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BAC in Boy Scout death case could have been contaminated, expert says

Steven Politi, defense attorney for Thomas Murphy, spoke Monday about the forensic toxicology expert who testified that the blood-alcohol level of Murphy — the man charged with driving drunk into a group of Boy Scouts, killing a 12-year-old — could have been contaminated, causing it to spike well above the legal limit. (Credit: James Carbone)

A forensic toxicology expert testified Monday that the blood alcohol level of a Holbrook man charged with driving drunk into a group of Boy Scouts, killing a 12-year-old, could have spiked above the legal limit due to contamination or improper handling.

The testimony of Dr. Jimmie Valentine, a former pharmacology professor at the University of Arkansas, College of Medicine, came on the same day that Judge Fernando Camacho announced that he was dropping four of 16 charges against Thomas Murphy, citing a lack of conclusive evidence that his BAC was high enough to sustain the counts.

Valentine told a Riverhead jury that a blood test showing Murphy's BAC at .13% — above the legal limit of 0.08 % — and taken nearly four hours after the crash may not have been correctly administered. He also cited concerns with how it was stored, transported to the Suffolk County Medical Examiner's Office and examined by a county toxicologist.

"If the sample is not stored or collected properly, it could have problems," said Valentine, a consultant who has run several toxicology laboratories.

Prosecutors contend that Murphy, 60, spent the morning of Sept. 30, 2018, drinking vodka with three friends at the Swan Lake Golf Course before driving his white Mercedes SUV over a white fog line along the shoulder of David Terry Road in Manorville and crashing into a group of Scouts from Troop 161. The crash killed Andrew McMorris and injured three other youths.

Murphy refused repeated requests by police to take a Breathalyzer test at the crash scene, and authorities eventually obtained a warrant from a judge to collect his blood.

But Valentine, of Bellport, Mississippi, attempted to raise doubts about the accuracy of the blood test, arguing that it does not prove Murphy was intoxicated at the time of the crash. 

For example, Valentine said the blood test has a margin of error that would allow it to dip from 0.13% to 0.11%.

And other factors — from Murphy's medical condition to the potential contamination of the sample by microorganisms — could cause the blood test to show a falsely high alcohol reading, he said.

Steven Politi, Murphy's defense attorney, introduced several potential factors Monday that Valentine agreed could have caused the elevated BAC test.

They include whether Murphy's arm was properly sanitized before blood was drawn; if preservatives added to the blood to avoid clotting were properly mixed; and the fact that the blood sample was not refrigerated for more than five hours.

"Refrigeration retards bacterial and fungal growth," Valentine said, adding that blood should be refrigerated immediately to prevent contamination.

But Assistant District Attorney Brendan Ahern, chief of the Vehicular Crimes Bureau, cited a pair of recent studies that showed that a failure to refrigerate blood samples had no discernible impact on the alcohol content in the sample.

Valentine also raised concerns about the blood kit's chain of custody; potential errors in how the blood was transferred into another tube at the medical examiner's office; and the calibration of the machine used to conduct the test. Murphy's low blood sugar levels and recent heart problems could also make him more prone to bacterial and fungal infection, potentially allowing microorganisms into the blood, Valentine said.

And Valentine suggested that the toxicologist who conducted the BAC test could have been influenced by conversations she had with law enforcement officers and the district attorney's office.

"It introduces bias," he said of the conversations.

Ahern countered during cross-examination that Murphy's behavior driving on the road and at the golf course on the day of the crash was indicative of his intoxication.

Valentine agreed that alcohol consumption can affect a driver's motor skills, reflexes, depth perception, willingness to take risks and inhibition levels.

Ahern pointed out that one hour before the crash Murphy shot a pair of cellphone videos on the golf course in which he expressed deep love for his friends while slurring some of his words. Valentine said slurred speech typically begins with a BAC of at least 0.10%.

Earlier in the day, Camacho dismissed four charges against Murphy: aggravated vehicular homicide, first-degree vehicular manslaughter, first-degree vehicular assault and driving while intoxicated. The charges relied on prosecutors proving that Murphy's BAC was at least 0.18% at the time of the crash.

Dr. Michael Lehrer, Suffolk’s chief toxicologist, testified last week that he used a scientific technique known as retrograde extrapolation to determine Murphy’s BAC was 0.19% at the time of the crash. But under cross examination, Lehrer revealed he had prepared notes — which were not turned over to the lawyers for both sides, as the law requires — showing that based on the margin of error, Murphy’s BAC could have been as low as 0.17%.

Camacho let stand 12 other original charges: two additional counts of the top charge, aggravated vehicular homicide, second-degree manslaughter, second-degree assault, two counts of third-degree assault, reckless driving and second-degree reckless endangerment.

Even after Camacho dropped the four charges, Murphy still faces the same potential prison sentence — 8⅓ to 25 years if convicted of the top count. 

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