More breath test shenanigans

If you have been a long time follower of this blog the name Dee Wallace should ring a bell. She was the technical supervisor in charge of breath test machines in the Houston area who faked test and calibration data.

Now there's a new name to add to the Forensic Hall of Shame. Let's say hello to Marianela Martinez, late of the League City Police Department. It seems that Ms. Martinez had a contract to oversee the breath test programs in League City and several other small towns in southern Harris County and in Galveston County. It would also appear that Ms. Martinez also participated in creative maintenance of breath test machines.

Ms. Martinez was fired last month for unsatisfactory job performance. In a detailed write-up, the Chief of Police for League City, Michael Kramm, set forth a laundry list of problems with Ms. Martinez' job performance over the years. Interestingly enough, Ms. Martinez received excellent mark-ups in her annual job evaluations - even though she was doing piss poor when it came to audits of her work from the State of Texas.

According to Mr. Kramm

"Documentation from State auditors and regional supervisory staff demonstrated lengthy down time for instruments under the care and control of Martinez. Audit documentation demonstrated a pattern of poor time management, last minute inspections, poor record keeping, missing maintenance records and deficient hardware/technical knowledge on behalf of Martinez."

Ms. Martinez was afforded a great deal of latitude with respect to running the breath test program in League City. No one looked closely at DPS audits when it came time to reviewing her job performance. It wasn't until someone higher up the chain of command began looking into problems pointed out by the audits that anyone gave her performance a second thought.

In addition to her failure to maintain the breath test machines under her control, Ms. Martinez also failed to calibrate and prepare the new Intoxilyzer 9000 machines that were to be put into service in her area.

Keep in mind that the estimations from these machines were used in drunk driving prosecutions. We have no way of knowing whether any of the machines used to test those breath samples were in proper operating condition. We have no way of knowing whether they were properly maintained. And but for Ms. Martinez' bumbling inepitude with the roll out of the Intoxilyzer 9000, we might never have found out she wasn't doing the job she was supposed to be doing.

This is the problem with breath testing. These machines are placed under the control of persons who are rarely held accountable for what goes on under their watch. It's only years after a problem was discovered that we find out what went on behind the curtain.

This is the primary problem in leaving these forensic "tools" in the hands of the people who are doing the arresting. There is no accountability - until it's too late. There is a built in bias on the part of the folks who maintain these machines since they get their paychecks from the same agency that arrested the test subject in the first place.

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.

  DPS Letter to Glen Merkord

Something's rotten up in Conroe

Texas DPS Standard Operating Guidelines for Technical Supervisors 

1.1 An official inspection by a Technical Supervisor can only be conducted at the evidential testing location. Each part of the inspection shall occur at the testing location and includes not only the instrument, but the associated equipment and the testing environment as a whole. 

     1.1.1 The capability of the instrument to detect and subtract the effect of acetone shall be tested. 

1.2 A complete inspection (1.1) shall be performed by a Technical Supervisor each time an instrument is placed into or returned to service at a testing location.

According to Chapter 37 of the Texas Administrative Code, for a breath test result to be admissible it must be conducted per the rules set out by the Texas Department of Public Safety. Should these procedures not be followed, the results of breath tests can be thrown out and machines can be taken out of service.

The DPS rules state that anytime a technical supervisor inspects a breath test machine, he or she must conduct a test to determine whether the machine is capable of detecting acetone. The rules state further that an inspection must be conducted every time a breath test machine is placed into service.

Well, up in Montgomery County, someone forgot to read the rules. According to a memo sent out to the local defense bar by the District Attorney's Office, acetone checks were not performed on breath test machines that were taken out of service and moved to another location.

Here is the text of Warren Diepraam's memo regarding the failure of technical supervisors to follow proper protocols:

It has recently been brought to our attention that the Intoxilyzer instruments in Montgomery County did not receive acetone checks when the devices were taken out of service and transferred to another location. This appears to be contrary to DPS guidelines. DPS informs us that because all instruments received acetone checks when placed back into service at the new location and also received the standard acetone checks each month, they do not believe the testing has been affected. However, DPS is conducting an analysis to determine whether or not any test may have been affected. 

At this time, we have no reason to suspect that the tests in any cases were affected. However, should DPS find any irregularities, we will immediately contact you. Should you have any cases that you feel were affected by this SOP issue, please contact the relevant Bureau Chief or the First Assistant.

Well of course the DPS doesn't feel that any tests were affected by the failure of their technical supervisors to follow their own rules. The cover is that acetone tests were run during routine inspections and no problems were indicated.

But that's not the issue here. The issue is whether or not the results of those tests are admissible due to the state's failure to conduct the proper tests when called for in the DPS operating guidelines.

