrol car,

' Now Officer Walling-Fox.

2la

but offered the opinion that the kit could have been in her car

for a month, hut no longer than two months.

9. Officer WALLING-FOX indicated that she had no idea

at that time that the blood kit had expired some 23 days

earlier, during the month of October. She further indicated

that there are no procedures in place at the Jupiter Police De-

partment concerning expired blood kits. Officer WALLING-

FOX indicated that the Jupiter Police Department has never

addressed this.

10. Based upon this, the Defendant ‘is requesting that the

results from the blood kit be suppressed. In support thereof,

the Defendant offers the following Memorandum of Law:

MEMORANDUM OF LAW

Blood test kits have expiration dates pertaining to the

period that the vacuum in the vacutainer tube is warranted.

Each tube contains a preservative and an anticoagulant. A

specific vacuum exists in a vacutainer cube in order to assure

a precise amount of blood will be drawn and mixed with

chemicals in precise ratio. For example, if there was too much

chemical and not enough blood, one’s test result could he

affected because preservative and anticoagulant is what is

referred to as “salting out agents.” If a vacutainer leaks,

microorganisms can enter the sample. Fermentation is a con-

cept which discusses combining blood with microorganisms.

ETOH is a byproduct of fermentation, and there is no way

to distinguish between alcohol consumed by a subject and

alcohol created by fermentation.

With an expired blood kit, there is a problem with respect

to this occurring, which renders the results inaccurate. Addi-

tionally, the Defendant would submit that:

a. The administrative rule (Florida Administrative

Code Rule 11D-8.012) for the collection of blood sam-

ples are insufficient on their face and as applied in the

instant cause.

22a

b. The rule fails to require compliance and is not in

accordance with the manufacturers’ procedures and

methods for use of a blood kit.

c. Manufacturers of blood kits, such as the one used

in the instant cause, establish expiration dates for their

blood kits. If a law enforcement officer knew a blood kit

was expired prior to its use, it would not be utilized.

d. As such, the rule is inadequate as it fails to provide

for basic quality control in the collection of blood

samples.

e. An expired blood kit would only exacerbate these

problems and would mislead a trier of fact as to accurate

blood results. :

In State v. Miles, 775 So. 2d 950 (Ha. 2000), the Florida

Supreme Court held that the administrative rules concerning

the collection, storage, transportation and testing of blood

samples were inadequate and did not comply with the core

policies of the Implied Consent statute as stated in State v.

Bender, 382 So. 2d 697 (Ha. 1980). In response to Miles, the

Department of Law Enforcement amended its rule regarding

the labeling and collection of blood samples. The rule cur-

rently states:

“1 1D-8.012-—Blood Samples—Labeling and Collection.

“(1) Before collecting a sample of blood, the skin punc-

ture area must be cleaned with an antiseptic that does not

contain alcohol.

“(2) Blood samples must be collected in a glass evac-

uation tube that contains a preservative such as sodium

fluoride and an anticoagulant such as potassium oxalate

or EDTA (ethytenediaminetetraaceticacid). Compliance

with this section can be established by the stopper or

label on the collection tube, documentation from the

manufacturer or distributor, or other evidence.

23a

“(3) Immediately after collection, the tube must be in-

verted several times to mix the blood with the pres-

ervative and anticoagulant.

“(4) Blood collection tubes must be labeled with the

following information: name of person tested, date and

time sample was collected, and initials of the person who

collected the sample.

“(5) Blood samples need not be refrigerated if submitted

for analysis within seven (7) days of collection, or dur-

ing transportation, examination or analysis. Blood sam-

ples must be otherwise refrigerated, except that refrig-

eration is not required subsequent to the initial analysis.

(6) Blood samples must be hand-delivered or mailed for

initial analysis within thirty days of collection, and must

be initially analyzed within sixty days of receipt by the

facility conducting the analysis. Blood samples which

are not hard-delivered must be sent by priority mail,

overnight delivery service, or other equivalent delivery

service.

“(7) Notwithstanding any requirements in Chapter 11D-

8, F.A.C., any blood analysis results obtained, if proved

to be reliable, shall be acceptable as a valid blood alco-

hol level.

“Specific Authority 316.1932(I)(a)2. (I)(f)1., 322.63(3)(a),

327.352( 1)( b)3., (1)(d) FS.

“Law Implemented 316.1933(2)(b), 316.1934(3),

322.63(3)(b), 327.352(I)(e), 327.353(2), 327.354(3) FS.

“History-New 10-31-93, Amended 7-29-2001.”

Although the rule goes into various details of blood testing,

the rule is fatally flawed when it comes to the manufacturers’

procedures and methods for collection of blood.

24a

In Bender, supra:

“The trial court ruled that [a] defendant(’s] due process

and equal protection rights were violated because the

[rules] failed to ‘incorporate the procedures and methods

of the manufacturers of the testing equipment for the

maintenance and operation of the breathalyzers.’”

