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.
Showing posts with label intoxilyzer. Show all posts
Showing posts with label intoxilyzer. Show all posts
Thursday, May 23, 2013
Friday, May 10, 2013
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.
Thursday, January 17, 2013
Judge throws curve ball regarding Pennsylvania's breath test machines
The DWI statute in the Commonwealth of Pennsylvania establishes three levels of DWI offenses. There is a "loss of normal use" DWI that does not require the prosecution to prove an alcohol concentration (referred to as being incapable of safely driving). The state can also prove up general impairment by showing the driver had an alcohol concentration of between .08 and .10 within two hours of driving.
Should a driver have an alcohol concentration of between .10 and .15 within two hours of driving he can be charge with a "high rate of alcohol" DWI. Should that alcohol concentration be over .15, the driver can be charged with the "highest rate of alcohol" DWI.
The penalties for each of the three levels of offense get stiffer as the alcohol concentration rises.
In January 2010, Jason Schildt was arrested on suspicion of DWI when a police officer came across his car lying on its side in a ditch. A breath test on the state's Intoxilyzer 5000EN revealed an alcohol concentration of .20. Mr. Schildt was charged with multiple counts of driving while intoxicated and faced the most severe penalties as a result of his high breath test.
But, somewhere on the way to the plea docket, things got a bit hairy for the state.
Mr. Schildt's attorney filed a motion to quash the charge alleging that the state's breath test machine could not produce a reliable alcohol concentration reading over .015. The challenge was based on the initial calibration of the machine at the factory as well as the field calibrations conducted on the machines.
According to Pennsylvania regulations, the machine is supposed to be calibrated using simulator solutions purchased from an outside source and certified by an independent laboratory. At the hearing on the defense motion testimony from the state's "expert," an engineer at CMI, established that CMI, the manufacturer of the machine, performed the initial calibration of the machine using ethanol samples prepared in-house.
Furthermore, when the machines were calibrated in the field, they were only calibrated using ethanol solutions of .05, .10 and .15 concentrations. Another controversy arose about calibrating the machine to a zero point. Defense experts pointed out that for a machine to calibrate to zero would require it be able to distinguish a single atom. Anything else would be a guess. A true calibration curve only includes those data points established by a series of calibration tests - by "forcing" the calibration curve to cross the zero point, the curve below a .05 calibration was just pure speculation.
At the conclusion of the hearing, Court of Common Pleas Judge Lawrence Clark, Jr. found that the Intoxilyzers used by the Commonwealth could not be relied upon to produce a reliable result at alcohol concentrations below .05 or higher than .15.
The court did not find that the machines were unreliable - just that there was no scientific evidence that they could be relied up outside the range at which they were calibrated in the field. Judge Clark was also quick to point out that the defense was not challenging the regulations promulgated by the Commonwealth regarding the calibration of the machines. The challenge was to the conclusions made by the machine's keepers based upon the regulatory scheme.
The challenge was creative and illustrates why you have to know and understand the regulations surrounding breath test machines as well as how the machines operate in order to defend a drunk driving case properly. Over the years DWI laws have become more draconian and motorists' constitutional rights have been pared away. In that type of environment, sometimes the best defense is to know the minutiae of the machine better than the prosecutor.
Should a driver have an alcohol concentration of between .10 and .15 within two hours of driving he can be charge with a "high rate of alcohol" DWI. Should that alcohol concentration be over .15, the driver can be charged with the "highest rate of alcohol" DWI.
The penalties for each of the three levels of offense get stiffer as the alcohol concentration rises.
In January 2010, Jason Schildt was arrested on suspicion of DWI when a police officer came across his car lying on its side in a ditch. A breath test on the state's Intoxilyzer 5000EN revealed an alcohol concentration of .20. Mr. Schildt was charged with multiple counts of driving while intoxicated and faced the most severe penalties as a result of his high breath test.
But, somewhere on the way to the plea docket, things got a bit hairy for the state.
Mr. Schildt's attorney filed a motion to quash the charge alleging that the state's breath test machine could not produce a reliable alcohol concentration reading over .015. The challenge was based on the initial calibration of the machine at the factory as well as the field calibrations conducted on the machines.
According to Pennsylvania regulations, the machine is supposed to be calibrated using simulator solutions purchased from an outside source and certified by an independent laboratory. At the hearing on the defense motion testimony from the state's "expert," an engineer at CMI, established that CMI, the manufacturer of the machine, performed the initial calibration of the machine using ethanol samples prepared in-house.
Furthermore, when the machines were calibrated in the field, they were only calibrated using ethanol solutions of .05, .10 and .15 concentrations. Another controversy arose about calibrating the machine to a zero point. Defense experts pointed out that for a machine to calibrate to zero would require it be able to distinguish a single atom. Anything else would be a guess. A true calibration curve only includes those data points established by a series of calibration tests - by "forcing" the calibration curve to cross the zero point, the curve below a .05 calibration was just pure speculation.
At the conclusion of the hearing, Court of Common Pleas Judge Lawrence Clark, Jr. found that the Intoxilyzers used by the Commonwealth could not be relied upon to produce a reliable result at alcohol concentrations below .05 or higher than .15.
The court did not find that the machines were unreliable - just that there was no scientific evidence that they could be relied up outside the range at which they were calibrated in the field. Judge Clark was also quick to point out that the defense was not challenging the regulations promulgated by the Commonwealth regarding the calibration of the machines. The challenge was to the conclusions made by the machine's keepers based upon the regulatory scheme.
The challenge was creative and illustrates why you have to know and understand the regulations surrounding breath test machines as well as how the machines operate in order to defend a drunk driving case properly. Over the years DWI laws have become more draconian and motorists' constitutional rights have been pared away. In that type of environment, sometimes the best defense is to know the minutiae of the machine better than the prosecutor.