Just remember that the state puts forward the results of breath tests as scientific evidence. As such these tests must be conducted in a certain manner and if they aren't, the results are compromised and not admissible. In order to talk about a test score, the state must present evidence that the machine was in service and functioning properly as well as evidence that the breath test was conducted according to the DPS rules.

If the machines weren't properly tested when they were taken out of service then they should never have been considered back in service after they were transferred to new locations. If that's the case then no breath test score from any of the machines in question should be admissible until the proper procedures are followed for removing a machine from service and transferring it to another location.

The Montgomery County District Attorney's Office and the DPS have an obligation to provide the local defense bars with the serial numbers and locations of each machine that was compromised by the failure to follow the SOG's. It should not be up to prosecutors or the DPS to determine whether tests were affected or not - they have an inherent conflict of interest.

The DA doesn't want to have to dismiss cases and agree to post-conviction writs in the cases in question. The DPS doesn't want to open up a can of worms regarding its breath testing program. Allowing them to determine whether all is well or not is akin to letting the fox guard the henhouse.

Bill would impose moratorium on driver surcharges in Texas

Anyone who has dealt with the world of low-level traffic offenses knows the consequences of the Texas Driver Responsibility Program. The DRP imposed surcharges on driver license renewals for certain traffic offenses and suspended legal driving privileges for those who didn't make the payments.

Then, when those same drivers picked up new moving violations their licenses were suspended (again) and more surcharges were imposed. The entire program became a downward spiral that left many motorists with no way to ever regain their legal driving privileges.

Now it appears that relief might be on the way in the form of HB104 - a proposed bill that would place a two-year moratorium on the imposition and collection of surcharges under the DRP.

The DRP was created in 2003 partially as a funding mechanism for trauma centers in the state. The promise was that folks who drove without insurance or on suspended licenses would cough up some money that the state would collect and distribute (hmm, sounds like a tax to me). Over the years, however, the program has not generated the funds lawmakers had expected.

Being that most folks ticketed for driving without insurance or on suspended licenses tend to be on the poorer end of the spectrum, the state has only collected about 40% of the surcharges levied on motorists. So, not only did the program not generate the amount of revenue expected - it couldn't even collect half the surcharges levied.

The bill would allow the DPS to begin imposing and collecting surcharges after September 1, 2013 provided the state had not yet found a mechanism to fund trauma centers at the level they are currently funded. Whether this will encourage lawmakers to come up with a new funding mechanism or just sit on the hands has yet to be determined.

For way too long the state legislature (and governor) have resisted devising equitable mechanisms to fund this state. The sales tax is regressive. The lottery is a scam directed at the poor. The DRP is yet another attempt to impose higher taxes on the poor while reducing the tax burden on the wealthy.

Imposing a moratorium on the DRP rather than abolishing the whole thing may be a baby step - but at least it's a step in the right direction.

Shielding the truth

Later today the Texas Forensic Science Commission will meet in Austin. One of the items on the agenda will be the scandal at the DPS crime lab in Houston involving former analyst Jonathan Salvador who is alleged to have not followed accepted standards when testing for controlled substances. Mr. Salvador is alleged to have "dry-labbed" his tests (not actually running the samples through the gas chromatograph).

As a result of Mr. Salvador's actions, hundreds, if not thousands, of cases are being reviewed. For purposes of disclosure, I have filed two writs in drug cases involving Mr. Salvador.

Of course the DPS is portraying Mr. Salvador as a "lone wolf." That's in the playbook for government offices in which one or more employees have been caught doing something they really, really shouldn't have been doing. By claiming that one (or a small group of) bad apple broke the rules, the department can deflect attention from the signs of systemic problems. We've seen it with police departments when officers are alleged to have committed police brutality. We've seen it once before with the DPS with the Dee Wallace mess. You see corporations hanging executives and managers out to dry to preserve the stakes of large shareholders. We saw it with the bursting of the financial bubble back in 2007.

The problem is that Mr. Salvador was trained by DPS staff and was supervised by DPS staff while he worked at the crime lab off the Northwest Freeway in Houston. The story that it only happened once and that it was a mistake strains credibility. If we are to believe that the motorist charged with driving while intoxicated has done it some 80 times before getting arrested, the odds of Mr. Salvador getting caught the first time he faked a test result are astronomical (about the same as the Astros winning the World Series this fall).

And what are the odds that this problem exists in only one of the state's multitude of "accredited" crime labs? Let's be honest, these crime labs were created by and operated by state and local law enforcement agencies for the express purpose of aiding in the prosecution of crime. They are not independent bodies. They exist to build cases against folks charged with breaking the law. This mission bias covers every task performed in these labs.

