State's breath test expert sentenced to a year in prison

Dee Wallace, the disgraced breath test machine technical supervisor, who filed fake maintenance records on the Intoxilyzers under her watch, was sentenced to a year in prison yesterday. It is estimated that some 4,000 DWI convictions in Harris and Galveston counties could be affected by Ms. Wallace's deceit.

While there may be some solace in the fact that Ms. Wallace is reaping her just rewards, those who were victimized by her lies must go through the process of filing writs and obtaining court orders to recover the money they spent on fines, court costs, probation fees and surcharges.

I'm still troubled by how easy it was for Ms. Wallace to manipulate the system as long as she did. The problem is she was the one who got caught. How many other technical supervisors monkey around with their maintenance records? Ms. Wallace got away with it as long as she did because she handled a number of machines in two counties on a contract with the Texas Department of Public Safety.

If it's that easy to manipulate the maintenance records, how hard would it be to manipulate the machine? There's a reason the State of Texas tells CMI not to ship an operator's manual with the machine. There's a reason CMI fought tooth-and-nail to keep from having to turn over the Intoxilyzer's source code.

At the end of the day, can you really believe anything that comes out of that machine?

You call this an intelligent waiver?

Down in Galveston County, the misdemeanor judges are fond of telling citizens appearing before the court for the first time that they have three options: they can hire an attorney, request an appointed attorney or talk to the prosecutor about their case.

Of course it's done in such a casual manner that most first-timers have no idea what their rights are nor what they're being asked to waive.  Typically the judge will inform the citizen that they have been charged with either a Class A or Class B misdemeanor and tell them the range of punishment. Then the judge gives them the options.

At no time does the judge inform the citizens that the Sixth Amendment to the U.S. Constitution affords them the right to counsel, the right to trial by a jury of their peers and the right to confront the witnesses against them. At no time does the judge inform the citizens that the Fifth Amendment affords them the right to remain silent or that anything they say to the prosecutor can, and probably will, be used against them. At no time does the judge inform the citizens of the protections against unreasonable search and seizure afforded them by the Fourth Amendment. 

In short, at no time does the judge give the citizens all of the information they need to make an informed decision about how to handle their case.

I was recently retained to obtain post-conviction relief for a citizen who pled guilty to driving while intoxicated as a result of a breath test result that has since been ruled invalid. He pled on his first court appearance without ever having consulted with an attorney. He pled based on statements made to him by the prosecutor. He pled without having seen the formal charge against him, reading the offense report, examining the breath test slip and maintenance records, or watching the video. In short, his plea was the result of fear and ignorance, not a knowing and intelligent waiver of his basic constitutional rights.

Forensic "science" under fire

According to the New York Times, a report to be issued this month by the National Academy of Sciences will be a "sweeping critique" of many forensic methods, such as fingerprint analysis, firearms identification, bite mark and blood spatter analysis, used in crime labs across the country.

According to a draft copy of the report, these analyses often are conducted by poorly trained lab workers who then testify to exaggerated accuracy of their methods. The report will call on Congress to establish a federal agency to ensure the independence of forensic analysis, most of which is conducted in labs under the control or authority of law enforcement agencies.

I'm sure that every defense attorney in the country is waiting for this report to come out. There are going to be challenges to fingerprints and firearms evidence and the general lack of empirical grounding. It's going to be big. -- Unnamed source

The F.B.I. had to shutter its bullet identification program after the pseudo-science behind the analysis was discredited. The F.B.I. was forced to notify hundreds of citizens who may have been convicted wrongfully as a result of the "evidence."

The Innocence Project turned over the results of a study performed on the trial transcripts of 137 convictions that were later overturned. In 60% of those cases, false or misleading statements were made regarding blood, hair, bite mark, shoe print, fiber and fingerprint analysis.

According to Stanford University scientist Donald Kennedy, who helped choose the authors of the report, the National Institute of Justice, the research arm of the Department of "Justice," refused to finance the study -- because they knew what it would conclude. Congress later voted to provide $1.5 million to fund the project.