Wednesday, August 1, 2012
Making us all just a little bit dumber
Apparently Amy Davis of KPRC-TV in Houston doesn't keep up with the news. If she had, she might not have criticized the Harris County Sheriff's Office for not using its BATmobile. If she kept up with the news she might have learned about the problems the Houston Police Department had with their vans.
Yes, Harris County did waste $80,000 purchasing the van. But they bought one because everyone else had one, too. It was just the latest shiny toy. No one thought about the sensitivity of the breath test machines. No one thought about how the summer heat could cause the circuitry in the machines to go haywire. At least not until HPD's problems became known.
Ms. Davis wants us to believe that motorists are in danger because the BATmobile sits in its cave. She wants you to believe that drunk drivers are cruising up and down our streets because the BATmobile isn't crawling around town.
Ms. Davis seems to be unaware that the police don't need a breath test in order to arrest a motorist on suspicion of driving while intoxicated. She doesn't seem to understand that a motorist suspected of driving while intoxicated is under arrest when the breath test is offered.
Instead of running an "investigative" piece about an unused heap of junk sitting in a garage, she should've looked into why the BATmobile was purchased in the first place. She should've looked at who makes the decisions on what equipment to purchase and why. Maybe she could've looked into the giant slush fund controlled by the DA from criminal seizures and forfeitures. Maybe she should've questioned why that money isn't placed into the general revenue pool for the county.
But such reporting would have required research and legwork. It's much easier to grab the low-hanging fruit. It's even easier not to do a simple internet search for articles about the problems with the BATmobiles.
Yes, Harris County did waste $80,000 purchasing the van. But they bought one because everyone else had one, too. It was just the latest shiny toy. No one thought about the sensitivity of the breath test machines. No one thought about how the summer heat could cause the circuitry in the machines to go haywire. At least not until HPD's problems became known.
Ms. Davis wants us to believe that motorists are in danger because the BATmobile sits in its cave. She wants you to believe that drunk drivers are cruising up and down our streets because the BATmobile isn't crawling around town.
Ms. Davis seems to be unaware that the police don't need a breath test in order to arrest a motorist on suspicion of driving while intoxicated. She doesn't seem to understand that a motorist suspected of driving while intoxicated is under arrest when the breath test is offered.
Instead of running an "investigative" piece about an unused heap of junk sitting in a garage, she should've looked into why the BATmobile was purchased in the first place. She should've looked at who makes the decisions on what equipment to purchase and why. Maybe she could've looked into the giant slush fund controlled by the DA from criminal seizures and forfeitures. Maybe she should've questioned why that money isn't placed into the general revenue pool for the county.
But such reporting would have required research and legwork. It's much easier to grab the low-hanging fruit. It's even easier not to do a simple internet search for articles about the problems with the BATmobiles.
Thursday, February 16, 2012
Trying to keep your story straight
It can be so damned hard to get those stories straight sometimes. Fudging a little bit here, leaving out something over there and then having to remember all that when asked to recount what happened.
First you claimed that you knew nothing about any investigation into the backgrounds of the grand jurors investigating your office in the BATmobile mess. Then, after being exposed, you claim that it was just a cursory search of social media sites.
Then, after a scathing letter from the grand jury aimed at your office, we find out the Texas Rangers were nosing around 1201 Franklin asking questions. Three days later you claimed to have called in the Rangers to look into the allegations against you. And now the Rangers are seizing computers and copies of interviews you gave regarding the investigation.
Ms. Lykos would have been better served by just letting the office take its lumps for any Brady violations committed regarding evidence of the unreliability of the breath test machines in the BATmobiles. Sure, you might have had to dismiss a few DWI cases here and there - but then it would be over. The whole matter would be forgotten by the time the primary election rolled around.
But no, that just wouldn't do. You had to try to cover it all up. Then, when the grand jury decided to look into your office you threw up the shield. You asked your investigator to look into the backgrounds of the members of the grand jury (and the judge and her husband). Now the Rangers are looking into exactly what went on and who did what. Definitely not good times.
Once upon a time there was a president who got caught with his hand in the cookie jar when some burglars were caught in the headquarters of the opposition party. Instead of just 'fessing up and taking the heat up front he decided to try to cover it all up. He erased tapes. He tried to intimidate others. In the end he became the first sitting president to step down during his term.
Nixon wasn't disgraced because of his role in the break-in; he was disgraced because of his attempt to cover up his involvement in the matter.
With two grand jury investigations and now the Texas Rangers snooping around the tea leaves at the bottom of the cup aren't looking too good for Ms. Lykos.
I didn't know about any investigation of the grand jurors.
I authorized an investigation of the grand jurors.
Actually it was just a quick internet search [on county computers].
Should there be an investigation [by the Texas Rangers] we will cooperate.
I asked the Texas Rangers to look into the allegations myself.Okay, Ms. Lykos, which is it?
First you claimed that you knew nothing about any investigation into the backgrounds of the grand jurors investigating your office in the BATmobile mess. Then, after being exposed, you claim that it was just a cursory search of social media sites.
Then, after a scathing letter from the grand jury aimed at your office, we find out the Texas Rangers were nosing around 1201 Franklin asking questions. Three days later you claimed to have called in the Rangers to look into the allegations against you. And now the Rangers are seizing computers and copies of interviews you gave regarding the investigation.
Ms. Lykos would have been better served by just letting the office take its lumps for any Brady violations committed regarding evidence of the unreliability of the breath test machines in the BATmobiles. Sure, you might have had to dismiss a few DWI cases here and there - but then it would be over. The whole matter would be forgotten by the time the primary election rolled around.
But no, that just wouldn't do. You had to try to cover it all up. Then, when the grand jury decided to look into your office you threw up the shield. You asked your investigator to look into the backgrounds of the members of the grand jury (and the judge and her husband). Now the Rangers are looking into exactly what went on and who did what. Definitely not good times.
