More than 40 suspected drunk drivers arrested on the DFW Airport property are among those who were tested with blood alcohol test tubes that were later recalled because of a possible manufacturing defect.
An NBC 5 Investigation discovered drivers arrested at DFW and their defense attorneys were not notified that their cases involved those recalled tubes for nearly two years. Tarrant County prosecutors made notifications to the 42 defendants last month, after NBC 5 Investigates learned of the cases and questioned why notifications had not been made
In 2019, BD, the manufacturer of the tubes issued a nationwide recall of more than 247,000 tubes. BD says about 1,500 tubes in that lot of 247,000 were missing a preservative powder which ensures that the blood alcohol level will remain stable and accurate when it's tested.
In July, NBC 5 Investigates uncovered records showing 2,760 cases in Texas where one of the recalled tubes was used by police in a drunk driving arrest
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That includes the 42 cases where the arrest was made by DFW Airport Police.
The DFW Airport cases were listed in lab records provided to NBC 5 by the Texas Department of Public Safety. DPS labs tested those blood samples collected by the airport police.
E-mail records show the DFW Airport Department of Public Safety quickly realized it has already used some of those recalled tubes – when the recall was first issued in 2019.
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Through an open records request, NBC 5 Investigates obtained an email sent from a DFW Airport Police sergeant to the Tarrant County District Attorney’s office in July of 2019. The sergeant told the DA’s office he was, "worried about previous cases as all our blood draws, since we switched to DPS lab, have been with kits included in the recall."
In a statement, DFW Airport Spokesman Bill Begley told NBC 5, “DFW Airport Department of Public Safety notified the Tarrant County DA’s office of the concern involving the DPS test tubes in question on July 18, 2019.”
But the Tarrant County DA’s office did not notify people arrested in those cases until July of 2021.
Last month, the DA’s office began sending disclosure notices to defense attorney's representing the drivers involved after NBC 5 Investigates asked why notifications had not been made.
A spokeswoman from Tarrant county initially told NBC 5 they were not aware that those DFW Airport cases involved recalled tubes.
NBC 5 Investigates asked the DA’s office why it took so long to notify defendants arrested at DFW.
A spokeswoman emailed a short statement saying," It is our legal obligation to notify the defense about the existence of these tubes, which we have done and continue to do.”
The statement also said, "In Tarrant County we have never had a lab notify us that any defective tubes were actually used for blood alcohol determinations."
But forensic experts tell NBC 5, once blood is in the tube there's no way for a lab to tell if there was preservative powder in the tube before it was used. Only the person collecting the sample at the time of the test would be able to observe the powder in the tube.
Defense Attorney Frank Sellers, who represents one of the drivers arrested at DFW airport argues the use of those tubes casts doubt on the test results.
“Where were we on the spectrum at the time it was tested? Was it on the way up? And then it peaked sometime in the tube in vitro and then came back down or, you know, how do we have any trust in the finality of those results,” questioned Sellers.
If the preservative is missing, scientific studies have shown the blood alcohol level would most likely go down and not up. But in its recall notice, BD said it is possible the blood alcohol level could rise or fall.
It's unclear what will happen to the cases involving those tubes. Some drivers have already been convicted - but could appeal their case. Other cases are still pending, and defense attorneys may now use this information to challenge the results.
BD says problems with the tubes were immediately corrected in 2019. If any of those tubes are still out there -- they would be expired by now -- so police can avoid using them simply by checking the expiration date.