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.

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?

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)

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.

Harris County's runaway grand jury: a blawgosphere summary

On Monday morning, two high-level prosecutors in the Harris County District Attorney's Office will appear in the 185th Judicial District Court for a show cause hearing to determine whether they should be held in contempt of court for obtaining transcripts of grand jury testimony in the HPD Batmobile investigation.

Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:

"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)

"The BAT van show-cause order," Defending People (Nov. 2, 2011)

"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)

"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)

"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)

"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)

"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)

"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)

"What you say can be used..." Sustained (Oct. 27, 2011)

"The plot thickens," The Defense Rests (Oct. 26, 2011)

"A rat in a trap," The Defense Rests (Oct. 26, 2011)

"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)

"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)

"Runaway jury," The Defense Rests (Oct. 24, 2011)

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

Judge calls top prosecutors on the carpet

Oh, what tangled webs we weave...

As you already may know (if you read Murray Newman's blog), two top-ranking prosecutors and two court reporters have been called on the carpet by State District Judge Susan Brown to explain why she shouldn't hold them in contempt of court.

It would appear that transcripts of secret grand jury testimony found there way into the hands of Carl Hobbs and Steve Morris. Mr. Morris is the head of the grand jury division and Mr. Hobbs is, ironically enough, head of the government integrity bureau.

Left unsaid, interestingly enough, is how Judge Brown found out that the Harris County District Attorney's Office had obtained transcripts of grand jury testimony regarding HPD's batmobile fiasco.

Would it surprise anyone if Mr. Hobbs and Mr. Morris are sacrificed by Pat Lykos to the gods of public opinion in an attempt to hold on to her rapidly sinking ship? This is some serious shit Mr. Lykos has stepped in and there doesn't appear to be a tidy way to dispose of it.

13 Undercover first exposed maintenance problems with the BAT vans that could have led to bad test results. The DA now says the breath tests are sound. The grand jury is trying to figure out when did the DA First hear about the problems and did they speak up about it as the law requires.

But then there's the curve ball. According to this story from KTRK-13, the breath tests in question are suddenly valid again. But wait, you ask, wasn't it just last week that Ms. Lykos said she couldn't trust HPD when it came to breath tests conducted in the batmobiles?

What changed? Are we suddenly going to pretend that Amanda Culbertson made it all up? Has Ms. Lykos forgotten the e-mails outlining the problems with the batmobile program? Or is it just a case of her realizing that she opened her mouth without thinking in a desperate attempt to deflect blame for the situation?

Why do I get the impression that what's going to happen on the 6th floor at 1201 Franklin is going to resemble the closing scenes in Casino in which the the crime lords decided that Joe Pesci's character is just a little bit too dangerous to leave alive? Or maybe the sequence in Goodfellas when Robert DeNiro kills off everyone who participated in the airline heist? Or maybe...

A rat in a trap

As my colleague Murray Newman reported earlier today, four prosecutors with the Harris County District Attorney's Office were subpoenaed to testify before a grand jury today. The grand jury is looking into HPD's Batmobile program.

Well, Pat Lykos is not taking this lying down. First she sent her minions to Judge Brown in the 185th and demanded she tell the grand jurors to let her prosecutors in the room. Judge Brown politely declined. Then she fired off a request to the 14th Court of Appeals to order the grand jurors to let her prosecutors in the room. Again the answer was no.

The topic du jour would appear to be when the DA's office found out there were problems with the Batmobiles and just how many folks were prosecuted using evidence that has since been found to be unreliable.  With that we're no longer just talking about Brady violations and the possibility of a lot of writs, we're also talking about ethics violations.

Prosecutors have a duty to see that justice is done. Prosecuting people with evidence you know is unreliable is not fulfilling one's ethical duties.

It also raises questions about the reliability of breath testing in general. If the police can't maintain their machines in the Batmobiles, what makes you think they're maintaining them at the police station? We know now that these machines are sensitive to temperature and humidity. What else causes them to go haywire? And since the machines run a self-diagnostic check, what guarantee is there that the machines are operating properly.

HAL ran a self-check and determined that he was functioning properly. We all know how well that went.

And then there's this gem...  

Lykos tells us she still doesn't know what went wrong inside that grand jury room last week that nearly led to the arrest of two of her top assistants, despite the fact one of them was in the room with us during the interview. What she does know is that she no longer wants HPD supervising its own DWI vans.

"That's what perturbs me," she said.

Lykos told us Monday she's done trusting HPD to tell her the truth about DWI testing.

"We were never informed there were questions about whether the tests were valid," Lykos said.

What's this? A public pronouncement that the chief prosecuting attorney in the county doesn't trust the biggest police department in the county to run its own breath testing program. If the DA won't trust HPD to be truthful about its breath testing program, why should a jury? If Ms. Lykos said she can't trust them, how can a prosecutor, in good faith, present evidence to a judge or jury regarding a breath test conducted under the auspices of HPD?

Now the only question remaining is whether Ms. Lykos will accept responsibility for what has transpired or whether she will seek out a scapegoat (or two) and leave them hanging in the wind for all the public to see. I know where I'm putting my money.



See also:

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

"The voice of the people," Gamso - For the Defense (Oct. 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

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.

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.

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.

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.

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.

A legal fiction

Texas courts like to maintain this legal fiction that license suspensions following a breath test refusal or failure are just civil matters. As a result of that fiction, at a license suspension hearing, the attorney for the Department of Public Safety must only show that the arresting officer had probable cause to believe the driver was driving while intoxicated.

Since it is treated as a civil matter, double jeopardy does not apply. Unless one is found not guilty by a jury, the DPS can still suspend a motorist's license even if the DWI case is dismissed.

Since it is treated as a civil matter, a motorist arrested for DWI does not have the right to consult with an attorney before deciding whether or not to submit to a breath test.

But how does the following statement fit within that legal fiction?

"If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not your are subsequently prosecuted for this offense." -- DIC-24

A license suspension certainly sounds like a criminal sanction and this nonsense about a refusal being admissible in a criminal prosecution exposes this legal fiction for what it is -- a cheap end run around the 5th and 6th Amendments.

At the point an officer asks a motorist to submit to a breath test, that motorist is already under arrest for drunk driving. At that time the motorist is sat down in front of the breath test machine, he isn't free to leave. No matter his response, the answer is testimonial. That triggers the 5th Amendment. As being asked to submit to a breath test is a significant moment in a DWI investigation, that should trigger the motorist's 6th Amendment right to an attorney.

Would the presence of an attorney gum up the works? Yep. Might allowing a motorist to consult with an attorney before deciding whether or not to blow result in more informed decisions? You bet. Would the presence of an attorney reduce the intimidation factor at the station house? Without a doubt.

It's time to end this legal fiction in Texas. Either eliminate the civil proceeding or be honest and criminalize breath test refusals. But doing that might just expose the legal fiction for what it was.

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.

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.