Once upon a time there was a president who got caught with his hand in the cookie jar when some burglars were caught in the headquarters of the opposition party. Instead of just 'fessing up and taking the heat up front he decided to try to cover it all up. He erased tapes. He tried to intimidate others. In the end he became the first sitting president to step down during his term.
Nixon wasn't disgraced because of his role in the break-in; he was disgraced because of his attempt to cover up his involvement in the matter.
With two grand jury investigations and now the Texas Rangers snooping around the tea leaves at the bottom of the cup aren't looking too good for Ms. Lykos.
Wednesday, February 1, 2012
Runaway grand jury closes up shop
Yesterday the grand jury investigating the Harris County District Attorney's Office announced that it was not issuing any indictments. The news was greeted with a big yawn by folks around the Criminal (In)justice Center.
The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.
Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.
What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?
Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.
Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.
I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.
As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.
So, go on, there's nothing to see here.
The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.
Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.
What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?
Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.
Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.
I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.
As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.
So, go on, there's nothing to see here.
Friday, December 16, 2011
I'll have a fifth, please
On Thursday morning, Harris County Assistant District Attorney Rachel Palmer appeared before a grand jury looking into the troubled HPD mobile alcohol testing vans (BATmobiles). Ms. Palmer invoked her Fifth Amendment right to remain silent and refused to answer any questions.
The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.
Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?
And how might her answering questions incriminate her?
Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?
However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.
I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?
See also:
"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)
The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.
Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?
And how might her answering questions incriminate her?
Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?
However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.
I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?
See also:
"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)
Wednesday, December 14, 2011
Grand jury subpoenas top county officials in DWI probe
Remember that "runaway" grand jury investigating the HPD BATmobiles? Well, they're baaack...
The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.
First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.
Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.
The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.
Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.
The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.
First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.
Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.
The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.
Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.
Wednesday, October 26, 2011
The plot thickens
It would appear that the shit has hit the fan over at 1201 Franklin.
Today, State District Judge Susan Brown appointed former prosecutors Stephen St. Martin and James Mount to serve as special prosecutors for the grand jury investigating the Harris County District Attorney's Office.
From the Houston Chronicle:
Harris County District Attorney Pat Lykos manages her office through fear and intimidation (just read Murray Newman's posts on the warm and fuzzy feelings that Ms. Lykos evokes on the 6th floor). That might work on her staff - after all, with the current economic climate, hanging out your own shingle is a scary prospect - but it doesn't work with people outside the office.
Ms. Lykos is upset with Amanda Culbertson. She is upset with the Houston Police Department. Okay, I get it, but retaliating against Ms. Culbertson by subjecting her to a grand jury investigation was going a bit too far. Ms. Lykos' need for total control and her intolerance toward dissent may very well end up haunting her between now and next year's election - if she manages to hold on that long. Fear does not breed loyalty - and that's something Ms. Lykos should think about as the investigation continues.
This is not going to end well for Ms. Lykos and her minions.
Today, State District Judge Susan Brown appointed former prosecutors Stephen St. Martin and James Mount to serve as special prosecutors for the grand jury investigating the Harris County District Attorney's Office.
From the Houston Chronicle:
The order appointing St. Martin and Mount, both former assistant district attorneys now in private practice, states that grand jurors are investigating “possible criminal conduct by members of the Harris County district attorney’s office.”
“After considering the grand jury’s request and the applicable law, the court finds the Harris County District Attorney and her office are disqualified from participating in the grand jury’s investigation,” Brown wrote.
Harris County District Attorney Pat Lykos manages her office through fear and intimidation (just read Murray Newman's posts on the warm and fuzzy feelings that Ms. Lykos evokes on the 6th floor). That might work on her staff - after all, with the current economic climate, hanging out your own shingle is a scary prospect - but it doesn't work with people outside the office.
Ms. Lykos is upset with Amanda Culbertson. She is upset with the Houston Police Department. Okay, I get it, but retaliating against Ms. Culbertson by subjecting her to a grand jury investigation was going a bit too far. Ms. Lykos' need for total control and her intolerance toward dissent may very well end up haunting her between now and next year's election - if she manages to hold on that long. Fear does not breed loyalty - and that's something Ms. Lykos should think about as the investigation continues.
This is not going to end well for Ms. Lykos and her minions.
Monday, October 24, 2011
Runaway jury
The original purpose of the grand jury was to have a body that could review a case to determine if there was enough evidence to proceed. The grand jury met in secret and if they chose to no-bill a case, no one ever knew the case had ever been considered.
The grand jury's role was to act as a check on the state in its prosecution of citizens accused of breaking the law. Over the years the grand jury has become a de facto rubber stamp for prosecutors. If the District Attorney wanted a case indicted, it was. If he wanted a case to go away because it was too hot a potato, all he had to do was let the grand jury know it was okay to no-bill it.
But someone, in Houston, a grand jury actually decided to take matters into its own hands. The grand jury was convened to consider whether anyone did something untoward regarding HPD's batmobile breath test machines.
You see, Amanda Culbertson kind of embarrassed Pat Lykos and her minions when she pointed out to her superiors in the HPD Crime Lab that the breath test machines in the batmobiles weren't, shall we say, very accurate or reliable. Then, to make matters worse, Ms. Culbertson testified under subpoena in a case and repeated her assertions that the breath tests conducted in the vans weren't all they were cracked up to be.
In the process of conducting its investigation, the grand jurors made it known that prosecutors weren't welcome in the room. Needless to say, this did not go over very well with Ms. Lykos. The DA's office asked the court of appeals to order the grand jurors to let prosecutors into the room but the appellate court thanked Ms. Lykos for playing but that she was not getting into the room - even if she said "pretty please or I'll indict someone's mother."
It stands to reason that the grand jurors are taking a hard look at the conduct of the DA's office in this entire sordid affair. Maybe someone gets indicted. Maybe (probably) not. But, I think it reasonable to assume that the grand jury is not going to indict Ms. Culbertson on some trumped up charge of telling the truth on the witness stand even thought it makes it harder for the state to prosecute motorists for driving while intoxicated.
