Brady Notice – Phlebotomist Casts Doubt on DWI Blood Cases

On December 2, 2016, The Travis County Attorney’s Office circulated a Brady Notice to defense counsel concerning the testimony of a former phlebotomist.  During a trial the Phlebotomist privately disclosed that she had performed DWI Blood draws during the Spring of 2014 and that the facility was unsanitary.  The phlebotomist’s disclosure casts doubt on all DWI blood cases since the blood draws may very well be tainted.  The phlebotomist no longer wishes to testify on behalf of the State.

The Brady Notice provided as follows:

NOTICE OF DISCLOSURE OF POTENTIAL BRADY MATERIAL

On November 29, 2016, during mid-trial witness preparation, the State met with former ProTouch employee Angela Gage. The following information is now disclosed:

• Angela Gage is a home healthcare worker. Prior to that she was a phlebotomist for 10 years.
• During the ten years as a phlebotomist, she was a self-contractor for six years.
• She then worked for CPL Laboratories as a phlebotomist but left that job because she “does not work well with others.”
• She next worked for ProTouch for about four years but no longer works for them because of the hours.
• The State informed her that in the trial for which she was subpoenaed, an officer testified that the phlebotomy room in the Travis County Jail was a “sanitary place.” She responded that the officer “must have been a man.”
• She does not believe the phlebotomy room is a “sanitary place” or that it is the “best place for bloodwork from a medical standpoint.”
• She does not know how often the floors were mopped but does know that inmates swept the floors and emptied the trash.
• She would not eat her dinner off the floor of the phlebotomy room.
• She believed the jail and/or phlebotomy room had an ant problem and she was “pretty sure the County hired a company to spray.”
• Despite her thoughts about the cleanliness of the room, she is very certain that the phlebotomy chair and all items used for blood draws were sanitary.
• She cleaned the chair herself during each shift, so she was able to say with certainty that it was sanitary.
• The blood kits, needles, gloves and all other equipment used for the blood draws were “as clean as all get out.”
• No other phlebotomist to our knowledge has ever testified or voiced a concern to us before, during, or after this time frame about the phlebotomy room not being a sanitary place.

Defendant’s blood was drawn on April 12, 2014 pursuant to a warrant. The blood result was 0.18. The Brady Notice calls into question the reliability of all DWI blood results corresponding to a blood draw taken at the Travis County Jail during the Spring of 2014 (and very likely extends to a period prior to and beyond that time). Any cases that have already been resolved involving a DWI blood draw taken during that period should be reexamined in light of Ms. Gage’s recent disclosure.  These blood results are tainted.

Kudos to Jennifer Collity for transmitting this to the attention of defense counsel when she first learned about it during trial and to David Escamilla for quickly providing notice to the defense bar.