The accreditation program was created in order to make it easier for analysts to testify in court as experts. Telling twelve jurors who have no idea how crime labs operate that the crime lab is accredited is a sure-fire way to get those folks believing that whatever test is being described is the "gold standard" in forensic testing.

We're not living in the world of Quincy, M.E. where Jack Klugman did his best to discover the truth without regard to where that path might take him. We live in a world in which the lab analyst gets his marching orders from a supervisor that is an employee of a law enforcement agency with a mission to support the officers' arrest decisions.

The Texas Forensic Science Committee has shown itself to be little more than a showpiece since Gov. Rick Perry emasculated the panel by placing the now-disgraced John Bradley at its helm. Mr. Bradley's sole duty was to bury the investigation into the wrongful conviction and execution (murder) of Cameron Willingham. The last thing the State of Texas wanted was for the public to find out that most of what passes for science in the criminal courthouse is nothing but junk.

It is ironic that over on the civil side of things the courts take scientific evidence very seriously. For the most mundane of cases there may be a Daubert hearing lasting several days before the judge makes a decision on what's coming in and what's not. Both plaintiffs and defense attorneys who try these cases keep themselves well abreast on the state of the science. After all, we're talking about a lot of money in some of these cases.

Over at the criminal courthouse if the state presents a witness as an expert, so long as he can state at some point in his testimony that he's "certified" by someone the judge will sit back, rub his temples with his fingertips and proclaim (like Solomon) that any question of the validity of the science goes to its weight and not its admissibility.

You don't know how the breath test machine works? No problem. So long as you were trained to turn it on and type in the suspect's name you're qualified to testify at trial as to the fact the machine was working. You don't know how that radar or laser device works? Who cares? So long as you were trained to turn it on and point it at a moving car you're qualified to testify that it was working just fine on the day in question. You never took any college level or graduate courses related to arson investigation? You never attended any seminars about the current science involved in arson investiation? So what. Feel free to get up on that stand and testify that the man sitting next to the defense attorney started the fire that killed his children.

All it takes is for one brick to crumble and the whole wall will cave in on itself. That's what the Texas Forensic Science Commission's job is to prevent.

Texas DPS sued over roadside cavity search

On a sultry July evening in Dallas Angel and Ashley Dobbs were cruising around when one of them tossed a cigarette out of the car. The state trooper behind them, David Farrell, flipped on his lights and pulled the women over. But she didn't just give them a ticket for littering.

Claiming that he smelled the odor of marijuana in the car, the trooper asked the ladies if they had anything illegal in the car. The ladies said no. End of story? Not quite.

The trooper then called a female officer, Kelley Helleson, who put on a pair of blue latex gloves and conducted cavity searches on the two women on the side of the road - in full view of passing traffic. According to the women, Trooper Helleson's search was painful and humiliating. She didn't even bother changing gloves between searches.



And guess what Trooper Helleson found?

Absolutely nothing. The driver, Angel Dobbs, then had the nerve to pass the roadside coordination exercises the trooper asked her to perform.

And when it was all said and done, the troopers didn't even apologize to Angel and her niece.

Now the women are striking back. In a lawsuit filed against the Texas Department of Public Safety, the ladies allege they were molested by Trooper Helleson and that the DPS had a long-standing pattern of illegal strip and cavity searches.

To think that this entire nightmare came about because a police officer claimed he smelled marijuana. How many cases have we seen in which a car is tossed based upon an officer supposedly smelling marijuana? So many violations of our rights come about because one officer claims to have seen, heard or smelt something that led him to believe the something illegal was going on.

It's just an excuse. The police pull someone over. They suspect he's got something in the car he shouldn't. They get him out of the car and toss it. Then, lo and behold, they find the Holy Grail. A dime bag in the center console. Throw in that part about the smell of marijuana and BAM! it's a good bust.

There aren't any cameras. There aren't any witnesses. Besides, they found the dope in the car. He's guilty. Who cares if the cops conducted an illegal search?

But this time there was a video. This time there was a witness. And, most importantly, this time there wasn't anything in the car.

All it takes is one stop like that to shed a little light on what really goes down in the middle of the night. A perfect storm of elements and the cops are caught with their pants around their ankles.

It's bad enough that the police get away with lying about their conduct on the street. It's even worse that most judges will take the word of a police officer over a defendant without giving it a second thought. Judges like to tell you that the defendant has a motive to lie - but, berobed one, so does the officer.

There was no excuse for what happened on the side of the highway in Dallas this past July. There is no excuse for what goes on in airports across this nation, either.