Ms. Lykos has apparently forgotten that her ethical duty as a prosecutor isn't to coerce pleas or obtain convictions - it is to do justice. And that's even if it means dismissing cases because the machines used by law enforcement can't be relied upon to do what they are supposed to do.
H/T Murray Newman
The grand jury's role was to act as a check on the state in its prosecution of citizens accused of breaking the law. Over the years the grand jury has become a de facto rubber stamp for prosecutors. If the District Attorney wanted a case indicted, it was. If he wanted a case to go away because it was too hot a potato, all he had to do was let the grand jury know it was okay to no-bill it.
But someone, in Houston, a grand jury actually decided to take matters into its own hands. The grand jury was convened to consider whether anyone did something untoward regarding HPD's batmobile breath test machines.
You see, Amanda Culbertson kind of embarrassed Pat Lykos and her minions when she pointed out to her superiors in the HPD Crime Lab that the breath test machines in the batmobiles weren't, shall we say, very accurate or reliable. Then, to make matters worse, Ms. Culbertson testified under subpoena in a case and repeated her assertions that the breath tests conducted in the vans weren't all they were cracked up to be.
In the process of conducting its investigation, the grand jurors made it known that prosecutors weren't welcome in the room. Needless to say, this did not go over very well with Ms. Lykos. The DA's office asked the court of appeals to order the grand jurors to let prosecutors into the room but the appellate court thanked Ms. Lykos for playing but that she was not getting into the room - even if she said "pretty please or I'll indict someone's mother."
It stands to reason that the grand jurors are taking a hard look at the conduct of the DA's office in this entire sordid affair. Maybe someone gets indicted. Maybe (probably) not. But, I think it reasonable to assume that the grand jury is not going to indict Ms. Culbertson on some trumped up charge of telling the truth on the witness stand even thought it makes it harder for the state to prosecute motorists for driving while intoxicated.
Ms. Lykos has apparently forgotten that her ethical duty as a prosecutor isn't to coerce pleas or obtain convictions - it is to do justice. And that's even if it means dismissing cases because the machines used by law enforcement can't be relied upon to do what they are supposed to do.
H/T Murray Newman
Wednesday, October 5, 2011
Ask not for whom the whistle blows
For the past two decades the breath alcohol testing program in Harris County was run by Lone Star College (formerly North Harris Montgomery College). But no longer.
Yesterday Harris County commissioners voted to award the contract to the Texas Department of Public Safety. Harris County District Attorney Pat Lykos has been accused of pressuring commissioners to make the change in retaliation to Lone Star's hiring of Amanda Culbertson as a technical supervisor.
Ms. Culbertson, as you may remember, testified this summer about problems with the Houston Police Department's breath testing vans. She testified after being subpoenaed by a local defense attorney (and served by my brother). In her testimony she alleged that the higher-ups in the HPD crime lab had turned the lab into a hostile work environment because she dared to speak up about the problems.
County commissioners did Ms. Lykos no favors by deferring responsibility for the change to Ms. Lykos. She might want to get the license plate number of the bus she was thrown under.
Knowing what I know about Ms. Lykos, I don't find it a stretch to believe that she was behind the move. It would appear to be par for the course (for more on Ms. Lykos and her gang that can't shoot straight, check out Murray Newman's Life at the Harris County Criminal Justice Center blog).
The other day I wrote that I had a few problems with local criminal defense attorneys coming to Ms. Culbertson's defense. I still find it disturbing and short-sighted. Ms. Culbertson was a true-believer until she ran across problems with the batmobiles that she couldn't defend.
But, Ms. Culbertson was not a whistleblower. She never went to the media to let them know about problems with the breath test machines in the vans. She never volunteered that information at trial. The only reason she testified about those problems in open court was because Dane Johnson had made an open records request and had obtained e-mails documenting the problems. She had no choice but to testify that the machines were unreliable in that environment.
If Ms. Culbertson left HPD because she felt intimidated for raising questions about the batmobiles, then it's shame on HPD for allowing it to happen. But if we're supposed to be up in arms because the county decided not to renew the contract with Lone Star, let me off the train. It would seem that we're forgetting that what the government giveth, the government taketh away.
When your job depends on government largesse, you must understand that what's here today may be long gone tomorrow. So maybe it was retaliation and maybe it wasn't. That's just politics.
Yesterday Harris County commissioners voted to award the contract to the Texas Department of Public Safety. Harris County District Attorney Pat Lykos has been accused of pressuring commissioners to make the change in retaliation to Lone Star's hiring of Amanda Culbertson as a technical supervisor.
Ms. Culbertson, as you may remember, testified this summer about problems with the Houston Police Department's breath testing vans. She testified after being subpoenaed by a local defense attorney (and served by my brother). In her testimony she alleged that the higher-ups in the HPD crime lab had turned the lab into a hostile work environment because she dared to speak up about the problems.
County commissioners did Ms. Lykos no favors by deferring responsibility for the change to Ms. Lykos. She might want to get the license plate number of the bus she was thrown under.
Knowing what I know about Ms. Lykos, I don't find it a stretch to believe that she was behind the move. It would appear to be par for the course (for more on Ms. Lykos and her gang that can't shoot straight, check out Murray Newman's Life at the Harris County Criminal Justice Center blog).
The other day I wrote that I had a few problems with local criminal defense attorneys coming to Ms. Culbertson's defense. I still find it disturbing and short-sighted. Ms. Culbertson was a true-believer until she ran across problems with the batmobiles that she couldn't defend.
But, Ms. Culbertson was not a whistleblower. She never went to the media to let them know about problems with the breath test machines in the vans. She never volunteered that information at trial. The only reason she testified about those problems in open court was because Dane Johnson had made an open records request and had obtained e-mails documenting the problems. She had no choice but to testify that the machines were unreliable in that environment.
