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breathalyzer

Commissioners Court to get deposed

This ought to be interesting.

Harris County Judge Ed Emmett and all four county commissioners are scheduled to be deposed Monday in a federal lawsuit filed by former Houston Police Department crime lab supervisors who said they experienced retaliation after exposing problems with a mobile DUI testing program.

Amanda Culbertson and Jorge Wong say the Harris County District Attorney’s Office and county commissioners colluded in having them fired after they revealed problems in HPD’s breath-alcohol testing vehicles, known as “BAT vans.”

At the time of the terminations, Culbertson and Wong were working at a Lone Star College laboratory that supervised under-the-influence testing for the Harris County Sheriff’s Office. They say they lost their jobs when commissioners voted to cancel the Lone Star contract.

While working as analysts for HPD, Culbertson and Wong exposed problems with the BAT vans that complicated DUI prosecutions.

In retaliation, their 2012 lawsuit says, former Harris County District Attorney Pat Lykos and Assistant District Attorney Rachel Palmer lobbied commissioners to cancel the county’s long-standing contract with their employer, Lone Star. The county subsequently signed a more costly deal for lab work with the Texas Department of Public Safety.

In September, U.S. District Judge Lynn Hughes authorized the depositions of commissioners El Franco Lee, Jack Morman, Steve Radack and Jack Cagle as well as Emmett and his criminal justice adviser Doug Adkinson. The judge also limited each inquiry to one hour.

[…]

HPD began using the BAT vans in 2008. Into early 2011, Culbertson reported temperature and electrical irregularities with instruments that could influence the integrity of tests, the lawsuit said.

In May 2011, Culbertson testified in a DUI trial that she could not verify a device had been working properly during a test. In July 2011 testimony, she said she could not trust the accuracy of a van analysis. That same month, Palmer, the assistant district attorney, wrote a memo to a supervisor in which she concluded that Culbertson “could not be trusted to testify in a breath test” and that she was “gravely concerned” about Culbertson’s ability to “testify fairly” in the future.

Culbertson and Wong resigned from HPD in 2011 to become technical supervisors at Lone Star.

In the fall of 2011, the college’s contract of nearly three decades with the county – which had been renewed annually – was terminated in favor of a more expensive DPS deal. Culbertson and Wong were fired by Lone Star in October 2011, shortly after the commissioners transferred the testing business.

Hughes dismissed the lawsuit in August 2013, but that decision was reversed by the 5th U.S. Circuit Court of Appeals in June. All claims against Lykos have been dismissed or settled, and all claims against Palmer have been tossed.

See here and here for some background. As I’ve said before, I haven’t followed this story closely enough to have a firm about about it, but as having all five members of the Court deposed in a lawsuit is an unprecedented situation, I figured it was worth noting. The Press has more.

Lawsuit against county by former crime lab supervisor partially reinstated

It’s a bit of a convoluted story.

A federal appeals court has reinstated portions of a lawsuit filed by two former Houston Police Department crime lab supervisors who contended that Harris County prosecutors retaliated against them after they exposed problems with the city’s breath-alcohol testing vans, or “BAT vans.”

In a 36-page opinion issued on Monday, the U.S. 5th Circuit Court of Appeals remanded some claims asserted in the 2012 lawsuit filed by Amanda Culbertson and Jorge Wong back to a Houston federal trial court.

Most of the original lawsuit, which was largely dismissed on the pleadings before any substantial discovery such as depositions, now returns to U.S. District Judge Lynn Hughes for further consideration and a possible trial.

[…]

The original lawsuit alleged that the lab supervisors lost their jobs after raising concerns about the reliability of tests conducted by HPD’s breath-alcohol testing vehicles because of a retaliatory campaign by then-Harris County District Attorney Pat Lykos and Assistant District Attorney Rachel Palmer.

Houston began using the mobile instruments in 2008. By mid-2009, Culbertson began to notice temperature and electrical irregularities with vans that could influence the integrity of tests, the lawsuit said. Culbertson and Wong expressed concerns about problems that could have led to test inaccuracies into early 2011.

In May 2011, Culbertson testified in a trial that she could not verify that an instrument had been working during a test. She testified in a July 2011 case that she could not trust the accuracy of a van analysis.

That same month, Palmer wrote a memo to a supervisor in which she concluded that Culbertson “could not be trusted to testify in any breath test” and that she was “gravely concerned” about Culbertson’s ability to “testify fairly” in the future.

See here for the background. Culbertson and Wong then resigned from HPD and went to work for Lone Star College, which at the time had a contract with Harris County to supervise breath-alcohol testing for the Sheriff’s office. That contract then got terminated, Culbertson and Wong got fired, and the lawsuit was filed. The Fifth Circuit determined that Judge Hughes erred in dismissing the suit against the county (former DA Lykos settled in 2013 and is no longer a party to the litigation), so back to district court it goes. I don’t have anything clever to say about it, it’s just that this was a nasty little piece of business when it happened, and it serves as a reminder that not all of the problems with the HPD crime lab were the city’s responsibility. I’d guess that a settlement of the lawsuit is the most likely outcome at this point, but we’ll see. Hair Balls has a lot more details, as well as a copy of the Fifth Circuit’s decision, so go read that story if you’re still confused.

DUI and blood testing

Not sure what I think about this.

A decision by the Harris County District Attorney’s Office to demand blood tests for every drunken-driving suspect who refuses breath tests has drawn an unusual opponent: Houston police officers.

“We’re just very concerned it’s going to take officers off the street for an extended amount of time,” said Ray Hunt, president of the Houston Police Officers’ Union.