"My hope is that this report will provide an objective and unbiased perspective of the critical needs of our crime labs." -- Sen. Richard Shelby (R. Alabama)

Here are a few examples of the sad state of forensic scientific analysis:

• The H.P.D. Crime Lab was shuttered due to a series of scandals. An independent auditor authored a report in 2007 severely criticizing the practices and procedures followed by the lab.


• Dee Wallace, a contractor with the Texas D.P.S., who testified in support of the state's breath test program falsified documents regarding maintenance work she never performed on the machines under her control. The Galveston County District Attorney's Office recently had to mail out notices to over 2,000 citizens whose DWI convictions may have been tainted by Ms. Wallace's criminal acts.


• Forensic "scientist" Joyce Gilchrist who was fired by the Oklahoma City Police Department after it came to light that she faked test results, falsified reports, lied on the witness stand and withheld exculpatory evidence.

To her credit, Harris County District Attorney Pat Lykos has called for the creation of a regional crime lab independent of law enforcement.

As long as forensic analysis is conducted at "crime labs" operated by law enforcement agencies, there will be pressure on analysts to make their findings and conclusions fit the "facts" as determined by the police. Until these labs are divorced from law enforcement, their findings and conclusions will be under suspicion.

Turning up the heat

Life has now gotten tougher for disgraced former technical supervisor Dee Wallace as a Harris County grand jury has returned an indictment against her alleging that she tampered with a government document. The charge, a state jail felony, carries a term of from six (6) months to two (2) years in jail and a fine of up to $10,000.

Harris County D.A. Pat Lykos was quoted as saying "We are working very diligently to ensure that only lawful evidence in introduced in court." I don't see the D.A.'s office offering those same assurances to the citizens I represent in the county courts. I guess it pays to have been on the state's payroll (even though she stole taxpayers' money while on it).

At some Ms. Wallace will also be called upon to answer to Galveston County for her criminal acts of faking maintenance records, filing false affidavits (DIC-56's) with the DPS and lying on the witness stand.

The Galveston County D.A.'s Office has begun the process of notifying thousands of citizens that some of the evidence upon which their convictions were based is tainted. Should you receive one of those letters, contact my office so that we can take the first steps to restoring your reputation.

See also:

• State's expert faked Intoxilyzer maintenance records (Oct. 24, 2008)


• Update on faked intoxilyzer records (Oct. 28, 2008)


• More fallout from the intoxilyzer mess (Oct. 29, 2008)


• What about aggravated perjury (Nov. 13, 2008)


• A further update on the intoxilyzer scandal (Nov. 18, 2008)

A further update on the intoxilyzer scandal

I have an 80-something year-old client down in Galveston County who rear-ended another driver in the middle of the day and was arrested for suspicion of DWI.  Due to his age (and condition) he was unable to perform field sobriety tests at the scene.  He did, however, blow into the officer's portable breath test machine - his BAC was .18!

At the station my client blew a .13 into the state's breath test machine.  A breath test machine maintained by none other than Dee Wallace.  As a result of Ms. Wallace's filing false maintenance records on the machines under her control, the Galveston County DA offered to reduce the charge to reckless driving.

This was a result we achieved because we weren't afraid to fight the case.  There are plenty of attorneys out there who would've looked at the facts and advised their client to enter a plea.

I have spoken to a source who taught with Ms. Wallace back in the 1990's and was told that Ms. Wallace bragged ten years ago that she had an easy job with the state and that she never performed actual maintenance on the machines because of the time and expense of driving to each of the police stations.

If you've been charged with driving while intoxicated and provided a breath specimen in Galveston County, contact Houston DWI attorney Paul B. Kennedy to find out if the machine used to test your breath sample was one of the machines maintained by Dee Wallace. 

What about aggravated perjury?

According to the Texas Penal Code, a person commits perjury if, with the intent to deceive and with knowledge of the statement's meaning, he makes a false statement under oath.  Perjury is a Class A misdemeanor punishable by up to 6 months in the county jail.