There was no probable cause for the search. Trooper Farrell knew that. Trooper Helleson sexually assaulted Angel and Ashley Dobbs. There is no excuse for her conduct. Instead of being on the receiving end of a lawsuit seeking damages, Trooper Helleson should be in criminal court trying to stay out of prison and contemplating how humiliating it would be to have to register as a sex offender.

And, in the end, Trooper Helleson did what she did because she could do it.

DPS makes it harder for immigrants to obtain a driver's license

Starting today anyone who wishes to obtain a Texas driver's license must present proof that they have been residing in the State of Texas for at least 30 days. The 30-day requirement would be waived for anyone surrendering a valid out-of-state driver's license - but they would still have to show proof of residency.

The requirement of a 30-day residency is courtesy of a change to the Texas Administrative Code last April. The change is clearly intended to prevent immigrants from obtaining a Texas driver's license. As many immigrants move in with family members and friends they don't have insurance or utility bills in their names. As many immigrants operate in a cash economy, they don't have bank accounts.

The 30-day requirement only means that there will be more folks out on the roadways who will be breaking the law every time they get behind the wheel to drive to work. It seeks to deprive immigrants of the ability to obtain a valid picture ID.

Instead of creating a group of criminals by fiat, the state should be looking at ways to integrate folks into our society. Regardless of how you feel about illegal immigration, preventing newly arrived immigrants from obtaining a driver's license isn't going to solve any problems. It will just increase the number of people on our roads with a license or insurance.

Who needs a sworn report anyway?

Score one for the Department of Public Safety.

Whenever a motorist is arrested for driving while intoxicated in Texas, the arresting officer must file a sworn report with the DPS referred to as a DIC-23. In that form the officer swears to the information regarding the reason for the stop and probable cause to arrest the motorist.

In Texas there are two ways in which the DPS can suspend the driver's license of a motorist arrested for DWI. Refusing a request for a breath test can net a first-time offender a six-month suspension. Blowing over the legal limit of .08 can get a first-timer a 90-day suspension.

Due to the way in which the laws were written regarding these administrative license suspensions, the officer was required to issue a sworn report on a failure case but not on a refusal case.

Back in 2007, Stephen Caruana was stopped and arrested for driving while intoxicated. Mr. Caruana submitted to a breath test and blew a .016 and a .015, both in excess of the legal limit. As a result, the DPS moved to suspend his driver's license for 90 days.

At a hearing to contest the suspension, the arresting officer testified about the stop and admitted that he had not sworn to his report. Mr. Caruana moved to exclude the officer's report from evidence. His motion was denied and the administrative law judge ordered his license suspended. Mr. Caruana appealed the suspension to the county court which reversed the decision of the administrative law judge. The DPS then appealed that decision to the Austin Court of Appeals which upheld the county court's ruling. The DPS then appealed to the Texas Supreme Court.

In Texas Department of Public Safety v. Stephen Caruana, No. 10-0321 (Tex. 2012), the Supreme Court then determined that there was no need to require an officer to swear to his report because if he lied on it he would be subject to prosecution for making a false statement in a government record. It would be too obvious, of course, to point out that fear of prosecution has never deterred a police officer from submitting an offense report that is more akin to a work of fiction.

The judges on the Supreme Court took a twisted path to come to the conclusion that just because the statute required an officer to submit a sworn report, that didn't make an unsworn report inadmissible. We also have the spectacle of a court made up of judges who supposedly practice judicial restraint invalidating part of a statute in order to reach their chosen conclusion.

Now, there was a big problem in Mr. Caruana's case that set the stage for the Supremes to decide the legislature didn't mean what it said. At the license suspension hearing, the arresting officer testified as to what he observed and why he arrested Mr. Caruana. The officer's report wasn't necessary as the administrative law judge had the officer's sworn testimony as to the events of that evening. In other words, the report (sworn or unsworn) was irrelevant. That, in turn, gave those members of the Court who wanted to uphold the suspension little choice other than to make the ruling they did. Had this been a case in which no testimony was offered (a so-called "paper case"), I think the outcome would have been different.

But, now, thanks to the Supreme Court, a process that was already stacked to benefit the DPS, has become even more so.

A demotion

Now, lest anyone think I'm biased with regard to the unmitigated disaster known as the HPD breath alcohol testing van (BAT van) program, I am now giving the Harris County District Attorney's Office a little equal time. 

This is a statement from the DA's Office dated November 8, 2011 addressing concerns raised about the program:

To the citizens of Harris County,

As many of you know, there have been several news stories regarding the Houston Police Department’s Breath Alcohol Testing (BAT) vans, the evidence they provide, the technicians who perform the work and the Harris County District Attorney’s Office (HCDAO). 

A technician, who is a former employee of the HPD crime lab and supervised the BAT van testing, testified on July 27 and 28 that she believed it is possible that the breath tests conducted by the HPD BAT vans could be problematic. 

