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)

'Tis the season to give

If you're planning on drinking and driving over the holidays, you might seriously think twice. More and more counties will be conducing No Refusal weekends over the holidays.

The popularity of the initiative is no surprise given that most no-test drunk driving trials are a coin flip proposition. Add in a number on a piece of paper and, suddenly, the success rate for the prosecution soars. That number can be scary.

The attraction for law enforcement and prosecutors is that blood evidence is a powerful tool in front of juries. Armed with blood evidence of intoxication, prosecutors can win convictions in more than 90 percent of drunk-driving cases, said Houston police Capt. Carl Driskell, who works in the traffic enforcement division. 

And often, lawyers say, defendants faced with blood evidence admit their guilt and don't bother with a trial. "If it bleeds, it pleads," said Fort Worth prosecutor Richard Alpert.

But, it's only a number.

Blood tests are conducted by unbiased scientists wearing white lab coats. They're performed by employees of law enforcement agencies. The very people who are trying to convict your client are the ones performing the tests.

Just think about that for a second. Think about that before you walk your client up to the bench to plead out the case. You don't accept the officer's opinion that your client was intoxicated. You don't accept the premise that the coordination exercises he performed at the scene are conclusive proof of anything. But you will accept a number on a piece of paper signed by a lab technician in the employ of the crime lab or the DPS as proof positive that your client is up a creek without a paddle.

You realize they didn't even test the blood itself?

What? You didn't know that? Remember all that talk about Henry's Law with the alcohol jar attached to the back of the breath test machine? Remember that machine supposedly measured the amount of alcohol vapor in your client's breath? It was an approximation of an indirect measurement.

Guess what. That's all a blood test is. After they mix a bunch of chemicals and salt into the blood sample, the lab tech takes out a sample of... air. That's what's being sent through that fancy gas chromatograph. Not blood - air. It's as much an indirect measurement as a breath test.

Prosecutors around the state push for No Refusal weekends because they know that most defense attorneys will crumble when they see the number. Put the state to its burden. Force the prosecutor to explain to a jury how the machine works. It's only a number.

Blood or breath?

Is a blood test more accurate than a breath test? Is either one reliable when it comes to proving whether a motorist had an alcohol concentration of .08 or higher?

The answer in Austin may very well be no and no.

Are Blood Alcohol Tests Credible?: MyFoxAUSTIN.com

An Austin defense attorney reported that his client had a blood sample taken on a No Refusal weekend. That sample was tested by the Austin Police Department's crime lab. The result came back showing his client had an alcohol concentration of .10. The defense attorney had the blood retested by the Southwestern Institute of Forensic Science in Dallas. Their test showed an alcohol concentration of .08.

What happened?

While it is true that as alcohol metabolizes in the body the alcohol concentration decreases, when blood is stored in a sealed tube there is no way for the alcohol in the blood to metabolize. In fact, it is more likely that the alcohol concentration would increase due to contamination of the blood.

First a little primer on blood testing. When a blood sample is drawn in a DWI case, the person drawing the blood typically makes two draws in two separate tubes. One tube is the "state's" tube and the other tube is there in case the defense wants to retest it. The technician in the lab will prepare two samples from the tubes for testing in a gas chromatograph. This gives us four test results. Typically the lowest result is the alcohol concentration used at trial.

In Austin, however, they average the four results to come up with an alcohol concentration. That raises questions of which blood sample is the actual sample to be used at trial. It also raises questions about the validity of the method by which APD determines alcohol concentration.

APD officials weren't concerned about the 20% discrepancy in the test results. What's a couple hundredths of a gram anyone, right?

APD claims that the differing results could have been caused by evaporation of the alcohol in the test tube -- except that the tubes are supposedly sealed and refrigerated to prevent degradation of the samples. And what about that pesky Henry's Law that states whenever you mixed water and alcohol in a closed system, the concentration of alcohol in the water and the concentration of alcohol in the headspace is the same? A sealed test tube is a closed system.

Just a little something to think about.