If Ms. Culbertson left HPD because she felt intimidated for raising questions about the batmobiles, then it's shame on HPD for allowing it to happen. But if we're supposed to be up in arms because the county decided not to renew the contract with Lone Star, let me off the train. It would seem that we're forgetting that what the government giveth, the government taketh away.
When your job depends on government largesse, you must understand that what's here today may be long gone tomorrow. So maybe it was retaliation and maybe it wasn't. That's just politics.
Monday, October 3, 2011
Thinking before speaking
Why would some local criminal defense attorneys be singing the praises of ex-HPD crime lab technical supervisor Amanda Culbertson?
Ms. Culbertson left the beleaguered HPD crime lab earlier this year as a result of what she called retaliation on the part of department employees after she raised questions about the accuracy and reliability of breath test machines in the departments BATvans.
Now Harris County Commissioner's Court is looking at whether to renew a contract with Lone Star College to manage breath test machines in the county or turn over their machines to the DPS. Adding drama to the events is the fact that Ms. Culbertson now works for Lone Star College (along with one of her former colleagues Jorge Wong).
Tyler Flood, Mark Thiessen and Brent Mayr spoke at the most recent meeting of the county commissioners to voice their belief that the county is retaliating against Ms. Culbertson for recently speaking out about problems with the BATvans.
Mr. Mayr told county commissioners that the county's technical supervisors are "committed to justice" and to seeking the truth. He said that he believed the contract was in jeopardy because the DA's office was more concerned about chalking up convictions than seeking justice.
Referring to technical supervisors as scientists is stretching the truth just about as far as it can be stretched. Technical supervisors are hired to maintain breath test machines in Texas. Their job is to ensure that the machines are working and to remove malfunctioning machines from service. They must also testify in criminal proceedings that the particular machine was working properly and that the breath test was conducted per Texas guidelines.
They are not paid to be objective. They are not paid to take a critical view of the breath test machine. They are paid to work with police and prosecutors to obtain convictions against motorists accused of driving while intoxicated.
They are no more committed to justice than the rulers of Yemen or Syria.
By singing Ms. Culbertson's praises these attorneys are telling future jurors that she speaks the truth; that she views science as impartial; that she wants to make certain that innocent folks are convicted of DWI.
Is that the image you want jury panels to come into the courtroom with? Are you sure you want to puff up the person who will testify - without any evidence other than a number on a test slip - that your client was intoxicated at the time she was driving?
I understand realpolitik and that the enemy of your enemy may very well be your friend -- but never forget the fox who offered to carry the gingerbread man across the river.
Let the county switch from Lone Star College to the DPS. It doesn't really matter. In the end the police, the technical supervisors and the judges are all working to see that your client is convicted. Maybe Ms. Culbertson had some interesting things to say about the batmobiles -- but it doesn't mean she's a friend of the defense.
Ms. Culbertson left the beleaguered HPD crime lab earlier this year as a result of what she called retaliation on the part of department employees after she raised questions about the accuracy and reliability of breath test machines in the departments BATvans.
Now Harris County Commissioner's Court is looking at whether to renew a contract with Lone Star College to manage breath test machines in the county or turn over their machines to the DPS. Adding drama to the events is the fact that Ms. Culbertson now works for Lone Star College (along with one of her former colleagues Jorge Wong).
Tyler Flood, Mark Thiessen and Brent Mayr spoke at the most recent meeting of the county commissioners to voice their belief that the county is retaliating against Ms. Culbertson for recently speaking out about problems with the BATvans.
Mr. Mayr told county commissioners that the county's technical supervisors are "committed to justice" and to seeking the truth. He said that he believed the contract was in jeopardy because the DA's office was more concerned about chalking up convictions than seeking justice.
Referring to technical supervisors as scientists is stretching the truth just about as far as it can be stretched. Technical supervisors are hired to maintain breath test machines in Texas. Their job is to ensure that the machines are working and to remove malfunctioning machines from service. They must also testify in criminal proceedings that the particular machine was working properly and that the breath test was conducted per Texas guidelines.
They are not paid to be objective. They are not paid to take a critical view of the breath test machine. They are paid to work with police and prosecutors to obtain convictions against motorists accused of driving while intoxicated.
They are no more committed to justice than the rulers of Yemen or Syria.
By singing Ms. Culbertson's praises these attorneys are telling future jurors that she speaks the truth; that she views science as impartial; that she wants to make certain that innocent folks are convicted of DWI.
Is that the image you want jury panels to come into the courtroom with? Are you sure you want to puff up the person who will testify - without any evidence other than a number on a test slip - that your client was intoxicated at the time she was driving?
I understand realpolitik and that the enemy of your enemy may very well be your friend -- but never forget the fox who offered to carry the gingerbread man across the river.
Let the county switch from Lone Star College to the DPS. It doesn't really matter. In the end the police, the technical supervisors and the judges are all working to see that your client is convicted. Maybe Ms. Culbertson had some interesting things to say about the batmobiles -- but it doesn't mean she's a friend of the defense.
Thursday, August 4, 2011
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.
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.
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.
Monday, August 1, 2011
A regulation by any other name isn't worth a damn
When applied to alcohol breath testing it means that who ever operates the breath test machine is doing so in accordance with the Texas Breath Alcohol Testing Regulations. These regulations can be found in Title 37 of the Texas Administrative Code, Part 1, Chapter 19, Subchapter A.
Rule 19.4 governs the proper method for administering a breath test to a person arrested on suspicion of driving while intoxicated. Rule 19.4(c) deals specifically with the what the breath test operator has to do in order for a breath test to be valid.
The Texas Breath Alcohol Testing Program Operator Manual states that the operating temperature of the reference sample device ("simulator") is 34 degrees C plus or minus .2 degrees C. The manual states that the "operator may verify the correct temperature by observing the thermometer on the front of the device."