Miles at 953. In reversing the trial court, the Florida Supreme

Court reasoned that incorporation of the manufacturers’

procedures and methods were unnecessary when the rules

were in fact in accordance with the manufacturer’s proce-

dures. Jd. Unlike Bender, Rule 11D-8.012 neither incorpo-

rates the manufacturers’ procedures and methods, nor are

they in accordance with them. Manufacturers of blood kits,

such as the one used in the instant cause, have established

expiration dates for their blood kits and prohibit use of the kit

after it has expired. As such, 11D-8.012’s failure to incorpo-

rate this procedure/method, or he in accordance with it,

renders the rule inadequate and in violation of Defendant’s

due process and equal protection rights. The failure to require

compliance with an expiration date violates the core policies

of the Implied Consent statute as stated in State v. Bender,

382 So. 2d 697 (Fla. 1980).

The Department of Law Enforcement has already estab-

lished that compliance with expiration dates are required

to assure accuracy in alcohol testing; thus, compliance with

expiration dates are part of the core policies of the Implied

consent statute. Florida Administrative Code rule 11D-8.0035

establishes the approval method for alcohol reference. solu-

tions. Within said rule, the Department of Law Enforcement

requires that manufactures of alcohol reference solutions

“must have performed and documented tests that demonstrate

that the alcohol reference solutions are reliable for at least

two years from the date of manufacture.” Fla. Admin. Code

Rule 1 1D-80035(1)(d). The Department of Law Enforcement

goes on to require alcohol reference solutions “be used in

25a |

agency or Department inspections within two (2) years of the

date of manufacture.” Fla. Admin. Code rule 1 1D-8.0035(3).

As such, the Department of Law Enforcement has established

an expiration date of alcohol reference solutions and pro-

hibited their use after the expiration date. Thus, compliance

with an expiration date assures the accuracy of testing, while

violation of the expiration date would raise legitimate ques-

tions of the accuracy of any test, thereby violating the core

policies of the Implied Consent statute as stated in Bender,

supra. Due process and equal protection requires the Depart-

ment of Law Enforcement to establish proper rules that

ensure reliable. scientific evidence fin use in future court

proceedings. The failure of the Department of Law Enforce-

ment to incorporate the manufacturers’ use of expiration dates

for blood kits denies the people of Florida front having

reliable scientific evidence for future court proceedings,

thereby violating the due process and equal protection clauses

of the constitutions.

The Defendant would submit that preservation of evidence,

at all costs, goes to the heart of the criminal justice system.

Preservation of evidence and following the rules which

govern the obtaining of evidence depends on the integrity of

these devices. In a DUI manslaughter prosecution in the State

of Florida, the State must prove that at the time an individual

was behind the wheel, his blood alcohol level was in excess

of the legal limit. It would be difficult, if not impossible, for

the State, with any degree of reliability, to present to a tner of

fact evidence that an accused’s blood alcohol level exceeded

_the legal limit when the very kit utilized to test this blood had

already been expired at the time the test was administered.

This is not a question of weight, but goes directly to

admissibility. There can be no concept of substantial com-

? By Officer Walling-Fox’s own admission, the issue of an expired

blood kit has not been addressed by her own policy agency.

26a

pliance when the process wage with an already expired

blood kit

The Defendant had nothing to do with the expired blood

kit. By virtue of the fact that it had expired; a certain life is

put on it, which, by definition, ends at the date of expiration.

To permit the use of results from an expired kit would

mislead, confuse, and give a jury inaccurate results. If be-

lieved, these results could result in the deprivation of liberty

of an accused who had no participation or fault in the use of

an expired blood kit. Based upon this, the Defendant would

respectfully request this Honorable Court enter an Order

suppressing results obtained from the expired blood kit.

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by delivery to ELLEN

ROBERTS, Assistant State Attorney, State Attorney’ s Office,

401 North Dixie Highway, West Palm Beach, Florida 33401,

this Sth day of November, 2004.

Respectfully submitted,

LAW OFFICES OF SALNICK & FUCHS, P.A.

One Clearlake Centre, Suite 1203"

250 South Australian Avenue.

West Palm Beach, Florida 33401-5014

Telephone: (561) 471-1000

Facsimile: (561) 659-0793

/s/ Michael Salnick

MICHAEL SALNICK, Fla. Bar #270962

/s/ Jack Fuchs

JACK FUCHS, Fla. Bar #0036889

27a

JUPITER POLICE DEPARTMENT

Inter-Office Memorandum

DATE: May 14, 2003

TO: ASA Ellen Roberts, SAO/Traffic Homicide

Division

FROM: Oft. Amy Walling, Jupiter Police Department

SUBJECT: Dean Fatality on November 23, 2003

(54-02-037277)

Dear ASA Roberts,

I am writing this memo to advise you the blood kit used to

draw blood from the driver of vehicle one, Richard J. Bruch,

had expired October, 2002. The blood kit had expired by 23

days when I used if for the blood draw.

Respectfully,

/s/ Amy Walling

OFC. AMY WALLING

28a

APPENDIX F

IN THE CIRCUIT COURT OF THE

1STH JUDICIAL CIRCUIT IN AND FOR

PALM BEACH COUNTY, FLORIDA

[Filed JAN. 14, 2005]

CRIMINAL DIVISION X

CASE NO: 02013706CF A02

STATE OF FLORIDA,

| f

RICHARD BRUCH,

Defendant.

ORDER RE: MOTION TO SUPPRESS

THIS CAUSE came before the Court on Defendant’s

Motion to Suppress. Based on the evidence presented the

Court finds:

Defendant Bruch was involved in an automobile accident

at the intersection of AlA and Donald Ross Road. When

Officer Fox of the Jupiter police department arrived at the

accident scene a crowd of approximately 30 people were

standing around. A Palm Beach Gardens Police Officer was

already there. .

The middle of Donald Ross Road is the dividing line

between Palm Beach Gardens and Jupiter and a discussion

ensued concerning which agency had jurisdiction. After it

was decided that the case would be handled by Jupiter,

Officer Fox began trying to determine which of the by-

standers witnessed the accident or were involved.

29a

She was immediately informed that the woman in one of

the vehicles was dead. She followed this person to the

Mitsubishi vehicle and confirmed that fact. She noticed Mr.

Bruch and asked if he was a witness or involved. He said, “I

was driving the Isuzu Trooper.”