You can call it what you will, but it's still illegal

You may remember Ruben Trejo, he's the former HPD sergeant who collided with a school bus on his way to work -- with an alcohol concentration of .176. On Friday, Mr. Trejo pleaded guilty to driving while intoxicated, paid a $500 fine and was placed into the Harris County District Attorney Office's pretrial intervention program (DIVERT).

Trejo, who has retired from the department, was allowed to the Harris County District Attorney's pretrial intervention program in which defendants plead guilty to DWI, but the verdict is deferred for a year. If the defendant completes all the requirements in the program, there is no conviction but the initial arrest remains on record.

What's wrong with this picture, you ask?

When a defendant opts for deferred adjudication in a criminal case, she enters a plea of guilty before the court, the judge then states that he finds enough evidence to find her guilty but that he will withhold a finding of guilt for a period of time (the length of the probation). Once the defendant completes her probation the criminal case will be dismissed and she will be eligible to file a petition for nondisclosure.

The problem is that deferred adjudication is not available for anyone charged with driving while intoxicated in Texas - even though it is available to a person charged with murder. The Houston Chronicle article points out, in plain English, why the DIVERT program is illegal.

Calling it pretrial intervention doesn't change that fact. Once the defendant enters a plea of guilty on a DWI case, there is nothing the judge can do (legally) other than record it as a conviction and sentence accordingly. As soon as the judge states she is deferring a finding of guilt, we're talking about deferred adjudication.

Isn't it ironic? (Don't you think?)

Sgt. Roy Marquez of the Houston Police Department's Traffic Enforcement Division (the guys in charge of the DWI task force) found himself on the opposite side of the line earlier this week in Pasadena. It seems that Sgt. Marquez ran a red light and ended up rolling his SUV after being struck by another car. It also seems that Sgt. Marquez had had a little bit to drink that night. After he declined the offer to blow into the breath test machine, a search warrant was signed authorizing the state to jab a needle into his arm and draw his blood. A blood test then showed an alcohol concentration of .127.

The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.

Enjoy the irony...

HPD officers disciplined for role in cover up

The other shoe fell on Tuesday as seven police officers, including an assistant chief, were disciplined for their role in attempting to cover-up an accident involving an HPD officer whose blood alcohol concentration was more than twice the legal limit.



On April 13, 2011, Houston Police Department Sergeant Ruben Trejo collided with a private school bus while driving to work in the afternoon. A blood test showed Mr. Trejo had an alcohol concentration of .203.

According to accounts, officers covered up open bottles of alcohol in Mr. Trejo's vehicle and threatened to arrest anyone taking pictures of the scene.

This same behavior by non-peace officers would have resulted in criminal charges being filed. But for uniformed police officers attempting to cover up a crime by a fellow officer, the punishment ranges from a slap on the wrist to a day without pay.

I would have posted a copy of the accident report except that HPD accident reports are no longer available for download on Vectra.com.

What's the point?

To secure a defendant's attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. -- Texas Code of Criminal Procedure Art. 17.40(a)

The other day I was sitting in court when the judge called up everyone making their first appearance. He had the prosecutor read the probable cause statement. On every DWI case he asked the prosecutor whether there was an accident or a breath test.

The first defendant was a young man (I'm guessing he was in his 20's, but as I'm getting older, my ability to guess ages is in rapid decline). There was no accident in his case - but there was a breath test. A breath test of .000. The arresting officer suspected he was under the influence of something other than alcohol so a drug recognition evaluation (more voodoo science for another day) was performed. Apparently our hero had taken a central nervous system depressant or two.

The judge order the young man to install an ignition interlock device in his car.

I found it to be quite odd - as did the attorney sitting next to me. It's not like an ignition interlock is going to detect the presence of CNS depressants (other than alcohol) in one's breath. If this young man had a problem, it certainly didn't appear to be with alcohol.

A couple of minutes later we had DRE number two on the morning. Again we had a breath test well under the legal limit. And, again, the judge ordered the defendant to install an ignition interlock device on her car.

