DUI Case Botched by Blood Mix-Up

Nick Bergamo knew he wasn’t drunk when police pulled him over for driving under the influence. But when his blood alcohol test came back from the Los Angeles Police Department’s crime lab, it showed he was nearly twice the legal limit.

That couldn’t be, he told his attorney. So his attorney hired a private laboratory to test the blood sample. Again, his blood alcohol level was recorded at well over the legal driving limit.

Bergamo, a 20-year-old Loyola Marymount College student, was emphatic that the tests were wrong. As his case moved closer to trial, Bergamo and his parents convinced his attorney to perform a DNA test on the blood sample, a highly unusual step for a DUI charge.

The result: The blood belonged to another man.

The findings vindicated Bergamo and raised questions about the LAPD’s handling of blood evidence -- an issue that embarrassed the LAPD during the 1994 murder trial of O.J. Simpson.

“I was floored when the results came back,” said Lane Scherer, the lawyer who represented Bergamo. “A mistake like this is a big, big deal.”

Scherer said the implications of the mix-up may extend beyond this one case, noting that blood tests generally are tested by labs in batches. “So if you mess up one, the others might be wrong as well,” she said.

If Bergamo got somebody else’s blood, Scherer said, didn’t it make sense that somebody got his?

Police officials said they are investigating how the mix-up occurred and who is responsible. But, they said, they are fairly confident that the lab did not make a mistake. One possible explanation, they said, was that the blood was mislabeled when it was initially drawn by nurses at the LAPD’s jail intake facility in Van Nuys.

“We’ve got to figure out what happened,” said Cmdr. Gary Brennan, the department’s spokesman. “We’re not dropping this. We want to know what occurred just as much as anybody.”

As part of the department’s probe, LAPD criminalists said they also will have the blood sample tested at a private DNA lab, to make sure that Bergamo’s attorney or lab weren’t the ones who made the mistake.

Where’s Blood Sample?

A lab official said seven other blood samples were tested at the same time as the sample identified as Bergamo’s. All eight of them, the official said, had blood alcohol levels well above the legal driving limit. Now, however, police don’t know what really became of the blood sample taken from Bergamo or whether it was even tested.

According to the police report of the incident, LAPD officers spotted Bergamo around midnight on May 25 speeding southbound on Shoshone Avenue near Rinaldi Street in the San Fernando Valley when they decided to pull him over.

Officers said they smelled alcohol on Bergamo’s breath, saw that his eyes were bloodshot and heard him slur his words. They asked him to step out of his truck so they could conduct a field sobriety test on him. After a series of tests, which the officers said he failed, Bergamo was arrested.

Bergamo, his attorney said, disputed nearly every aspect of the police report, from the street where police said they pulled him over to his performance on the sobriety tests. A passenger in Bergamo’s car was prepared to testify in Bergamo’s defense if the case went to trial.

Though Bergamo was adamant that he was not impaired by alcohol, his attorney declined to say whether the young man had had any alcohol before getting behind the wheel. Any alcohol in his blood would have been illegal because Bergamo is under 21, the state’s legal drinking age. Bergamo declined to talk about the case, but released a prepared statement through his lawyer.

“I was not under the influence at the time the officers stopped my vehicle,” Bergamo said. “I feel the police report is grossly inaccurate.... This has been a very painful and disheartening experience.”

Drunk driving offenses can have significant ramifications for motorists, from jail time in cases that result in injuries to a year’s suspension of a driver’s license. Car insurance rates also go up dramatically for years after such convictions.

With the stakes so high, Bergamo’s parents sought out the law offices of Lawrence Taylor, a firm that deals exclusively with DUI cases. Lawyers in that firm automatically retest blood samples tested by the police.

Taylor, who has written books on the subject of DUIs, said test results from police labs are often unreliable. Sometimes the equipment is not calibrated correctly, he said, or sometimes police put too much or too little of a blood preservative in the sample, which can affect results.

“I’m not a real big fan of crime labs and their criminalists. They’re clueless. But most attorneys know less, and that’s why they can get by,” said Taylor, who assigned Scherer to represent Bergamo.

In Bergamo’s case, the test results from the LAPD showed that the blood alcohol level in the sample was 0.148. When Taylor’s lab performed the test, the results were 0.13. For Bergamo, even the retested results seemed impossible. His attorney then conducted a blood-typing test to determine whether it was Bergamo’s blood. That test failed to exclude him as a possible donor.

DUI Case Dismissed

The young man, however, was insistent that a mistake had been made. A DNA test was his last hope to prove it. His parents agreed to pay the additional expense of such a test, which runs about $1,200.

The results finally cleared Bergamo. A judge earlier this month dismissed the case and made a factual finding of innocence on his behalf.

Since the dismissal, word of Bergamo’s case has spread among local defense attorneys in court hallways and legal chat rooms on the Internet.

“DUI practitioners dealing with blood analysis should be aware that crime labs continue to fail in their chain-of-custody record keeping,” Taylor warned other lawyers in a recent e-mail message. “And the LAPD apparently remains a prime culprit.”