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VANCOUVER—When Jan Semenoff worked as a Saskatoon police officer from the 1980s to the early 2000s, he was often first on the scene of serious car crashes involving people suspected of driving under the influence of drugs or alcohol.

After making sure everyone involved had gotten medical care, he would begin the DUI investigation. Semenoff would work with health-care professionals, often in hospital emergency departments, to check for alcohol or drugs in a driver’s system.

“We’d get a sterile blood kit to do a blood draw. The first step of the procedure was always to check the expiry date on the kit,” he told the Star.

He has since segued to a career as a forensic criminalist, a field that applies scientific principles to crime analysis. He is the long-time editor of Counterpoint, a journal about science and the law, and has served as an expert witness for hundreds of DUI court trials across North America.

Semenoff was shocked to learn from the Star’s investigation that some Royal Canadian Mounted Police officers were using expired equipment to take blood draws from suspects. Although he hadn’t worked for the RCMP, as a veteran municipal police officer and expert witness, he hadn’t heard of such incidents in the past.

But for Vancouver defence lawyer Kyla Lee, cases where RCMP admit to using expired blood collection kits have become a regular occurrence. She has handled more than 20 such cases in the last several years.

“Police say so in their disclosure statements, but don’t include a reason for why they used expired equipment,” said Lee, who has specialized in impaired driving issues since 2012.

“Rather than invest resources into tracking and monitoring blood collection kits, to know when they are going to expire and replenishing supplies, the RCMP continues to use these expired kits. They seem to have an ‘it’s better than nothing’ approach, which is terrible scientific practice,” she said.

There is low public awareness about this issue, Lee says, because only a tiny fraction of impaired driving cases make it to open court trials, with most cases dismissed or settled out of court, while stigma around impaired driving keeps people quiet.

Blood draw kits are used most often in cases involving serious injuries from a crash, while following less serious collisions, it is more common for police to ask suspects to blow into a breathalyzer.

“I’ve had clients who tell me they had two to three drinks and waited a couple hours before driving, and then they got these blood-test readings that were insanely high, saying they had 250 mg of alcohol in their bloodstream when the legal limit is 80 mg.

“It doesn’t match what they said they had to drink, but they’re terrified to speak out because they worry friends or coworkers will learn they got these charges and will blame them, or won’t believe them and they could lose their jobs,” Lee said.

The Star approached several of Lee’s clients with interview requests, and all declined out of fear of social stigma and professional repercussions.

In a statement to the Star, an RCMP spokesperson confirmed that if only expired kits are available, officers are allowed to use expired equipment to process drug or alcohol readings.

“As part of training, RCMP officers are taught to check all equipment and replace as necessary. Should there be no alternative kit available … there may be occasions where it may be necessary for an expired kit to be used, however these would be highly unusual,” the spokesperson said. She said data for the frequency in which RCMP officers have used expired kits in Canada was unavailable.

Across the country, RCMP blood draw kits are stored at police detachments and carried by officers in their duty bags to be used when required, with the assistance of a medical professional, usually in a hospital setting.

The spokesperson said RCMP officers responsible for policing small and remote communities throughout the country may not have access to replenished equipment.

“In these areas, equipment that may not be used with great frequency, like blood demand kits, may not be refreshed as quickly as they would be in a larger centre,” the spokesperson said, citing information from the national headquarters of the RCMP.

But experts say supply or logistics issues shouldn’t be an excuse for using expired products in a police investigation, since doing so clearly compromises evidence.

“These tubes are vacuum-sealed, but manufacturers set expiry dates because the tubes aren’t designed to stay sealed indefinitely,” Semenoff explained. “If the tubes become contaminated, fermentation could occur which can lead to increased blood alcohol concentration readings.

“Any use of expired blood tubes compromises the reliability and the integrity of the police investigation,” he added.

Furthermore, Lee said a third of her clients who were tested with expired blood kits were actually arrested in Metro Vancouver, while others lived in mid-sized cities like Kamloops.

“Even if there are limited resources in rural and remote areas, there shouldn’t be a different scientific standard created just to prejudice people living in those communities,” Lee said.

The leading American manufacturer of vacuum-sealed blood collection tubes, BD Life Sciences, which provides equipment for RCMP investigations in Canada, confirmed that it affixes expiry dates on each kit it sells.

A company spokesperson told the Star that the average shelf life of its “BD Vacutainer” blood collection tube products is 12 months, and the expiration dates are marked on each item lot.

“I would advise against using past the dates,” the company representative said.

Lee says that the expense of bringing forth court challenges and the scarcity of relevant expert witnesses are other factors that support the continuation of the questionable scientific practice in law enforcement.

In an unusual 2013 instance where an impaired driving case was heard by the Supreme Court of Nova Scotia, in which the defendant was found guilty, a police officer testified that an expired blood kit “did not affect the blood sample” since a weakened vacuum seal would only affect the volume of blood drawn into a tube.

The officer’s claim was not interrogated in court. At the time, scientists had already published studies, including a 2009 analysis of factors affecting blood tubes’ stability, which explained why the equipment typically has a shelf life of 12 months.

“Tube material, additive stability, and environmental conditions impact the expiration dates of certain tubes. It is important to store evacuated blood collection tubes under the conditions recommended by the manufacturer to assure an accurate draw volume and clinical results over the shelf life of the product,” the report said.

The Star was only able to find documentation in B.C. showing a health authority addressing the use of expired blood sample equipment in police investigations, although the RCMP works with health workers across the country.

The Provincial Health Services Authority (PHSA), the government agency in charge of setting and enforcing health service policy in B.C., does not object to health workers using expired blood equipment when staff assist in police investigations.

It described the practice in a November 2019 internal bulletin, reviewed by the Star and verified by a PHSA spokesperson, as authentic.

In the bulletin, the authority described the practice of using expired collection containers for blood draws in DUI cases.

“The RCMP Integrated Impaired Driving Unit (IIDU) instructs officers that the expired collection containers should not be an impediment to the blood draw. The British Columbia Impaired Driving Reference Manual issued to police enforcement officers also states that ‘EXPIRED KITS can be used,’ ” it said.

When the Star asked the spokesperson why the PHSA did not object to this practice even though it contradicted typical hospital policy, the spokesperson admitted to applying a different standard in what it considers clinical care settings and when health workers are assisting police.

“We do not use or recommend the use of expired collection tubes in our clinical care settings,” the spokesperson said.

But although the PHSA also has a responsibility to “oversee and set” health policies across the province, regardless of whether staff are working with another body, it permits the use of expired blood collection equipment when health-care workers are involved in police work.

“Taking a blood sample to be tested for blood alcohol levels is not a clinical or patient care activity, it is support for a police matter … Further questions about the RCMP view on expired collection tubes should be addressed to the RCMP.”

To Lee, the crux of the issue is that RCMP are not prioritizing the monitoring and updating of equipment as needed, even though it is well established that expired kits can affect test results.

“One thousand per cent, it is unorganized. That’s the problem. But the result is that the unorganization negatively impacts people who are accused of serious crimes, and that should never be the case,” she said.

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