Mr. Bruch was stumbling around and smelled of alcohol

and his speech was slurred. She placed Mr. Bruch in the back

of her patrol car. She did not read him the Miranda Warning

at this time. She asked for his drivers license and he said,

“It’s in the car”. This question and answer concerning the

whereabouts of the driver license is therefore inadmissible

because this was an in custody interrogation. He later asked,

“What’s going on?” What’s the big deal anyway?”.

Officer St. Lauren of the Jupiter Police Department arrived

and conducted a traffic homicide investigation. He questioned

Mr. Bruch while he was in the back of the patrol car and

obtained all necessary information to complete the accident

report which is sent to Tallahassee. These questions and

answers are protected by the accident report privilege.

During a period of time when he was seated in the back

seat of the car the car’s audio and camera were turned on.

While he was alone Mr. Bruch made several comments

picked up by the recording device. The comments were,

“Holy Shit” and “Oh, my God.” These comments are ad-

missible as they are not the result of any interrogation.

The police say he also said, “I should have stayed home

this week end.” He asked, “What happened to my vehicle.

Will it be safe, I have a lot of stuff in there”. These statements

are admissible as they are not in response to any questions.

Later a sample of Mr. Bruch’s blood was taken by a fire

rescue EMT. Officer Fox gave the EMT a blood draygng

kit she kept in her car to use for that purpose. The blood

collection vacuum tube used had an expired expiration date.

30a

The Court concludes, based on the testimony of Dr.

Bidanset that the age of the tube did not effect the accuracy of

the blood alcohol.

Based on the evidence the Court concludes that Officer

Fox did not question the Defendant in order to complete a

crash report. Officer Fox did not require the person involved

in the accident to answer questions. Officer Fox did not

indicate to Mr. Bruch that he must respond. The statements

made by Bruch to the effect that he was the driver of the

vehicle involved was not and in custody interrogation. This

statement is admissible.

The Court further concludes that the results of the blood

tests are admissible. Whether the fact that the vacuum tube

used was past it’s expiration date can of course, be used to

question the accuracy of the results but it does not render the

results inadmissible.

Wherefore, it is ORDERED AND ADJUDGED that the

Motion to Suppress is granted in part and denied in part.

DONE AND ORDERED in West Palm Beach, Palm Beach

County, Florida this the 14th day of January 2005.

/s/ Stephen A. Rapp

STEPHEN A. Rapp, Circuit Judge

copies furnished:

Ellen Roberts, ASA

Michael Salnick, Esq.

250 Australian Ave., ste 1203

West Palm Beach, FL 33401

3la

For in Vitro Diagnostic Use.

INTENDED USE

AD Vacutaines® Tubes. Needles and Hriters are ised togethor as a system for the collection

af venous blood. BN Var tlainer® Ties are used (0 transport and process blood fiw testing

serum, plasma or véale blood yw the clnical laboratory

PRODUCT DESCRIPTION

8D Vacutainer? Tubes ate evacuated ‘hes wath cv or-coddeul (ser tLibke below) conventional

slopipers of AD) Hemogaid”™ Clounes. BD Vaaita ner’* Plus Tubes are plustic tribes. Both tube

Types (oataln additives in varainy concentrations dependent ujiew the amount ui vacuum

and the required addirive to hina ratin fn the tube See each shelf package or case label

tor specific xiditeve quantity and apmrownate ‘hav walume. Advitive Choice dene ids on the

awalyt test method. It specihed by the meandaciurer of the test reagents andi

lestaiment on vitich the test; perlormed. Tube interns ace sterile. Tube stoppers are

bubricated with sikcone ar qiyeerine (see ‘nchvidval chell package on cose abel) to lactiace

SlON per INSPrTON

8D Vacutainer® Tube Closure Color Code Cross Reference

ADDITIVE GAQUP/ADONTIVE | CONVENTIORIAL | ED MEMOGaRO”™ |

| Gosune erosune H

Ga Separation Tubes | i -

8D SST Tuhes wath Gel and Clot Actwatos | Red/Grey , Gord i

1 BD PST* Tubes with Ge! ond ithe : GreenGrey | Light Green

Non-aduitive Tubes i r

Séicone Coated | Red | Ren

Uncoated | Red j Pink

No Adthieve! | Chomy Rodtight Grey | Cleat

| Serum Tubes with Additives T H |

Thrombin? ‘Yellow! Gacy : Orange

Plus Serum with int acuwatos Red ! Red

Thrombin!, Soybean Trypsin infebytor r Light Biue | Lyht Blue

Whole Blond/Plasma Tunes } i

K,EDTA 0° KEOTA | Lavender | Lavender ? Pink

Grrate/CTAD (Coagulation) | light Blue | Hight Blue or

Clea |

Citwate (ESR) ! flack Blue

Sein FlacwideSodium SOTA (Gincose) | Grey ‘Gory i

Sadi FhenrickyPot assem Oxalate (Glucasel : Grey Grey

Heparin’ ) Oren ' Cain

Acic Cibate Dextrose (ACO) | Yetiow : WA

Sodio " Pusbyaet 104 Sullonace (SPS) i Yellow | NIA

Trace Elernent Tubes { ;

Siteone Coated, Hepa! EDTA, ut } i

| yeith tnt activation | WA * Reve! lve

"Lead Tubes ; care mes pee ae

Heparin! Nia : ‘tan |

| K)EOWA | WA : tan me

resnionetpmie ven and notunetara ns ee

BD Vacutainer* Serum Tubes

BD Vacutainer® Pls Serum Tubes ave conted vath sslicone and mucronized silica particles to

accelerate clotting. Particles i the whvte film on the interior surface actwate clothing when

tubes are mwced 5 times by inversion See Lavalations of System. Precawtions. Specimen