The law says a judge shall order an ignition interlock device as a condition of bond for a defendant who has at least one prior conviction for driving while intoxicated. The law also says that a judge may order an ignition interlock device as a condition of bail in a case with a breath or blood test over .15.

So what's going on here? Ordering the installation of an ignition interlock when a person clearly was not intoxicated by consuming alcohol makes little or no sense. It certainly doesn't do anything to enhance the safety of the community.

All it appears to do is line the pockets of the companies that distribute, install and maintain the devices. I do wonder where that money goes.

Interlock bill would make a mockery of the 10th Amendment

According to my latest issue of Interlock Focus, published by Consumer Safety Technology, Inc. (the folks who make the Intoxa-Lock), los federales are looking to make (yet) another end run around the 10th Amendment.

Senators Tom Udall (D-NM) and Frank Lautenberg (D-NJ) are sponsoring the "Drunk Driver Repeat Offender Prevention Ace of 2011." Unfortunately for the two senators, it doesn't look like they could come up with a fancy little acronym to make it sound more palatable. Better luck next time, guys.

The bill would require states to pass a mandatory interlock requirement on drivers accused of DWI with a prior conviction. The states would have until 2014 before los federales would start taking away highway funds. Sound familiar?

It should. This is the same formula Congress used to force states to raise their legal drinking ages to 21 and to lower the per se alcohol concentration to .08. The bill would dock any state who didn't go along 2% of its road construction funding. That rate would increase to 4% in year two up to a maximum of 8%.

Now here's a challenge for Sens. Udall and Lautenberg -- please point out to me where in the Constitution driving while intoxicated is listed as a federal crime. And you tea-drinking, limited government loving Republicans, do explain to me how this bill advances the agenda of limiting government intrusion in our lives.

Somehow I don't think I'll be getting any responses.

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.

A regulation by any other name isn't worth a damn

In order for scientific evidence to be admissible in a Texas court, the party wishing to put such evidence before the court must show that (1) the underlying scientific theory is valid, (2) the technique applying the theory is valid and (3) the technique was applied properly on the date in question. This is known as the Kelly standard.

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.

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:

[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.

Where did he come from?

And at what point, if any, did our hero realize that something was (horribly) wrong? From the Houston Chronicle:

A driver who hit a pedestrian along Interstate 45 in southeast Houston early this morning didn’t stop even though the victim smashed through his windshield and landed in the front passenger seat, officials said. 

The driver, identified as 45-year-old James John Onak, was charged with  felony accident involving injury in the 177th State District Court, according to a Houston Police Department news release.  

The collision occurred in the 12200 block of the southbound Gulf Freeway near Fuqua about 12:30 a.m. Tuesday, according to the Houston Police Department.
Police said the 32-year-old victim, whose name has not been released, died at the scene.
No other injuries were reported. 

Police said a man was driving his Ford Explorer on the freeway when it broke down. He pulled to the shoulder and got out and began trying to cross the freeway. 

The man was hit by a black Mazda, driven by Onak, police said. Police said the collision forced the victim’s body through the windshield, and he landed in the front passenger seat inside the car. 

Onak did not stop after the collision, police said. Police said he allegedly got off the freeway and drove a few blocks before a Precinct 8 Harris County Constable pulled him over at 11600 Kirkvalley near Beamer, and the deputy noticed the car’s front was damaged. Then the deputy saw the victim in the car, police added. 

Police said Onak told the deputy he had hit something on the freeway and that he didn’t know the victim was in the passenger seat beside him. 

Onak was believed to be under the influence and a mandatory blood draw was taken. 

I'm thinking the sound of a body crashing through the windshield and landing in the passenger seat would be enough to alert anyone that there was a problem.

Sadly enough, this isn't the first pedestrian through a windshield story I've come across.

I have no idea whether Mr. Onak was intoxicated or not that evening. I'm fairly certain that had he remained at the scene the endgame of this said incident would be a bit more favorable to him. As a result of his not remaining at the scene, Mr. Ornak is facing a felony charge of an accident involving death.