The simulator has a heating element to warm the alcohol solution to the proper temperature, a thermostat to maintain that temperature and a stirring paddle to ensure an even temperature inside the jar.
The simulator is used "to verify the accuracy and calibration of the [intoxilyzer]." The breath test machine analyzes the alcohol concentration inside the simulator as a part of every breath test.
In Scillitani v. Texas, No. 14-08-00430-CR, (Tex.App.--Houston [14th Dist.] 2011), the Houston Court of Appeals was asked to determine whether or not the breath test operator was required to verify the temperature of the solution inside the simulator.
The court rejected Mr. Scillitani's argument on the grounds that nowhere in the breath test regulations does it state that the breath test operator must verify the temperature of the solution inside the simulator.
According to Rule 19.4(c)(4), in order for a breath test to be valid, the result of the machine's analysis of the solution inside the simulator must be within .01 g/210 L "or such limits as set by the scientific director." That rule did not change when the breath test regulations were updated effective March 2006.
There's a problem with the court's conclusion, however. The simulator is supposed to be a tool used to calibrate the breath test machine. The breath test machine sucks in a certain amount of vapor from the headspace gas inside the simulator. That vapor is then analyzed to determine its alcohol concentration and to compare it with the predicted value. But if the solution is outside the designated tolerance, can we trust that the machine is calibrated properly?
If you take a jar of water and alcohol and seal it, Henry's Law* says that the alcohol concentration in the headspace above the solution should be the same as the alcohol concentration of the solution. Heat up the solution and the molecules will become more active and the alcohol concentration will rise. Reduce the temperature and the opposite will occur.
Even if the vapor from the simulator is within .01 g/210 L of the predicted value, if the temperature is outside the required tolerance, questions must be raised about whether the breath test machine is calibrated correctly. Is the actual value different from the predicted value because the machine isn't working? Is it because the simulator solution wasn't mixed properly in the first place? Is it because the sample chamber is contaminated in some way? These are all legitimate questions that can't be answered without knowing the actual temperature of the simulator solution.
Now let's think about this logically for a second. Why would the manual produced by the Department of Public Safety and used to train both breath test operators and technical supervisors state that the temperature of the simulator solution must be within a certain tolerance of 34 degrees C if it wasn't necessary to verify that temperature? Why not just rely on the machine's analysis of the vapor from the simulator? Why put a thermometer on the simulator?
If the question is whether or not a breath test was conducted properly, then shouldn't we be looking at the Texas Breath Alcohol Testing Program Operator Manual, the book used to train breath test operators, to make that determination?
* Henry's Law is remarkably similar to the Hermetic concept of "As above, so below." You can also find it in the so-called Emerald Tablet, the foundation of the alchemists' belief system. The breath test machine conducts its own form of alchemy by turning a measurement of length into a volumetric measurement.
Friday, July 29, 2011
The wreckage of the batmobile
I've written at length about the problems with the Houston Police Department's BATmobiles and I've written about the departure of every technical supervisor from HPD's "Crime Lab." It would appear that our stories have intersected.
Amanda Culbertson, the former technical supervisor for HPD's breath test machines, told a judge on Thursday that she and the others left the city's employ because of their concerns with the BATmobile program. Ms. Culbertson said that she left because she feared retaliation from HPD over her criticism of the program.
According to the Houston Chronicle's Brian Rogers:
If Ms. Culbertson's story is true, I would like to know whether the folks charged with DWI who blew into machines in the BATmobiles were informed of her concerns over the accuracy of the test results. The prosecutors, as to be expected, threw up their arms and told the judge they had no knowledge of any of this.
As an aside, the article notes that the attorneys subpoenaed Ms. Culbertson after she finished testifying in another court. Well, that's not exactly true. While the attorneys may have drafted the subpoena, Ms. Culbertson was served by none other than my brother, Dan, who is a private investigator and process server.
And this brings us back to the bigger issue - why are the labs running these tests and maintaining these machines operated by the same folks who are out there arresting motorists for driving while intoxicated? There can be no objectivity in such a setting. What does it say when the person in charge of the machines feels so threatened by her employer that she walks away from her job? If the folks in charge of the crime lab were interested in the quality of the science, why would they ignore the concerns of Ms. Culbertson?
The folks in charge should have been happy that she came to them with her concerns. They should have welcomed the opportunity to correct problems with the program. Instead, because she wouldn't stick to the script, they ran her off.
This is not to absolve Ms. Culbertson from blame, however. If she was aware of the problems back in 2009, why wasn't she testifying that she had grave concerns over the accuracy of breath tests conducted in the BATmobiles? Why wait until she's taken another job as a technical supervisor overlooking machines used in the county?
The mission of science is to discover the truth. Science is misused when it's made to fit the facts of the state's case.
Amanda Culbertson, the former technical supervisor for HPD's breath test machines, told a judge on Thursday that she and the others left the city's employ because of their concerns with the BATmobile program. Ms. Culbertson said that she left because she feared retaliation from HPD over her criticism of the program.
According to the Houston Chronicle's Brian Rogers:
[Amanda Culbertson] and others worked to train technicians to keep air conditioning units on to regulate the temperature of the breath machine that measures blood alcohol levels in suspected drunken drivers. She also said an electrical glitch that was never fixed meant the sophisticated measuring machines would reset every time the van's air conditioner was turned on.
She said she supported the idea of a mobile testing site, but that HPD did not work to maintain the accuracy of the test results.
"In theory it's a great idea, but it depends on who is in charge of the environmental conditions," Culbertson said.
If Ms. Culbertson's story is true, I would like to know whether the folks charged with DWI who blew into machines in the BATmobiles were informed of her concerns over the accuracy of the test results. The prosecutors, as to be expected, threw up their arms and told the judge they had no knowledge of any of this.
As an aside, the article notes that the attorneys subpoenaed Ms. Culbertson after she finished testifying in another court. Well, that's not exactly true. While the attorneys may have drafted the subpoena, Ms. Culbertson was served by none other than my brother, Dan, who is a private investigator and process server.