Collection and banding Sections

A scone coating cn the vials of mes! soruri tubes reduces adherence of re cells ic tbe walls

BD Vacutainer® Tubes for Lead and Trace Element Tests

Tubes for lead testing and other trace elements are Labeled specifically tor these purpoves on

the viel package and Case label Use only apprapeately labeled tubes for those tests, The

tube: fon earl and ace element testing have heen tected by extraction of the sapere! tube

for 4 jwours. Alumna Absorpucn Spectzox apy (AAS) testing yielded results Lielow these

Concentration banaty:

BO Vacutainer* Trace Element Tubes Contanwnation Upper Limits

Reade | Glass ng | Rome | ste} Sok Ars gh

Antinnry 08 pad \ 03

Arsen 10 02 Magen 4 o |

i a TT ee

Cakiom’ = ¢ 400 = 10, ny’ we ay

| Comey 09 a 0s | Selerann _ 1

Copper go} 50 bne* 0. 4.

a a S ees

Water extraction analyzed by ‘Flame. ‘'Cold Vapan. aif others flamelnss AAS

(BO Vacutamer* Tubes Tor Lead Testing Contamination Upper limits —

niet ag

10.

8D Vacutainer* SST“ Tubes and Transport Tubes

The intenor of the che wall 15 cowled with miconized silica particles to accelerate doting,

A hamer polyines ts present at the tube bottom. The density of this maternal causes if to

move upward durng venti fugation to the serum-clot mterlace, where ii forms a harrier

separating sein from hben and cells Serum may be asparatcd dorectty from the collection

tube, elunmating the need for transfer 10 annther contamer, BD $ST'* Transport Tubes

Contain the sume clot actwatr as BY SST" Tubes with agproximarely twice the quantity of

hanver, Thy ackiitianat mater al produces a larger barner between the serum and cells thats

mone Stable: for shaping [rom a phlebotomy «ite tu a testirg site. See Limitations of System,

Merautions, Spcomen Colechan atd Handing Sections.

BD Vacutainer* PST™ Tubes

The witeree of the tune walls coated with tiluum henarin to nhiby clutting. Heer

uthivales anuthrombins, thus olocking the cong alation cascane and producing « whole

bood/plans se nple nsiead of ciated hynod pins sermn. & barrier po ymer |S present at the

tube potion Tne density of this matenat Causes it (o move upward during centrihuyation to

the plasew cell intedace, edvere it forms. a harier separating plasma fram cells. Sepematent

plisina may he aspirated direc ity horn the collection tube, eliminating the need for manual

transfer to another container. Plasma nbtamned! im BD PST" Tubes should be tested or

temeved from the tube withn 2 hours of collection. Sec Linntations of Systam, P ecautions,

Specimen Collection aid Hundang Sections.

8D Vacutainer” Tubes for

BD Vacutainer* Mus K2FDTA and Plus Serum Tubes as well as the BD Vacutamer* Glass

Serurn cad Gass KZEOTA Tubes may be used for routine Immunohematolagy testing yuch 4s

red cell grouping, Rb typing and anubudy screening. BD Vacutaines® Plus Serum Tubes and

Glass Serum Tunes nay atso be used fer ied cell phenoryping and DAT testing Tubes must

be fled to canacny (until vacuum 1s echausiod) Additive tubes (K) ar X;) must be inverted &

tu IC times to assume compicte mining with blond, as erronenus results may ovcur. See

Lmiiahions of System, Precautions, Specimen Collection and Handing Sectiuns.

8D Vacutainer* CTAD Tubes

‘tee CTAD sube 1s used for the collection and transport of specimens for hemostaus iesting

The CTAD sotution is a nrecture of sodium ciate, theephyltine, adenosine und dipyndamole.

The aurpose of the anditive +s to anacoaqulaie the saecemen and te mannuze wt wtio

pivclet autivation See Limitations ot System, Mocautions, Specimen Collection and

Hunuiny Sechons

8D Vacutainer* Plus Citrate Tubes

The tube component is Compsed uf two plastic tubes assembled together to maintain the

adehteve, All (ube configurations ae “hull draw’ and utilize BC Homagad™ dosures. See

Unwtaliors ul System, Precautions, Specimen Collection and Handling Sections.

ihe product performance has heen compared a the 4.5ml glass tube for towtine coagulation

assays on a vanety of danor popula: linws with clinically equivalent results obtained Mote”

all studies were potlonned on donors with hematoc is between 2S and 55%.

BD Vacutainer" Blood Collection Needles

8D Vacutainer® Rinad Collection Nvedies are single use, deninie-ended, slawiess see

needirs. They have a threaded hub that his mio the threads of all AD Vacutainer” Needle

Holders The venapiacture ead of the necdie nas a point specially designed to cater the skin

easily during verininctive The note 6 lubricated with silicone,

AY) Variitaine' Muluple Sample Neadles have a nithe’ siceve cuvenng the non-patient end

Of the neerile that prevents legkaye of bidod wte the holder duciwy vermpunccure. This

Prochict Contains Pry Nitra Rubber.

The tubes she into the hekler and are pushes anto the back end of the needa, allowang the

vaca mn the tube tv draw blood ta a precetermuned evel The needles are avadable m |

andl 1-1/2 wich bengtins, in 20, 21, and 22 gauge. MeceBe size and Lot umber are printed on

each incivelsal needle assembly.