Depending on the circumstances surrounding the accident, Mr. Ornak might actually stand a better chance to defend himself against a charge of intoxication manslaughter as the state must prove that the accident was caused by his being intoxicated. Having a pedestrian attempting to cross the freeway in the middle of the night is not a circumstance that any driver can reasonably anticipate facing while driving.

How much warning did Mr. Onak have that someone was trying to run across the freeway? What kind of clothing was the pedestrian wearing at the time? Under those conditions, would an ordinary driver with an alcohol concentration of less than .08 (or who had the full use of their mental and physical faculties) have been able to avoid the accident?

Unfortunately for Mr. Onak, by driving on he has handed the prosecution a gun and a golden bullet with his name on it. The state doesn't have to prove that the accident was avoidable. All they have to prove is that he was involved in an accident in which a man was killed and he didn't remain or return to the scene.

Information - Onak

Perry signs HB 1199 into law

On Friday, Governor Rick Perry signed HB 1199 into law. As of September 1, 2011, it will be a Class A misdemeanor if a motorist is arrested for driving while intoxicated and a breath or blood test shows an alcohol concentration of 0.15 or higher.

The new law does not provide how long after the stop the breath or blood specimen must be tested or obtained. The new law does not take into account whether the motorist is in the absorption or elimination phase at the time of the test. The new law does not explain why an arbitrary alcohol level was selected as the line of demarcation between Class A and Class B misdemeanor DWI.

Prior to the passage of HB 1199, the seriousness of a drunk driving charge depended upon whether the defendant had a prior conviction for DWI or whether anyone had been seriously injured or killed as a result of an accident with the defendant. Now we're going to determine the seriousness of the charge based on a chemical test alone. This is a very bad precedent.

This new law will put more pressure on judges to sign off on faulty blood warrants when motorists exercise their right to refuse to submit a breath sample. This new law will put more pressure on local authorities to make "No Refusal" Weekends the rule rather than the exception.

Maybe the real purpose is to scare motorists away from challenging their cases before a jury. Cases with high test scores and good videos are prime candidates for trial -- asking the jury whether they are more inclined to believe what they see (the video) or what they hear (the breath test result). Come September, these motorists will be confronted with the choice of going to trial on a Class A misdemeanor or taking the state's offer of a Class B on cases with high test scores.

That's the ticket for the State of Texas - got questions with the pseudo-science behind the breath test machine? Just legislate the questions away by waving a larger stick.

More thoughts on HB 1199

Yesterday I wrote about HB 1199 which would make it a Class A misdemeanor in Texas to have an alcohol concentration of 0.15 or higher at the time of a breath or blood test. There were a couple of additional points I wanted to make in regards to this ill-conceived piece of legislation.

First, did the authors of the bill, Rep. Pete Gallego (D-Alpine) and Rep. Trey Martinez Fischer (D-San Antonio), give any consideration as to how the new law would be enforced? Does this bill mean that any DWI case in which there was a breath or blood test over 0.15 is to be filed as a Class A misdemeanor? Or does it mean that the high test is an enhancement for punishment? Does it mean that the jury must make an affirmative finding that the defendant's alcohol concentration was over 0.15?

On the other hand, maybe the bill will provide ammunition for those who would require a jury not only to be unanimous as to whether a motorist was intoxicated, but also unanimous as to the theory of intoxication. Would defense attorneys look to argue the accuracy of the breath test machine not only on low test cases but also on cases in which the breath test was 0.15 or higher?

Second, the bill provides yet another disincentive for a motorist to submit to a breath or blood test. Unless, of course, the next step is to make breath or blood tests mandatory in drunk driving cases. And what of the disparity in sentencing? You may have a case with particularly bad facts in which a motorist refused to submit to a test and is charged with a Class B misdemeanor while another case may have decent facts but the motorists blew over a 0.15 and is charged with a Class A. Where's the justice in that scenario? The second driver did just what the state wanted him to do and he gets the worst of it.

HB 1199 is a bad piece of legislation that leaves us with more questions than answers.