And this brings us back to the bigger issue - why are the labs running these tests and maintaining these machines operated by the same folks who are out there arresting motorists for driving while intoxicated? There can be no objectivity in such a setting. What does it say when the person in charge of the machines feels so threatened by her employer that she walks away from her job? If the folks in charge of the crime lab were interested in the quality of the science, why would they ignore the concerns of Ms. Culbertson?
The folks in charge should have been happy that she came to them with her concerns. They should have welcomed the opportunity to correct problems with the program. Instead, because she wouldn't stick to the script, they ran her off.
This is not to absolve Ms. Culbertson from blame, however. If she was aware of the problems back in 2009, why wasn't she testifying that she had grave concerns over the accuracy of breath tests conducted in the BATmobiles? Why wait until she's taken another job as a technical supervisor overlooking machines used in the county?
The mission of science is to discover the truth. Science is misused when it's made to fit the facts of the state's case.
Friday, May 13, 2011
And then there were none
First it was Jano Chu who left back in the fall of 2010.
Then it was Jorge Wong's turn to go in March.
And now Amanda Culbertson is heading out the door.
Maybe it's something in the water over there at 1200 Travis that's causing area Technical Supervisors to flee for other grounds.
Then it was Jorge Wong's turn to go in March.
And now Amanda Culbertson is heading out the door.
Maybe it's something in the water over there at 1200 Travis that's causing area Technical Supervisors to flee for other grounds.
Trade secrets, confrontation and junk science
Back in 2005, a Sarasota County (FL) judge ordered CMI, the maker of the Intoxilyzer, to produce the source code to a designated expert for examination. A judge in neighboring Manatee County did likewise. Two years ago, a Florida appeals court upheld the trial court orders. Earlier this year the Florida Supreme Court refused to hear CMI's appeal.
Today, six years later, the source code has yet to be produced.
Things reached a head last week when prosecutors made the decision to dismiss a DWI case against Janet Landrum rather than have a judge sign an order that could invalidate any prosecutions based on breath test results. Ms. Landrum was being tried after being arrested for the 11th time for driving while intoxicated.
Earl Landrum, the State's Attorney, has been CMI's water-carrier, arguing that the source code is a trade secret and that defense experts have no right to inspect it.
Florida uses the Intoxilyzer 8000 which uses dry gas calibration (rather than the alcohol jar on the Intoxilyzer 5000) and measures the absorption of light at two wavelengths (rather than five).
No one outside of CMI has seen the source code that runs the machine. Not one state's expert can testify exactly how the machine operates. Since CMI fights every attempt by anyone to see the source code, the reliability of the machine cannot be tested.
Just think about that for a second. The state will put an "expert" on the stand who will testify that the machine was working properly at the time of a given breath test. That "expert" will testify that the machine had been maintained properly. That "expert" will testify as to the alleged alcohol concentration in a motorist's blood. But that "expert" can't tell anyone exactly what goes on in the innards of that machine.
That "expert" knows how to run a diagnostic check on the machine, how to change out the dry gas canister, how to clean the machine and how to make simple repairs to the machine. But that "expert" can't tell a jury how the machine's computer program converts the absorption of light into a volumetric measurement that is supposedly analogous to the level of alcohol in a person's bloodstream.
In an era in which we have learned that the forensic "science" that was used to obtain convictions is, in many ways, junk science, we are supposed to put our faith in a grey box that no one outside CMI can explain the manner in which it works (or doesn't).
What are y'all hiding out there in Kentucky, CMI? The rights of a criminal defendant to confront and challenge the evidence arrayed against him trumps any claim that the source code is a trade secret. The mere fact that CMI is unwilling to turn over the source code to designated experts is more than enough to cast a shadow of doubt upon the accuracy of the machine.
Things reached a head last week when prosecutors made the decision to dismiss a DWI case against Janet Landrum rather than have a judge sign an order that could invalidate any prosecutions based on breath test results. Ms. Landrum was being tried after being arrested for the 11th time for driving while intoxicated.
Earl Landrum, the State's Attorney, has been CMI's water-carrier, arguing that the source code is a trade secret and that defense experts have no right to inspect it.
Florida uses the Intoxilyzer 8000 which uses dry gas calibration (rather than the alcohol jar on the Intoxilyzer 5000) and measures the absorption of light at two wavelengths (rather than five).
No one outside of CMI has seen the source code that runs the machine. Not one state's expert can testify exactly how the machine operates. Since CMI fights every attempt by anyone to see the source code, the reliability of the machine cannot be tested.
Just think about that for a second. The state will put an "expert" on the stand who will testify that the machine was working properly at the time of a given breath test. That "expert" will testify that the machine had been maintained properly. That "expert" will testify as to the alleged alcohol concentration in a motorist's blood. But that "expert" can't tell anyone exactly what goes on in the innards of that machine.
That "expert" knows how to run a diagnostic check on the machine, how to change out the dry gas canister, how to clean the machine and how to make simple repairs to the machine. But that "expert" can't tell a jury how the machine's computer program converts the absorption of light into a volumetric measurement that is supposedly analogous to the level of alcohol in a person's bloodstream.
In an era in which we have learned that the forensic "science" that was used to obtain convictions is, in many ways, junk science, we are supposed to put our faith in a grey box that no one outside CMI can explain the manner in which it works (or doesn't).
What are y'all hiding out there in Kentucky, CMI? The rights of a criminal defendant to confront and challenge the evidence arrayed against him trumps any claim that the source code is a trade secret. The mere fact that CMI is unwilling to turn over the source code to designated experts is more than enough to cast a shadow of doubt upon the accuracy of the machine.
Saturday, March 5, 2011
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.
But it's all right because it's all in the name of public safety. Isn't it?
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?