A person commits aggravated perjury, however, if the false statement is made during or in connection with an official proceeding and if the false statement is material.  A statement is material if it "could have affected the course or outcome of the official proceeding." Aggravated perjury is a third degree felony punishable by from 2 - 10 years in the state penitentiary.

Per the Texas Breath Alcohol Testing Regulations, the technical supervisor shall provide "expert testimony...concerning all aspects of breath alcohol testing within an assigned area."

In a DWI trial with a breath test, the technical supervisor must take the stand and testify that the machine was working properly on the day the test in question was given.  The technical supervisor must also testify that the machine was maintained properly. This testimony is required to admit a breath test result.  A technical supervisor must also testify as such during a license suspension hearing, but that testimony may be made by affidavit.

As Dee Wallace's testimony was necessary in order to secure convictions based on breath tests, her testimony at those trials was material.  Therefore, not only did Ms. Wallace tamper with government documents, she committed the offense of aggravated perjury, too.

Ms. Wallace's next court appearance is set for December 10, 2008 in the 182nd Judicial District Court.

The case for specific verdicts in DWI cases

In light of the breath test machine scandal involving disgraced former technical supervisor Dee Wallace, the time has come to request specific verdicts on any per se (breath test result of .08 or higher) DWI case.

The general verdict form asks the jury to decide whether or not the citizen accused is guilty of driving while intoxicated.  Although the DWI statute defines intoxication three ways: loss of normal use of mental faculties, loss of normal use of physical faculties and alcohol concentration of .08 or higher - a citizen may be convicted by a non-unanimous decision.  In simpler terms, the jury does not have to be unanimous as to how the citizen was intoxicated, they only have to be unanimous as to whether the citizen was intoxicated.

And this brings us to our problem.  The Texas DPS announced that all breath tests conducted on the machines under Ms. Wallace's watch are now invalid.  Unfortunately, because Texas does not require a specific verdict on a DWI case, it is impossible to know how many guilty verdicts were rendered on the basis of one of those (now invalid) breath tests.  Now it's up to the Court of Affirms to decide that although the tests were invalid, it amounted to harmless error.

With a specific verdict form, however, we could go back and see on what definition the juries relied upon in reaching their decisions.  A specific verdict form would require a jury to reach a unanimous decision as to the method of intoxication, not just the result. This scandal could provide the fuel to make the change.

If you've been arrested for DWI, contact my office today.

More fallout from the intoxilyzer mess

Last Thursday the Galveston County ADA handling my client's DWI case called me and proposed reducing the charge from DWI to obstruction of a highway.  There was no video of my client performing field sobriety tests but there was a .18 breath test.  My client was happy with the offer.

Our case was set for a pretrial conference the following day but my client was unable to appear as she had evacuated from the island prior to Hurricane Ike and had stayed in seven different places in the six weeks that followed.  The case was reset for trial in January with the understanding that we would make arrangements to enter a plea before then.

But then came the startling revelations that Dee Wallace had faked intoxilyzer maintenance records for the machines at eight area police stations for at least the past year.  Due to Ms. Wallace's criminal malfeasance, questions have now arisen on more than 2600 DWI cases.

Once Ms. Wallace was identified publicly as the technical supervisor in question, I placed a call to the Galveston County DA's office.  That call was returned this morning and, after a brief discussion, my client's case was dismissed.

This outcome was achieved because we challenged the state's proof and the reliability of their breath test machine.  It was achieved because we weren't afraid of a .18 breath test score.  It was achieved because we were willing to fight and to do whatever it took to obtain a positive outcome.

If you've been arrested for DWI (particularly in Galveston County), contact my office today.

Update on faked intoxilyzer records

Deetrice (Dee) Henderson Wallace, a contracted technical supervisor for the Texas Department of Public Safety (and the subject of this posting) has been formally charged with tampering with a government record, a state jail felony punishable by 6 to 24 months in state jail as a result of her faking intoxilyzer maintenance records.

Ms. Wallace was arrested on Sunday, October 27 and released upon posting a bond.  She is scheduled to appear in the 182nd Judicial District Court at the Harris County (In)justice Center on Wednesday, October 29, 2008.