Yet another assault on motorists

On May 30, 2011, the Texas Legislature sent HB 1199 to the governor, it having passed both houses. Under Texas law, the governor may sign a bill into law, veto a bill or allow it become law by letting it sit on his desk for ten days. Since the regular legislative session ended before the expiration of the ten days, the bill must sit for twenty days before it can become law without the governor's signature.

That means that June 19, 2011 is the day on which the Abdallah Khader Act will become law in the Lone Star State. Now, first of all, if a bill is named after a person, you know it can't be good for anyone charged with a crime since Rule No. 1 of lawmaking is that bad facts make bad laws.

Abdallah Khader just turned five. When he was two, his parents' car was rear-ended by a man alleged to have had an alcohol concentration three times the legal limit. Abdallah has been in a vegetative state ever since.

It's a tragedy. There are no two ways about it. But there are people who are injured and killed by motorists who aren't intoxicated. There are people who are injured and killed by motorists with alcohol concentrations just over the legal limit.

HB 1199 won't do anything to bring Abdallah out of his coma. HB 1199 won't do anything to prevent another accident. What HB 1199 will do is subject motorists to more severe punishment even if there is no accident and no injuries.

If HB 1199 becomes law it will become a Class A misdemeanor, with a maximum punishment of up to one year in jail, to have an alcohol concentration of 0.15 or higher at the time of a breath or blood test. That's right - not at the time of driving, but at the time of the test. The problem with that is that it's not against the law to have an alcohol concentration of greater than .08 unless you are driving at the time. And why 0.15? That's less than twice the legal limit. What relationship does that have with the sad case of Abdallah Khader?

Current law requires the state to prove that a motorist's alcohol concentration was over the legal limit at the time of driving. This means we must sit through an exercise in pseudo-science known as retrograde extrapolation where the state's "expert" testifies that a person's BAC was a certain level at the time of driving based solely on the BAC at the time of the test and the length of time that passed between the time of the stop and the time of the test.

The state needn't concern itself with such details as the weight or sex of the motorist. Never mind the make up of the motorist's blood. No need to concern yourself with what the motorist last had to eat or whether he's in the elimination or absorption phase. Who cares what that particular person's ratio of breath to blood is? Just give the state's "expert" a calculator, a BAC and two times and voila, proof of intoxication.

Now the legislature wants to make it even easier for the state.

HB 1199 is yet another reason a motorist should never submit voluntarily to a breath or blood test. The next step in the state's assault on our rights is to "criminalize" a breath or blood test refusal.

I'm just curious why the fair-haired one hasn't signed this one into law as part of his campaign to show America just how tough on crime he is.

Diverted from justice

While I was sitting in a courtroom at the Harris County Criminal (In)justice Center the other morning I couldn't help but listen in on the proceedings at the bench.

It seems that a woman who was charged with driving while intoxicated chose to enter the DIVERT program. As part of her "probation" she had an ignition interlock device installed in her car. It appeared that there were a few incidents in which the device detected alcohol levels greater than .02 on her breath. Someone (the DA's office, the probation department, pretrial services?) wanted to terminate her participation in DIVERT.

The judge looked at the printouts and asked the woman a few questions before telling her attorney that he would allow her to withdraw her plea, enter a new plea and leave her on probation instead of sentencing her to 30 days in jail. The attorney asked the judge what he was supposed to do.

The attorney pointed out that the pretrial diversion agreement was between the defendant and the DA's office. The judge pointed out that she had entered a plea of guilty in exchange for 30 days in jail as part of her entranced into the program. Per the contract, the 30 days was probated.

The attorney said he didn't think the DIVERT program was even legal.

The judge told the attorney that he had raised concerns about the legality of the program on prior occasions and that he made no attempt to hide his concern about defendants entering pleas of guilty as part of the program.

Keep in mind that these were just allegations that she had consumed alcohol while on probation. There was nobody present to testify that the device was working properly on the days in question. There were no maintenance or calibration records. There was no expert to testify that the interlock device was reliable. There was no one to testify as how the little box even works. How does it clean itself after a blow? What is the scientific basis of the box? How does it calculate an alcohol concentration?

