The Colorado Department of Public Health and Environment (CDPHE) put out information that as of April 20, 2012, “no retest has resulted in a lower actual BAC than was originally reported.” This affidavit was sworn to by Cynthia Burbach, the Toxicology Lab Supervisor. We have learned that this information is not correct.
We received a report of the retest of one of the blood samples Mitchell Fox-Rivera originally tested. The original test, which Fox-Rivera analyzed on November 4, 2011 had a BAC of .218. The retest which was done by another CDPHE analyst on April 6, 2012 had a BAC of .199. So we know of at least 1 case where the retest was lower than the original test.
It is concerning that an affidavit was signed two weeks later that no retest has resulted in a lower BAC than the original test. This calls into question the accuracy of the information coming from CDPHE and whether Mr. Fox-Rivera did not follow the proper procedure in using a lower volume of blood than called for by CDPHE’s protocol.
We have requested that CDPHE produce documents for us to review under Colorado’s Open Records Act. We will provide a summary of those documents after we receive them later this week