LIMITATIONS OF SYSTEM

the quastity of blood draw vanes with alvturte, aubrent icmyperaty’e, narametnc pressine,

tube aye, verous pressas Pond tiliag technique Tubes with draw volume cralies than the

/PPATeNE OMENSIOS NCCE fparted draw tubes) my ill More slowwy than tubes of the

Source wee walt greater mraw volume

for those lubes sulyjected 10 centrifugation te generate prasma or serum for resting,

Standlard processing Candiuons do net per essary completely sediment all cel, whether or

DoF barnes gets present. Accordingly. Cell-naséri metabolism, as well a5 natural dagradabon

ex vivo affects scrunvplusina analyte cor jactumies beyond aceltular charges. 't

6 recommended inal testing for glucose, unc acid und lactate dehydrogenase (LD} he

perlonned us sunn after collection anc separation os yoswible. Due to natural deqsadation,

olay 1 separatun of the serum oF plasma have the cellular mass or in testing after

Separation wail rest mi enoneous results lor thay: anatytes.

32a

Pring fo ising CLAD tubes to collect specimens fant wert patents ter PT deteiminatinns

wath Citrate cansitive reage's, plorse contact the BD igclevcal Scrvaes Deparineat ar

1800-65) .0074,

BD Vacutainer® SST" Tubes, PST * Tula, and Phiy Scrum Tubes are mot recommender! fre

collectan of samples for hind banving procedures. Glass EDTA and glass Semm Tubes ave

accéptabile for hood hankiay prucedeecs. BD Vere istainer® SST" Glusy Tides and PST

Tubes age nat cecomanended fon collecting of simples lor therapeutic diiig meantoeny (TOM)

uSSiys. BD Vocutvaner® SS¥™ Plus Tubes «an be usad far certain TOM assays.

Please Cantal BD Techincal Services Dxparinent at | 900 631 0124 for detars.

Oo 9nt ese RD Varutamer® Fibes contaning lithium heparin for lithaan hepa easement

For enagaslatinn tests, df patign? hematoet & abeew 55%, the final ulate concenwation in

the specieten shan’ be cachprstent

PRECAUTIONS

+. Storage of glats-tuhes containing blond at or betray °C may wsidt in tue brestage.

2. Da not semowe ronventinnal nuhber stanpers by milling with thuinly tenove stanpers

vaith a Past anet pall motion ;

° Drv nat ese tubes, oF needs if fovesign wate 5 present.

4. The paper label covenny the comnccieon of the anette simelds wil fear when the nestle is

apencd. Dyno use needle it fabel hag Loess tora belure venipuncture.

>. CTAD thes musi be protected from anihoiai ane natural light during steaxge.

Accunmated light exposure in excess ol 12 hours can cause additive Inactivation.

6, BD Vorutaincr® Plus Serum Tubes with (ot Aghwater are mot t0 De used as acfiwcai tune

lor coagulation shaces,

7. Separation of serum ar plasma from the colts shoud take place veuthin 2 linet of

poe CAUTION: .-- 0... oo

4. Pacer cin Pecantions, Uhe ghar, am, ee protein, anepend

| pratective eqpipment, and enginerriag cotiets to protect Gare ploud splatter, akon

__ eakage, and patemtiat posure tn Moodhurne pathouens

2 0. All glass hie the potential for leakage. Examine all glass lor catentiat damnage

(ens before use, andl ke precanbanary measures during Fainifing,

3 Hanlte lf Dielogyic sonnpates cmd baad cokection “sharps” (bncets, weedies. het

anaplers, anal blood collection vers) arconfing tn the pntiens vad procedures of your

1 favilny, Obtain agquopriate merical anention in the event of aay exposure tu uolagic '

j saan ples (ken example, Mingteyh a puna tare weary), nce they sncy ts omesawl viral '

hepatitis, HIV (AIDS), oF ether valentines hem ases. Uidize avy built-in isetnerdie |

protector, if the nload collection deve e premier One BD dens nut Hes cmencmed

teshtelcing iced needles. Hravever, he policies and nrncedates af yeut hulity may

Giler and mst alvays tie folloeed

4. Discard al binnd eetiection “sharps” iv hiohazard cuntaness opprawed for tein dispnsal,

5. Transterring 9 sampte coPecter! many syringe and newlie t9 a tube ty At

. fecommended Additional maniqudation'at sharps. sinh as hollow bine nendtes. j

{ increases the potential tn needdlestick ingury !

| & Trasesterring campos bom syringe ti anezacvated tube using anon deny deve

> Shaul hepertoemedt veitl caution bor the reasons described below, « Dejmessing the

| Sytinge plunger duting trandler can create a positive prevsvan foncobaily ubsystaciny tine)

| few bined wanster may also cause over or wder filing of tubes, resulting in an i

+ nconect bined to-aciditive rain and potentiay incorrect analytic rern'ts * Cyacuated |

tubes, are designed to diary the volume vmlicated, Filling +s Complete rae vac uurt no

Jonger continues to diay, thouqn same tubes my partially till due to plenger :

teoviane eaten filled hom a sytinge. The laborainry shoe be consuited ‘exgarelingy

the use of these saagtes

7H btond és collected through un intravenous 0.¥) fine, enowe that fine has heen

cleared of LV. salution betuee hequnning co fi blood collection tubes. This 1s crithcal to

avid enonnorts bibe-atury Cabs bern LV. {lng contarmenation,

8B. Overlileny or under fiiry of tubes wall resuit sn ad inconect hiaiut-ta-adeiteve ratio

& ond a7 bead Wo incorte Ce analy ic tr suet OF Pet provtuct partormvanee

ee a eerre oe

Store, tubes at 4-25°C G9-77°F), unless nthenvise natert nr the pack age labet. 4! iguicl

preservatives and anticoagiants are clear andcolaite<s, except CTAD vaiclhis pele Do

not-use if they are discolored OF contain pweriprtates. Priore) and heoze din! ackhtoves

such ay hagsarin and (hrombis are white: fluoride and ttucriocinaaiaye may tr Freie yank [Me

pot use Cokie hin changed. 00 mst use nabs aber beth enplewion dst

SPECIMEN COLLECTION and HANDLING

READ THIS ENTIRE CIRCULAR REFIIRE PERF QUMIRIG VERIPLNC TURE

Equipment Not Provided for Specimen Collection:

