Thursday, May 23, 2013

More problems with breath tests up in Conroe

Earlier this month I posted an article about how the Montgomery County DA's Office and the Texas DPS were trying to paper over a colossal screw up in the maintenance of their breath test machines.

While the technical supervisor in charge of the machines failed to perform acetone tests on machines taken out of service in one location and placed into service in another location in violation of the DPS regulations regarding the moving of machines, the DPS contends that it was no big deal because the tests were performed as part of the monthly maintenance routine after the machines were placed back into service.

The problem with that analysis is we're talking about so-called scientific evidence and if breath test evidence is to be admitted at trial, any tests must be performed in accordance with the DPS regulations. As the machines were not properly tested before being placed back into service, according to the DPS regulations, the machines were never placed back into service. Therefore any breath test result from any one of those machines should be inadmissible since the machine wasn't in service at the time of the test.

Prosecutors just love scientific evidence because it gives them a short cut to obtaining convictions. Once a jury buys that the evidence is "scientific," they can choose to hang their hats on it and call it a day early. But, if you want to play with that sword, it's two-edged and that second edge is that the evidence is inadmissible if the tests weren't done right.

Of course that still relies on a judge to make the proper ruling when he knows the test result is over the per se limit of .08.  That's when you find out whether that judge is more interested in results or process.

But that's not all as the DPS has suspended Technical Supervisor Glenn Merkord for 30 days for improperly renewing the certification of breath test operators who failed to meet the qualifications for recertification. This now raises the question of who those breath test operators were and whether they administered breath tests during the time they were wrongfully certified.

According to Warren Diepraam of the Montgomery County District Attorney's Office, the officers in question are a sheriff's deputy named Buckner and a Magnolia police officer named Salmassi. 

If a test was administered by someone other than a certified breath test operator, then the results of that test are inadmissible. Now we need to know when the DPS learned of Mr. Merkord's actions and what, if anything, has been done to correct the problem.

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