It's a little box with a tube.

But the defendant was boxed in. She had already plead guilty. She was, to put it bluntly, screwed.

I have written many times about my concerns with the DIVERT program - and those concerns have to do with the practice of the defendant entering a guilty plea before the court. As I have stated before, DIVERT is not a pretrial diversion, or intervention, program; DIVERT is deferred adjudication for first-time DWI offenders. The program is not legal and it is questionable whether anyone who participates will be able to expunge the arrest from their records.

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.

Office policy

Last week, my colleague Mark Bennett wrote about his experience with a "total refusal" case. His client declined to perform the officer's agility tests at the scene or at the station and declined his request to blow in the state's breath test machine.

Her reward, of course, was being arrested for driving while intoxicated. In the courtroom, Mark told one of the prosecutors that the case was a "try it or dismiss it" case and that he thought it should be dismissed. The prosecutor then informed him that it was "office policy" to try all total refusal cases.

My first thought was this: another stupid Lykos policy, implemented without consideration of the ethical ramifications. Trying all total-refusal cases might be politically-appealing: it might encourage people to cooperate with the police agility exercises by sending the message that refusing to play is not a free pass; it might make the DA appear to the SWRVs to be tough on crime. 

But a policy of trying all total-refusal cases will result in people being put to trial on legally insufficient evidence—a waste not only of the defendant's time, but also of valuable and increasingly scarce public resources. Every court day spent trying a total-refusal case is a day that could be spent trying a family-violence assault case; for every frivolous case the DA's Office tries, it has to lower its plea offers on a host of other cases. 

Further, even when the evidence is legally insufficient, anything can happen in a jury trial. In every case, there is a chance that something will go wrong for the government, or that something will go wrong for the defense. If the government forces enough cases that should be dismissed (because the evidence appears to be nowhere near proof beyond a reasonable doubt) to trial, someone will be convicted. So, aside from wasting resources, a policy of trying all total-refusal cases will result in people being convicted on factually and legally insufficient evidence.

I don't know how to break it to Ms. Lykos' minions -- "office policy" doesn't trump a prosecutor's ethical duty to see that justice is done. If you have no evidence other than an admission of drinking and an alleged traffic violation - you don't have sufficient evidence to force a citizen to defend themselves in front of a jury.

That's not enough to expose a motorist to a $3,000 surcharge as well as probation fees and community service - not to mention the stigma of being a convicted criminal. Law clerks follow "office policy." Attorneys are professionals who are trained to think for themselves. Presumably a prosecutor in the courtroom is competent enough to evaluate a case to determine whether or not it should be dismissed or prosecuted. A prosecutor who decides to dismiss a dog shouldn't have to justify that decision to his boss. Such a policy only discourages prosecutors from acting like attorneys.

Of course prosecutors aren't the only folks over at the Criminal (In)justice Center who blindly apply "office policy" to cases.

Recently I was retained on a DWI case in which my client declined to blow in the state's breath test machine. At his arraignment setting the judge ordered him to install an ignition interlock device in his car. I asked the judge why he would require an interlock in a case in which there was no accident and no breath test.

The judge responded that he always requires an interlock if there was an accident, a breath test over .15 or a breath test refusal. He doesn't, however, require an interlock if the breath test is under .15. It's a policy that makes no sense.

The judge hasn't read the offense report. The judge hasn't seen the video. All the judge knows is whether there was an accident or a breath test. Might my client have had an alcohol concentration of .15 or higher? Sure. Might he had had an alcohol concentration of more than .08 but less than .15? Yes. Might it have been less than .08? Certainly.

Regardless of what his alcohol concentration may or may not have been, my client is innocent unless the state can prove each and every element of its case beyond all reasonable doubt. By ordering an interlock device as a condition of bond for a motorist who declined to blow, the judge is casting the presumption of innocence aside.

All in the name of "office policy."

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?

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.

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?