L Prcaticg Stondosd Precamtions ve yloves, eye protection. coals ar qawmas, and athe:

cnpropriate upperel lar peutecuon ham exprsuse to hlnadhra ne pathanens or ther

potentially edeucous muateriaty,

2 Any BD Vaqutamnes™ Noere Holders of the standard 70 may be weed wt! 13 or 16 mm

shametcr tubes. Use the small (pediatric) aeecic twnlctes with 10 7% can sfanwter (yebes. a

peudaiia he adapter shuuld be used to modify the standard hutdler ‘9 fi the 10 25 sm

ula tet Lubes.

4 Alcohal ab for leanying yte. ( additronal iuhes requinng stenie Colter tion's, suet as

Wood cidtaes, are tod (rom the sone: venom ine, we lnciure Of nding ne cunts

afternative for cleansing. Follaw *he labararcry policy lor stente sample calle hon fet sin

peaparation and tube banding wswuciuns, Do not use alenbol hased cleansimy materials

vahen samples ate 10 be visert-far bane aicohol testing.

4 fey stende queen.

5 Tourenquet,

( Necuie diqpasal container for used neerte or neectothykict (anphination

Required Equipment Not Provided for Specimen Processing

|. Dsposanhe ieanster uapeis dl direct sampling ten the iastioment ss nat used o if

specimen «6 vlured separately.

2 Connrifage capable ot generating the reramncaded RCF of the tute bottom A hovigrntel

contiitaye head 1 prefered for baeiies quiatity vath 8) SST" and BD PST Tubes and to

Obtain platatet peor plasma tor Coagulation ctuvlics

3 Gloves and other persona’ paovertive enuipment ay metessacy for prntection taun

pathogens.

equanue ta hicodhorne

Preparation for Specimen Collection

Re cure the [oileving inatasias are readily acceythle belure peclormang venipuncture,

+ See Remwed Equrnment Not Povdded far Saas men Colle te) above

2 All mcessary tubes, identitied 4w size, chavs, and .tlditive.

J. Labels for positive nanent identification of samyees,

Recommended Order of Draw

1 thes far stevie samples

2. Tubes for compitation sturties (e.g. citeate)

1. AD SSF and Sern Tubes,

4 Tubes with other adutives (0.9., hopann, EDTA, fiqnde)

RD S$ f Tubes anc BD Varntainer? Plug Senin Fubes contain nasticulate clon activalars and

are considered 2dalitive tubes, These fore Pin Scrum Tubes are not be he used as discard

lubes befuce duawing citrave twhes far coagelation studies. A lass or RO Vacutainer® Plus

ducal ibe muse he used 4 only otrate tubes ae dary sath a Blond Cn'tection Set tor

perwneaiuie

Prevention of Backflow ~~

Seare serie evacrated blood collection tubes Covtan chemical eckhtives, 1 is impartant to

avord possible backflow frou the tube with the possiblity at bere putanat recctions. Tr

qa arpiest ba logy, elnerve thy {oitewing precautions:

1. Place patent's arm in a dowry pos :tian.

7, Hold tube vatls the stopper uppenmios!.

1 Retease fonquct os ceae as bleead stants to Bow fae tube.

4. Make «ane tribe adktitrans do vol tanh stoyper or end of the needle during venpuncture.

Venipuncture Technique and Specimen Collection

General Instructions

WEAR GLOVES DURING VERIPUNC [UNE AND Y/R EH MANOUING BLOOD COLLECTION

TURES TO AUINIMIZE EXPOSURE HAZAM),

1 Select tube ne tubes approeate for muured specimen. For aera callectinns, see-the

specific, structions noted in the calicchon device product cwcetar.

2. Assemble capri in nok. Be sue nredie :5 tum'y seater 10 ensine neorio shyc’, vit

tonthver a derine ee

3. Gently tan vihes containing alditves to vistudye any wratenl that May he adhering to

the sinpper.

‘ Place tule inte holler. Mote: Ou nol puncte stefper.

5. Select sive for verspunciure.

(s. Agyily Wuceques. Prepare veripur cute ite oath or appripriute anteseptic. DO ROT

PALPATE VENIPULECTUIRE AREA AFTER CLEANSING

7, Fae patient's mina owen Posie

' Bo Remuye wrestle shield. Perform venyoncture WITH ARM

DUWCWARD AND TUBE STOPPER HPPER-AIOST.

+ 4. Comter tndwey at holder when per etrating the stepper tes

raevent sidewall penetration aie! scout premature

vacuEm 186. Posh fine cata nierfte puncturing Si9pper

shephage

40. REMOPI) TOURMIIDET AS SOOM AS RLOGD APPEARS IM TURE. DO GIN) AU Cis CONDENS

OOF TUBE TO CONTACT THE STOPPER O8 (ND OF THE NEEOLE DURIIK: PROCEDURE,

“ne: Blood may occasionally lori fae te ncedle sleeve. Practice Standwd

Penaartions (o minmure exposere fazard If no bicod fows mty (ube or ii bined ceases

(0 Have belore an ariequate specamen is collection, the Satignyang sters are surpyested ty

Cumin'ete somastactory collection:

» Post ibe forward vat tube sioaper nas been penetrated. | reccssary, hold in place

(6 ensure Complete vac min crave

le. Contam correct position at needte camuda ry vein

C. REMOVE TBE AMD PLACE MEW FURL ONTO THE HOLDER

«LM secund tae does not yer, tetiewe “cede and discard Repeat pevvedtne fom Sey F

1), Wetven fese tere has bork tr its tated wohine and Ulyod Sry ceases, omuwe it bom

‘vouder.

