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?