August 4, representatives of the HCDAO notified the Scientific Director at the Texas Department of Public Safety—the authority that develops rules and regulations and provides training and laboratory support to local, state and federal authorities for breath alcohol testing throughout the state—of her claims. 

August 11, in a meeting between HCDAO and the technician she stated that she could not verify the accuracy of results of an intoxilyzer instrument that had previously experienced overheating in a HPD BAT van. She said that she could not testify to the accuracy of such intoxilyzer results because this issue had never before been scientifically tested.

August 12, the HCDAO issued a Brady Notice to attorneys to inform them of the potentially exculpatory, or mitigating, evidence raised by the technician and to not allow any HPD BAT van cases to be resolved unless the defendant is made aware of the technician’s comments.

Additionally on August 12, the Harris County District Attorney’s Office requested that the Texas Department of Public Safety’s Breath Alcohol Laboratory conduct scientific tests on the HPD BAT van and the intoxilyzer instruments.

August 23, representatives from the Harris County District Attorney’s Office met again with the technician. At this interview the technician said she believed that all breath tests conducted by the HPD BAT vans dating from summer 2009 - present were suspect because she believed HPD BAT vans were an unsuitable testing location. August 24, the HCDAO distributed a second Brady notice to attorneys alerting them to the technician’s comments.

The Texas Department of Public Safety conducted an Ambient Temperature Study on the HPD BAT van and intoxilyzer instruments that addressed the technician’s concerns. Scientists concluded that the HPD BAT van instruments correctly analyzed breath alcohol concentrations .

October 28, a DWI jury trial was held in a County Criminal Court where evidence was presented in open court about the reliability and accuracy of the HPD BAT vans. The defense presented their position on the reliability of the HPD BAT van instruments. After hearing all the evidence, the jury returned a verdict of guilty.

It is our duty to see that justice is done and to protect the lives, property and rights of our citizens. We respect the rule of law and strive to always do the right thing.

The "technician" referred to is Amanda Culbertson, the former technical supervisor in the HPD crime lab. The statement from Ms. Lykos' office is an interesting exercise in the use of language. Ms. Culbertson is a technician, but the DPS personnel who conducted tests on the breath test machines are scientists.

However, prior to Ms. Culbertson's leaving the crime lab, prosecutors delighted in touting Ms. Culbertson's professional qualifications. She was the scientist in charge of maintaining the machines. According to the Texas Department of Public Safety, she was a forensic scientist. Before a breath test result could be entered into evidence, Ms. Culbertson had to testify that the machine was working properly and that it was reliable.

Now that she's raising concerns over the reliability of the testing program she is a mere technician. According  to the Collins English Dictionary, a technician is "a person employed in a laboratory... or scientific establishment to do practical work." In other words, a mere button pusher.

So, in recent weeks we've been told that HPD isn't trustworthy and that the person who maintains the breath test machines is doing "practical" work. Any more gems for us, Ms. Lykos?

Into the belly of the beast

The other day I had the opportunity to go on a tour of the DPS Houston Crime Lab up on the northwest side of town. I would like to thank Mr. Robert Prince, Jr. for taking me around, not just the facilities in the new building, but also through the old lab next door.

We started off in the old work area. The lab moved earlier this year but there is still some equipment and furniture left across the parking lot (in the blue building you can see from 290). With the dim light and the old equipment lying around, the room looked like the perfect setting for a horror movie or a chase scene in some thriller -- you know, the scene where the girl finds herself running from the bad guy in the abandoned building.

We took a look at the old gas chromatograph which Mr. Prince opened up so I could see the columns inside. He pointed out the injector port, the Y-splitter and the flame ionization detector. I've read about the machines and I've seen pictures in both lectures and in books, but this was the first time I'd ever seen one up close.

As an aside, I'm always amazed when I see a machine that performs a complex task and think about how someone dreamed it up. There is an elegance to the machine. If you understand how it works, when you look at the components you can see a genius at work.

We looked at the old refrigerator where blood samples were stored. We went to the intake room. We saw the room where samples were stored after they were tested. Then it was on to the new building.

As it turns out, through coaching soccer I know a couple of guys who work at the architecture firm that designed the new building. It is a stunning building both inside and out.

Since my ticket to the tour was a court order allowing me to see the machine that my client's blood sample was tested in and the room in which the machine was housed, I didn't get to see the storage areas in the new building.

Mr. Prince showed me how the biological hood worked -- it's almost like something out of Get Smart. I saw the autosampler and he showed me how he seals the vials that are placed in the autosampler for testing. Again, you can read about the process all you want and look at pictures until your heart's content, but it's no substitute for actually looking at the equipment.