12. Place succeeding tubes in baker, panciing dlapheagin ty heya Movs, See

Recon mmenced Urder of Drarv.

13. vile each successive tube i Fitton, tien the fled tube upsite-duvmn and return it to

OIPNGRS position This 1s ane complete iverson,

33a

For proper additive perlormance, invert RD SST” Thies, and Plus Serum Tiles > tunes.

overt Cinate w CTAD tubes 3-4 wines. ‘overt all other fillerl additive tubes B-14) times.

Du not shake. Vigorous m cing may carise ‘naming of hemo ysis. insuflaent mixing oF

deiayed muning m serim tubes may reselt wm delayed clatter and nncorrect test iesults.

Im tubes wath antcoagulants, imatlequate mining nay -esui «1 platelet clumping clottiny

andlor incorrect test resiats

14. As snon as blood stops flowing wn the Last tube, rewrove needle from vein, applying

pressure lo purciure ste wath diy siete seals unul bleeding stops.

15. Once clotting has occurred, angay bandage if dosined.

16. After venipuncture, the fop af the stopper may conta resin b'aod Take proper

prec auitions when handbag tubes te averd contact with this blood,

17. Dispose of needle and hulder per your faclity’s policy and qpidelines

Clotting Instructions

Allows blond to cin! tharnughly helyre cert tugation, The faliawarg toble ques We

recomuneaded miniauin dotting times for speci'tc tube types oF acd tives: BD SST Tunes,

and Plus Serum Tubes should be inveried five tines.

- Mien Cling Tie Necormendatons ee

5 ——fatt fet j

———y

% ]

Recommended times are based upon an intact clotting process Pafiewts wat 2 voewanad

clutting dite to disease, or those recenving anticoaquiant Hherapy rAquive Mewes tne for

complete clat formation Separation of senim or plasina how celle sho ala Lake place wathan

7 hows of collechon to prevent eroneous lest results according 10 NCCLS quidelines. See

Limitations of System, Precautions, Speamen Cottection and Handling Sechons.

Centrifugation

Caution; Do aot centrifuge glass tubes at forces above 2200 RCF in a hori-

zontal head (swinging bucket) breakage may occur, Glass tubes

centrifuge as

may break if centrifuged above 1300 RCF in fixed angle centrifuge heads

BO Vacutane® Pus Taba wl wittand up 10,090 CF 8 a bance

centrifuge. Always use appropriate carriers or inserts. Use with

cracks or chips of excessive centrifugation speed may cause tube

breakage, with release of sample, droplets, and an aerosol into the

centsifuge bowl. Release of these potentially hazardous materials can be

svoided by using specially designed sealed containers in winch tubes are

held during centrifugation. Centrifuge carriers and inserts should be of the

size specific to the tubes used. Use of Carriers too large or too small for

the tube may result in breakage.

ACE is related to contitunge speed setting (pm) usmy the fofuwiny equation:

where “r*, expressed in cm, is the racial clistance how the

ceiter of the centrifuge head to the bottom of the tbe. the

fullowing lable gives recommender centriftune RCF andl tine.

Centritugation RCF and Time pee

paoouct a

oa “a 1000.) '

BD SST™~ Plus and BOPST™ Plus Tubes - ‘3am {1100 1300 w 1

BD SST Plys and BD PST™ Plus Tubes = ‘6mm 1000-1907 jy

LBD SST" Transport Tubes... 190022900 5

1 Ad non oct 5 ee ee + = ae at ies ee eee

‘Cala Vubes* 1500 1§

15 minutes for ali gel tuies in a fixed! angie ceaturdige

RCE ~ Retative Cemtifugai Force, y's

“Crane times aunt bee veut hovel at speed ord bere to ceremony mogmc plete gen phrora ysotaet cot

«VORA par CCS Gurdetines,

Ensure that hes are property seated in the contiluge carner. Incomplete seating could

result in separation of the BD Homogard™ Clusure from the tube or extension af the tube

above the caruct Tubes extending above the carrer cotiid catch on contriluge head,

tesuilting om breakage Bulunce (ubes to minimize the chance of ylass breakage Match tubes

to hibes of the same fll tevel, ghiss (ubes to lass. tubes vith BD Hemogan!™ Closure to

others with dhe Closure yet tubes 1a qe! thes, BD Vacuta ner Plus Tubes wath Phis Tubes,

aud tube size to tube size.

Abvays allow contuiluge to caine to 2 complete ston heloe aticmptiny tu remove tubes.

When centifuge ead has siupped open the kd and exanune for possible broken whes if

treakaqe 15 indicated, use mechanical device such as forceps oF hemostal to remove nibes.

Caution: Do not remove broken tubes by hand.

See cenretuge instaict on manual fur disielec ion instructions

Barrier information

The flow properties ot the harrier material are temperatuae-celated. Hows way be impeded if

Chitled bela? oe caning centifagation. Lo egeew2e Now and prevent hooting during

Centrifugation, set refrigerated contfuyes wv 25°C (77°F). Gel separanion tubes should be

centriluged no !ier than 2 hows after collection.

Tubes should rot pe re-cont tuged once harner has farmed, Baniers we more stable when

lubes are spain in centrifuges with hutizuntal (sanding dur ket) heals thi those with fed

angie hearte Note: Some push-duwn liters may not be compatole will plastic (des due ta

the Lapered mer chamerey of the Whe.