Hunt said that, unlike officers specially trained to find and arrest drunken drivers, most officers are not used to navigating the system, which includes swearing out a warrant, waiting for a judge to sign it, then finding someone at a hospital to draw the suspect’s blood. A single arrest could take an entire shift, he said.

“They’re not going to be as savvy on how to do these warrants, so it’s going to take them six to eight hours, and that means the officer is off the street for that entire time,” Hunt said. “It’s a major issue.”

Houston defense lawyers echoed that concern.

“Spending so much time, energy and money to prosecute a Class A or Class B misdemeanor is ridiculous,” said Todd Dupont, president of the Harris County Criminal Lawyer’s Association.

Prosecutors say the change, which took effect in April, will save time and money in the long run because drunken-driving cases are more likely to be resolved via plea agreement than a trial.

[…]

In San Antonio, police have been mandating blood testing for all suspected drunken-driving cases for nearly two years. The key, Bexar County prosecutors said, was a gradual implementation and money earmarked for computers, facilities and a nursing staff.

On the one hand, doing blood tests as a matter of routine would lead to much more certainty of outcome, because blood testing is more accurate than the notoriously imprecise Breathalyzers, and not subjective or unproven like field sobriety tests or horizontal gaze nystagmus. The experience in Bexar County appears to be positive, though we didn’t get a defense bar perspective on that. On the other hand, it’s more expensive up front and far more invasive. It is a lot of resources to put into combating a misdemeanor crime, and it doesn’t really do anything about the fact that a relatively small number of repeat offenders are responsible for a disproportionate amount of drunk driving incidents and mayhem. If it means that we’d be getting rid of the less reliable methods of evidence gathering for DUI arrests then there’s value to this, but I’d like to know more before I make up my mind.

UPDATE: Byron Schirmbeck had some questions about this new development as well, and he put them in writing and sent them to the DA’s office. He got this response, which he graciously shared with me for publication here. Worth your time to read.

Former HPD lab supervisor files sues Lykos, county

Here’s a nice little going away present for District Attorney Pat Lykos.

DA Pat Lykos

Two former Houston Police Department crime lab supervisors have filed a federal lawsuit against Harris County District Attorney Pat Lykos, saying the county’s top prosecutor retaliated against them after they spoke out about problems with HPD’s breath-alcohol testing vans.

The lawsuit, filed Monday, was brought against Lykos, prosecutor Rachel Palmer and Harris County by Amanda Culbertson and Jorge Wong, identified as “citizen whistle-blowers” in the lawsuit.

Among several allegations, the lawsuit says that officials with the DA’s office retaliated against Culbertson and Wong by lobbying the Harris County Commissioner’s Court to cancel a contract with a local private laboratory, where the two found jobs after leaving HPD.

The lawsuit also alleges that retaliatory actions taken by Lykos and Palmer included harming Culbertson and Wong’s reputations and putting their licenses as technical supervisors for the state’s breath-alcohol testing program at stake.

Culbertson and Wong said the retaliation began after they expressed concerns about the reliability of tests conducted in HPD’s breath-alcohol testing vans.

“It’s important for citizens to be able to speak openly and publicly about matters of public concern, such as problems with the (breath-alcohol testing) vans and problems with the crime lab,” said attorney Scott Cook, who represents Culbertson and Wong. “That is the heart of the First Amendment.”

I didn’t follow this saga very closely, so let me refer you to some other people who did:

Grits for Breakfast

Paul Kennedy

Murray Newman

See also this Grits post, in which he makes the point that breathalyzers and their efficacy should be under the purview of the Forensic Science Commission but aren’t, and this Big Jolly post, which has video from the plaintiffs’ press conference and a copy of their statements and the lawsuit itself. I’m sure there’s more but that’s plenty for now. I’m also sure Murray’s prediction that this will move along slowly is accurate. Anyone in the peanut gallery want to add something to this?

Report: Most elected officials refuse to contribute to their own prosecution

That’s what the headline to this story should read.

Public records examined by the Austin American-Statesman show that most elected officials who have been stopped on suspicion of driving while intoxicated in recent years have declined to consent to a blood or breath sample.

The newspaper reported Sunday that it turned up cases involving more than a dozen elected officials in Texas — including representatives, senators, judges and commissioners — in which police on the scene asked for a sample to determine whether the driver’s blood-alcohol concentration exceeded the 0.08 legal limit.

Except for two cases, both of which occurred outside the state, the politicians refused, the paper reported.

“Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent,” said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

[…]

“Many people refuse to blow; it’s a growing problem in Texas,” said Karen Housewright, executive director of Texas Mothers Against Drunk Driving. “But we like to think our elected officials would behave as role models and hold themselves to a higher standard.”

That’s one way of looking at it. Another is to note that most elected officials are knowledgeable enough to realize that breathalyzer tests have high rates of error, and consenting to take the test can only help the prosecution. Which, despite the fulminations of MADD and the TDCAA and Williamson County DA John Bradley is not something that anyone accused of a crime is required to do. In fact, as the original story notes, all of the elected officials in recent years who had been pulled over for DWI and refused to take the breathalyzer test wound up either being acquitted or having the charges dismissed. With a track record like that, who among us wouldn’t do the same?

Now, if you want to argue that there’s a certain hypocrisy here, especially with state legislators who routinely vote to get tuff on crime as long as it applies to someone else, I won’t dispute that. But as long as we still have the freedom to not make it any easier for the state to prosecute us, I don’t have any objection to those who exercise that freedom.