The sky is falling! Not.

Last night I ran across a blog post from a criminal defense attorney in North Texas. The post was written in reaction to the Scillitani case that I wrote about on Monday. The article stated that the Texas Department of Public Safety rewrote the regulations that govern breath testing in Texas under cover of night.

Very recently, (and apparently very quietly), the Texas Department of Public Safety relaxed its standards for the instrument certification.  The .02 agreement requirement is gone.  The multiple breath test specimen requirment is gone.  The requirment that the reference sample be maintained at a particular temperature?  Gone. 

The DPS actions immediately raise the question, why?  Why were the above requirements considered so vital to instrument certification for years no longer necessary to ensure a valid and reliable breath sample?   If this is supported by new scientific study that demonstrates the the requirement is not necessary to achieve consistent and valid breath test results, what are they?  Why have they not been publicized?  The technology behind the Intoxilzyer certainly has not changed. As a practical matter, this means that objective observers should have considerably less confidence in the validity and reliablility of the results of the Intoxilyzer 5000 when the standards for instrument certification are quietly stripped away.

That's not exactly true. The regulations (which can be found in 37 Texas Administrative Code, Section 19.4) were last amended in 2006 (Click here for the "old" regulations). No one took out the requirement that the breath test operator note the temperature of the reference solution because that requirement never existed.

Changes were made in the certification process for breath alcohol testing programs in 2006. The regulations were renumbered to make room for definitions.

Nowhere in the "old" regulations will one find a requirement that the two breath samples be within .02 g/210L of each other in order for the test to be valid. That "requirement" comes from the manner in which the machine is programmed to operate. The machine itself will invalidate a test if the two blows are more than .02 g/210L apart (at least if the reported results are more than .02 g/210L apart).

Likewise, there is no requirement that a breath test consist of multiple blows. That, too, has to do with the way in which the Intoxilyzer 5000 is programmed to operate.

I do find it disturbing, however, that, when discussing the requirement that the predicted and actual values of the reference solution be within .01, the regulations contain the phrase "or such limits set by the scientific director."

So, despite the proclamation that the sky is falling as a result of the Scillitani case, that is simply not the case. The issues of multiple blows and .02 test agreement are decided by the type of machine used to test the breath, not by Rule 19.4.

And, since Texas will (at some point) begin using the Intoxilyzer 8000, those questions will one day be moot.

DPS offers new way to request ALR hearings in Texas

It looks like we have a new method of requesting ALR hearings to contest license suspensions in Texas. The Department of Public Safety has added this link to their page that allows you to request a hearing online.

https://www.txdps.state.tx.us/DriverLicense/customer_service/SendForms/alr.asp

The Notice of Suspension handed to anyone arrested on a DWI does not mention a hearing can be requested online so I wouldn't rely solely on the internet to make a request. I would also be leery of "bugs in the aether" that could intercept the request.

As I already send my requests by fax and certified mail, maybe I'll just save the postage and send my requests by fax and through the DPS website from now on.

DPS policy now law

A controversial DPS policy is now law thanks to an amendment to the education funding bill added by Rep. Jim Pitts (R-Waxahachie). Back in 2008 the DPS began requiring applicants for driver's licenses to prove they were a citizen or were here legally. The passage of the bill puts to bed legal challenges to DPS' authority to check immigration status.

Beginning on September 1, 2011, everyone applying for, or renewing, a driver's license will be required to show proof of citizenship or legal status. What's so bad about that, you ask.

The implementation of this law will lead to an increase in the number of people driving on Texas roads without valid driver's licenses and insurance. Is that really the best way to safeguard the welfare of the driving public?

The Texas Department of Public Safety is responsible for patrolling the state's highways and for protecting the governor and the capitol - not for being surrogate immigration agents. Whether someone is here legally or not is not the business of law enforcement officials. It is not against the law to be in Texas without the permission of the federal government. If we're going to crack down on folks who have risked their lives to come here and work, leave it up to los federales.

The Constitution makes no distinction between citizens and non-citizens when it comes to our rights under the Bill of Rights. The Equal Protection Clause makes no distinction between those who are here with the blessing of the government and those who aren't. Preventing people from obtaining driver's licenses and insurance because of their immigration status serves no purpose other than to provide Rep. Pitts with an issue he can wave in front of the wingnuts come campaign season.

See also:

"Another knee-jerk reaction," The Defense Rests (Oct. 9, 2008)
"DPS calls for drivers' license checkpoints," The Defense Rests (Nov. 12, 2008)
"Judge shoots down DPS drivers' license plan," The Defense Rests (April 10, 2009)

Contaminated with bias

After you consume alcohol, your body begins the process of absorption and then elimination. The alcohol is absorbed by the blood through the intestinal tract and is eliminated through excretion (sweating, exhaling) and metabolism.