Separated see im or olasina +s ready tor use, The tubes may be placed sireetty on the

wstrumen| Caries 0” seeunvplasma may he papetted my an analyzer cup. Some inytruments

can sample duectly trom a separator tube wath the stopper in place. Follow the instrument

mamelocturer’s instructions.

ANALYTIC EQUIVALENCY

Evaluations of RD Vacutaincr Tubes have been performed for an anay uf analytes over a

variety of text metharls and time penods. The BD Techical Servi es Department 15 available

Jo answer questions regarding these studies. Please comact them to obtain teterences and

techincal reports on these evaluations and any otlver infurmation regarding the use of BD

Vacuiaines* Tubes wath your instrumentecagent system.

BO Technical Seraces may be reached at 800-631-0174. You may write to BD D:agnostics

for wharmityn at BD Technical Services

BD, Franklin Lakes, NP 07417

wenn. bd.com

Wheneve: changing ary manutacturer’s olood collection lube type, size or storage condition

foro particular lavoraliory assay, the laboratory personnel shoukt review the tube

incu lacturer’s cata and theit own data tn establishrver ify the reference range for a specific

instrumentieagent sysiem. Based on such ilormation, the laboratory can then decide if

changes are appepnate.

REFERENCES

NCCLS Document 15 AS. Evacuated Cobes and Add:tives for Btoed Specumon Codinetion. apmewad

suamehad SAD ork Wayne, PA: National Comm ttee foe Chaveal | eharatory Standards: 2003.

NCCLS Docuineert KI-AS. Procedures far the Coleetion of Diagnostic Blood Specuntns by Venipuncture:

op rOwed Manel id, Sth ed Wayne PA tanonal Commitee for Clieid (ihorstory Standards, 2003.

Lavelt M, Sort CH ond Hurtin GL Evaluation of evacuated blond cnitnetion tudes: tHects of dace

af polymere seoaralors on Thasapeitie chug enanitonag specimens Che Chom 1993, 19:17) 1717.

Quequpla &, Dear R, Salona S. Mingman Cad fic auton RYE Abscnption of therape mic drugs by

DAMIR QS IR Sern separator hoor conection tuber. An J Cio Rath 1994: 1012456461.

Yaw HP, (qe C and Dale |. Prothordber tne, one tule: or two? Am 1 Ci Path 1996: 105:794.97,

Gotthard, EL ord Aciach:, WIM Prothrombin tre (PT) amet actecated partial prodwomiia were (APTT) can

be nevfoarad on the fi st tube, Ary 1Cia Park 1997, 107-681 683

NCCLS Doewre-4 H2T-Ad Collectien, Treaigpent, ant Peecets vg of Bivod Specinnens for Conrpéntion

ievting ren Fertormance Gt Coagulation Assays: acpieved quick Fw, duh rd Wearyne, PA: Harkina

Comanittee fea Cum ctl Laboratory Standeds 2009

Instructions for Removal of lnstructions for Reinsertion of

00 Nemogard™ Closure 8D Hemogard” Closure

a | eee Re Ae tp the BD Vsauiawier® Take with eae ned. pil ng chee (Mand winder toa, BO ~~ a” fe a

“s ae ‘ i PF ’ Heupel * Chisute. Sur aeitedt ctabiliny, place em an sobid surtace) With the cties I rt a

bide bi ie. t 5 hared, tae sc the MRD biewrenepscn’ Choome while siemabaniecnsta pr! icy abs ath he thayonds ‘ee oi}. seedy

7 | | | oh the ober haru OMY LINE THE TURE STOPPER i$ LOUSE MEO '

| ’ 12 Nove thumb away iden: fitone: cfm, 00 HOT se Drum lo pst cloner 0! tate. beaks ef

OR ‘2 \3 Caution: Any ylis lube has the potential to crack or break. 17 the tube . Ons

~- - + contains bivod, an exposuer hazard caists Fo help peer ues dueiy Certecetee s+» 0.» area

tlowute heme, ("9 anpestant inal the thyen wed te jars unerea oF Ihe clo we Ue | Replace cian aver whe.

romuved farm vemtaut wth the tue ar sham a the BD tlemanzig Clo iute +5 kaqeeved 2 Tat act pe dows Firenly until stopper 1s fully seseancd

J. UM dasune off babe, (9 aoe unite t, cven! oa the plastic shatd separating; “rctn the euler Compact: reneertion of the stopper 1s necessary tor thy

stegipe, DO WOT REASSESARIE CA OSIME. Conrfuity vetiarve tuber stegisys fram (ut Clenere to remam seccaely ca the tube during haunllang,

rn Symbol Key: . ’

D worm wad Mosnewe 0 Me eo oe ee TIE cared tecwrgt ne ion ioe ! toeyh thy he Wh Cae fee oe tnreaon |

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2 ont REF CrAgttmine SHURE] AT Methoe co Ger lee oe ade ge darn Teal Polemgwe tori ty beep Pan; hee “enlghn i et arto? Naseer ons

HE] hive {itaar) ew Tah, Meetat mm wertome ing Sor my Mert Ga fovn Lngyrens «orl Nie ae it ‘ea tnd yo Separ bint ¢ Teper i

' ce) Herr dared oe (EPR) ther vo roe icra A CRs Ci Re Oe ah terndbt bey !

AGie*, 80, ReMiver inetentriad Eptate Phrrayt! Pe TERK aad OY, Frgedtio pabes, i OMI LISA

BD. GD Gaye od caer W ederests mae prnmenty Co ete Ub uinges, and Lorpery C2008 UE Pate Sea = T0626, 299198 cry rege yt Ao oi et wih»

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.