Friday, February 18, 2011
To the batcave, Robin
Stop me if you've heard this one before - the Houston Police Department, along with the Harris County DA's Office and MADD announced a new initiative aimed at combating that bogeyman of bogeyman - drunk driving.
This time the state's weapon of choice is the BATmobile. The breath alcohol testing vehicle contains an intoxiliar machine so that the police can offer breath tests to motorists arrested for DWI on the spot. Note that I didn't say motorists suspected of driving while intoxicated. That's because in Texas, in order for a breath test to be admissible, the motorist must be under arrest at the time the officer requests a breath sample.
The breath test machine is, if you listen to prosecutors and officers, a scientific "instrument" designed to detect the alcohol concentration in someone's blood -- based on how much alcohol is in their breath. Like many sci-fi shows, you have to suspend reality to understand how this modern day relic of the alchemists works.
I don't know too many scientific instruments that labs keep in rooms such as the intox video rooms at HPD. I've always thought scientific instruments should be kept in pristine labs that are kept clean of all contaminants so that the measurements taken are as accurate as possible. But maybe that's just me.
These breath test machines are maintained by the Knights Templar of the police state -- DPS licensed technical supervisors who are supposed to perform regular maintenance on the machines and testify in court that everything is hunky-dory with the machine. But how much testing is performed to determine whether moving the machine from location to location affects its ability to do whatever the hell it's supposed to do? How much testing is performed to determine if the communications systems in the BATmobiles interferes with the machine's innards? How much testing is performed to determine if the machines are affected by the ambient air both inside the van and outside in the real world? More importantly, has the (pseudo)scientific director of the DPS approved this new initiative?
The Houston Police Department's latest state-of-the-art weapon to combat drunk driving.
This time the state's weapon of choice is the BATmobile. The breath alcohol testing vehicle contains an intoxiliar machine so that the police can offer breath tests to motorists arrested for DWI on the spot. Note that I didn't say motorists suspected of driving while intoxicated. That's because in Texas, in order for a breath test to be admissible, the motorist must be under arrest at the time the officer requests a breath sample.
The breath test machine is, if you listen to prosecutors and officers, a scientific "instrument" designed to detect the alcohol concentration in someone's blood -- based on how much alcohol is in their breath. Like many sci-fi shows, you have to suspend reality to understand how this modern day relic of the alchemists works.
I don't know too many scientific instruments that labs keep in rooms such as the intox video rooms at HPD. I've always thought scientific instruments should be kept in pristine labs that are kept clean of all contaminants so that the measurements taken are as accurate as possible. But maybe that's just me.
These breath test machines are maintained by the Knights Templar of the police state -- DPS licensed technical supervisors who are supposed to perform regular maintenance on the machines and testify in court that everything is hunky-dory with the machine. But how much testing is performed to determine whether moving the machine from location to location affects its ability to do whatever the hell it's supposed to do? How much testing is performed to determine if the communications systems in the BATmobiles interferes with the machine's innards? How much testing is performed to determine if the machines are affected by the ambient air both inside the van and outside in the real world? More importantly, has the (pseudo)scientific director of the DPS approved this new initiative?
Thursday, May 27, 2010
Mine eyes have seen the glory that used to be the 4th Amendment
What better way to celebrate Memorial Day than making a mockery of the 4th Amendment?
In 1868, General John Logan, Commander of the Grand Army of the Republic declared May 30, 1868 a day to remember those who died in defense of the United States during the Civil War. General Order No. 11, issued on May 5, 1868, was the birth of what we now know as Memorial Day.
Once again law enforcement officials will be out in full force over the holiday weekend looking to arrest motorists on suspicion of driving while intoxicated. Those who exercise their right to decline to blow into the state's breath test machine will be subject to forced blood draws pursuant to warrants signed by judges who agree to ignore the right of an individual to be free from unreasonable search and seizure.
The lone saving grace to this continued effort to eliminate the rights of motorists accused of DWI, is that the process of drawing blood is far more complicated than huffing and puffing into the state's little black box and that it therefore affords the state more opportunities to screw up.
As usual, the best advice on how to avoid becoming a victim of the state's vampire squads is not to drink and drive over the holiday weekend. Be safe out there, wear cloves of garlic around your neck, replace the fuzzy dice with a silver crucifix and make sure you have an extra hammer and stake (I'll take mine medium) in the trunk.
One of these days we may be honoring the 4th Amendment along with the dead on the fourth Monday in May.
In 1868, General John Logan, Commander of the Grand Army of the Republic declared May 30, 1868 a day to remember those who died in defense of the United States during the Civil War. General Order No. 11, issued on May 5, 1868, was the birth of what we now know as Memorial Day.
Once again law enforcement officials will be out in full force over the holiday weekend looking to arrest motorists on suspicion of driving while intoxicated. Those who exercise their right to decline to blow into the state's breath test machine will be subject to forced blood draws pursuant to warrants signed by judges who agree to ignore the right of an individual to be free from unreasonable search and seizure.
"If you have concerns or fears about needles, just know you'll have one chance -- and one chance only -- to provide a breath sample first." -- Catherine Evans, Chief, HCDAO Vehicular Crimes Section.As usual, the Harris County District Attorney's Office shows its general disdain for the citizenry's right not to incriminate themselves. Heaven forbid the state be required to obtain its evidence legally without the help of the "second prosecutor in the courtroom."
The lone saving grace to this continued effort to eliminate the rights of motorists accused of DWI, is that the process of drawing blood is far more complicated than huffing and puffing into the state's little black box and that it therefore affords the state more opportunities to screw up.
As usual, the best advice on how to avoid becoming a victim of the state's vampire squads is not to drink and drive over the holiday weekend. Be safe out there, wear cloves of garlic around your neck, replace the fuzzy dice with a silver crucifix and make sure you have an extra hammer and stake (I'll take mine medium) in the trunk.
One of these days we may be honoring the 4th Amendment along with the dead on the fourth Monday in May.
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