Breath test machines work on the principle that the amount of alcohol you excrete through exhalation can be used to estimate the amount of alcohol in your blood. It is an indirect method of determining whether someone is over the legal limit of .08 grams per 100 milliliters of blood.

The more direct method, of course, is blood testing. Even blood testing is not a direct method, however, because what's actually tested in the chromatograph is the headspace gas in the blood tube.

As blood is fragile, care must be taken to preserve samples. Anticoagulants are added to the tubes to prevent clotting and an antiseptic cleaner is used around the blood draw site to prevent bacteria from infecting the person or the blood sample. The blood must also be refrigerated to prevent the growth of little yeasts called candida albicans which can cause the blood sample to ferment in the tube.

What can't happen in that blood tube, though, is the elimination of alcohol for there is nothing to metabolize it. If the blood is collected and stored properly, the sample should yield approximately the same result any time you choose to test it. It is in a state of vacuum.

Unless, of course, you're the Texas Department of Public Safety and you have to explain why some blood samples that tested over the legal limit later yielded results (when tested by a private facility) that were below the legal limit.

Deviation-2010-02-23

Keith Gibson, the Quality Manager for the DPS lab on Jones Road in Houston had a problem. It seems that when a private lab retested a sample of blood from a DWI case, the result came in quite a bit below what the DPS test said. Mr. Gibson wrote that he didn't want to issue a Quality Assurance Report because one of the samples came out below the legal limit on retest. He just wanted to draft a "deviation" so it could be brushed under the rug.

Forrest Davis, the Quality Assurance Coordinator for the DPS, agreed. He didn't like the idea of a Quality Assurance Report because the data from the retests would be included in it. Better just to pretend it never happened, right? Interestingly enough, Mr. Davis did note that the retest did not include any volatiles that would have suggested a degradation of the sample.

Junk science is still junk science, no matter what you call it.

Crime labs should not be under the control of the police or any agency involved in the investigation or prosecution of crime. These labs should be under independent control to remove the inherent bias found in crime labs run by the police.

Holy piece of junk, Batman!

There were some folks who thought I was a bit off the mark when I dared to criticize HPD's BATmobiles. Turns out I was right.

We've got vans with wiring problems that renders the breath test machines inoperable. The air conditioning doesn't work in one van and that's not good for a machine that's temperature sensitive. Yep, that's how we take care of our "instruments" here in Space City.



The police won't even acknowledge the problems to the Harris County District Attorney's Office -- of course that cat's out the bag by now. Heaven forbid folks find out that the money used to purchase and maintain (sort of) the BATmobiles might as well have been used to light the charcoal in the grill.

The lieutenant was worried about having to, quote, "explain what these problems can do to pending court cases."


"The lieutenant may think there's a problem, but I don't see that there's a problem," Driskell said.


And the DA's office has never been told of any of the maintenance problems we've uncovered.

"It's not that we're trying to hide it, but I don't see a need in telling them that. If they wanna know that, we'd be glad to share that information," Driskell said.

It's not about getting drunks off the streets. It's about raking in that grant money. We're churning and burning, baby, just send the check. The DPS is in on the scam, too, charging motorists $3,000 for a DWI conviction. Budget shortfalls -- let's just increase the user fees on our roadways. Just think of all that fine money and surcharge payments.

But it's all right because it's all in the name of public safety. Isn't it?

Is proposal to end ALR system in the works?

Could the Administrative License Revocation system in Texas be coming to an end?

A little bird told me that State Senator Dan Patrick (R-Houston) is planning on introducing legislation this coming session to do away with the ALR system. According to my sources, under Sen. Patrick's proposal, a license suspension would be imposed upon the finding of probable cause by a magistrate.

Currently a motorist accused of a first driving while intoxicated faces a 90-day suspension for failing a breath test and a 180-day suspension for refusing to blow in the state's breath test machine. At the ALR hearing, the DPS must show that the officer either had reasonable suspicion to believe the motorist had committed an offense or probable cause to arrest.

The reasoning behind Sen. Patrick's proposal is that once a magistrate determines probable cause to arrest existed, there is no need for the state to spend any more money trying to prove it up at a ALR hearing. Nevermind the fact that at an ALR hearing the DPS must at least prove their case by a preponderance of the evidence -- at a probable cause hearing a judge must only find that probable cause to arrest exists.

The state would benefit in a couple of other ways, as well. Since the suspension would be imposed automatically upon a finding of probable cause, more motorists would have to pony up $125 reinstatement fees. Axing the program would also eliminate the ability of defense attorneys to depose the officers under oath before prosecutors get hold of them.

A bigger issue, however, is the imposition of criminal sanctions before the state has proven each and every element of its case beyond all reasonable doubt. Supporters can claim all they want that a license suspension is an administrative action separate and apart from the DWI case, but by using a magistrate's probable cause finding as the trigger -- the proposal would tie the two together at the hip. Such a move would violate the separation of powers doctrine and would serve to reduce the state's burden of proof.

Lawyer files suit to end surcharge program

I've written in the past of Texans caught in the Kafka-esque nightmare of the DPS Driver Responsibility Program that imposes surcharges on drivers convicted of certain offenses such as driving while intoxicated and driving without insurance.

Fort Worth defense attorney Mimi Coffey has also had enough. Ms. Coffey filed suit in federal court seeking to end the surcharges on the grounds that the imposition of the surcharge violates the principle of double jeopardy. The argument goes that the person has already had a penalty imposed by the court as a result of the conviction -- be it a fine, jail time, probation or a license suspension - and that the imposition of another financial penalty is, in effect, punishing the motorist a second time.

"You can't deprive property without due process," Coffey said. "I think it's time somebody do something about this."

The situation worsens if a motorist cannot afford the surcharge as the sanction for failing to pay the surcharge is a license suspension. And this is where the program becomes a never-ending cycle for those caught up in its vortex: if you can't pay the surcharge your license is suspended and, should you be ticketed for driving on that suspended license you'll get hit with another surcharge and yet another license suspension.


The author of the original bill putting the program into place, Rep. Mike Krusee of Round Rock, thinks the Driver Responsibility Program needs to go. Even MADD says it's time to scrap it (provided the state find another way to fund trauma centers).

"We have seen nothing that shows the program helps deter drunken driving."  Bill Lewis, MADD public policy liaison

Others have proposed repealing the program as is and enact new legislation that would hit motorists convicted of DWI for surcharges. Let's see, a motorist convicted of drunk driving has a criminal conviction on his record that can never be expunged, he spent at least a night in jail and will likely be under court supervision for at least 12 months -- I think reasonable people would agree that's adequate punishment.

Welcome to the 21st century

The Texas Department of Public Safety has discovered what a wonderful thing the internet can be -- if you know how to use it. For years a motorist could order his driving record online and then wait for weeks for it to be delivered by mail.

Now, with a few clicks of the mouse and a little info, a motorist can download his driving record instantly.

State changes course on driver surcharges

The Texas Department of Public Safety has finally come to the conclusion that hitting motorists with surcharge after surcharge is not working. The Public Safety Board has decided to implement a plan by which those with incomes less than 125% of the poverty level who are in default will have their surcharges reduced to 10% of what's owed up to $250. Once arrangements are made for payment the license suspensions will be lifted and the motorists will not be in danger of picking up additional surcharges and suspensions for driving on an invalid license.

Of course the program doesn't apply to motorists who have been paying their surcharges, nor does it apply to anyone making more than 125% of the federal poverty line (approximately $27,562 for a family of four).

The real solution to the mess is to rescind the Driver Responsibility Program altogether so that motorists don't fall into an endless cycle of surcharges and suspensions.

A new wrinkle in ALR practice?

I spent part of my morning at the State Office of Administrative Hearings on an ALR hearing for a DWI client. While observing some of the other hearings I noticed something I'd never seen before -- administrative law judges admitting documents even though an officer failed to appear after being subpoenaed.

Rule 159.211(c)(2) of the Texas Administrative Code states:

An officer's sworn report of relevant information shall be admissible as a public record. However, the defendant shall have the right to subpoena the officer in accordance with §159.103 of this title (relating to Subpoenas). If the defendant timely subpoenas an officer and the officer fails to appear without good cause, information obtained from that officer shall not be admissible. 

In each of these cases the officer who prepared the documents failed to appear after being subpoenaed by the defense. In each instance the attorney for the DPS sought to admit the documents as an offer of proof. The defense attorneys all objected on the grounds that the officer failed to appear after being subpoenaed. And, in each case, the administrative law judge admitted the documents but stated that any information provided by the officer who failed to appear would be disregarded.

In no case did the attorney for the DPS try to show that there was good cause for the officer's failure to appear. In no case did she raise any objection to the subpoena or its proof of service.

The old practice was for the DPS attorney to move for dismissal for the officer's failure to appear. Is this new practice designed to preserve evidence on the record in case the DPS chooses to appeal the finding of the administrative law judge? Is it being done so that the DPS can later raise the issue of sufficiency of service or show good cause for the officer's absence? Or is it yet another example of an administrative law judge who doesn't know the law?