Deandra Grant: The Texas DWI Gal

Thanks to Pennsylvania attorney Justin McShane for putting the spotlight on the lawyers who have graduated from Axion Labs/ACS Gas Chromatography school in Chicago.

http://www.TheTruthAboutForensicScience.com/first-lets-educate-all-of-the-lawyers/

From Grits for Breakfast blog:

FRIDAY, DECEMBER 30, 2011

Does pre-conviction shaming deter DWI or just obliterate presumption of innocence?

The Tarrant County District Attorney's website is posting the names of everyone charged with DWI as a supposed deterrent to drunk driving over the holiday weekend, reports the Fort Worth Star-Telegram. But this pre-conviction shaming sanction has its critics:
Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.

"I absolutely condemn driving while intoxicated ... but these people are presumed innocent," attorney Richard Henderson said. "I just don't think that's right."

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.

"There are some people [members] who are very upset about it," Gordon said. "Is he going to pull the information on the case when he loses?"
Good question about what happens when the DA loses a case - haven't they then just slandered somebody who didn't deserve it? In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions. This seems like putting the cart before the horse.

For the DA to do this raises a host of questions about pretrial punishments, presumption of innocence, etc., but commercial media do the same thing all the time. The broader and seldom-broached question is whether it need be reported at all? In Britain, by contrast, most information about criminal prosecutions is confidential pre-conviction. As a young man, I considered that an outrageous restriction on the press, but anymore I'm not so sure. As Grits has written previously, "much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio."

A topic Grits hopes to delve into more deeply in the coming year is the extent to which such pretrial publicity - whether it's the DAs doing it themselves, the Austin Statesman publishing booking photos, a Denton art student putting arrests on Twitter, or Nancy Grace flailing defendants in nationally publicized cases - serves or harms the public interest. Stuff like booking photos, arrest logs, jail logs, etc., are historically public data but nobody but insiders, journalists, and those viewing it in a professional capacity would, as a practical matter, ever access it. Now it can be easily disseminated electronically, but doing so before the conclusion of a criminal case, especially high-profile ones, can be highly prejudicial. Shaming can properly be in and of itself a punishment - indeed, some sentencing theorists actively promote shaming sanctions - but punishment should occur after a conviction rather than merely as the consequence of an accusation that may prove unfounded.

Grits fears the issues surrounding the Tarrant DA's DWI arrest list are merely the point of the spear, and that widespread publication of such data will become a major flashpoint among 21st century privacy concerns. I noticed that over at the Texas Tribune, their largest database app (government employee salaries), drew 125 times as many page views as their most popular news story, at 19.1 million page views compared to 153,000. Their second most popular data app was their Texas inmate database, a service which duplicates one on the TDCJ website, which came in at just over 5 million page views.

With web-traffic flagging, more media are putting unfiltered government data online precisely because of numbers like those - they look at their web traffic and see their prose isn't nearly the draw they hoped it might be, but database apps get much more traffic. Lots of papers these days are putting booking photos online to draw eyeballs, but like the Trib's employee salary database, its draw is mostly a function of voyeurism, not because the practice is a boon to public safety or a driver of improved public policy. Grits considers it ethically questionable for the media to publish booking photos and unproven allegations about non-public figures, and even more problematic when the Tarrant DA engages in public shaming while defendants still retain a presumption of innocence.

I've been away from the blogging world for a few months due to too many trials and flying around giving blood presentations. The last quarter of 2011 was CRAZY!

In the middle of trial today the Judge granted our defense motion to suppress the blood test result due to the blood being drawn in an unsanitary location. As a result of the ruling the State dismissed the case mid-trial. Right result. Happy client.

Thanks to TCDLA and the Harris County Criminal Defense Laawyers Association for putting on the outstanding Top Gun DWI seminar and allowing me to demonstrate cross examination of an expert in a blood test case.

From the Houston Chronicle:


HPD crime lab faces more heat
Former supervisor testifies she quit over accuracy of alcohol tests
By BRIAN ROGERS and ANITA HASSAN

HOUSTON CHRONICLE

July 29, 2011, 6:35AM

Under intense scrutiny for shoddy work during the past decade, the Houston Police Department crime lab faced renewed criticism Thursday when a former HPD lab supervisor dropped a bombshell, testifying she quit because she could not trust the accuracy of breath alcohol tests from the department's testing vans.

Amanda Culbertson said electrical problems including overheating in HPD's six breath alcohol testing vans were well-documented before she and another supervisor quit. The vans are used as satellite offices for Houston police officers to give breath tests to suspected drunk drivers.

"We could no longer choose between a paycheck and our integrity," Culbertson said during a hearing in a DWI case in court-at-law judge Pam Derbyshire's court.

Culbertson, who resigned in May, said she and another supervisor quit because they could not trust the integrity of the results they use to prosecute cases.

Culbertson testified they feared retaliation from Irma Rios, HPD's crime lab director, for disciplining officers and civilian technicians who did not follow strict rules to keep breath-test machines from overheating and measuring alcohol levels inaccurately.

Rios did not respond to calls for comment. The revelations from Culbertson follow recent reports by the Houston Chronicle about thousands of rape kits sitting untested in the HPD property room.

Past problems
In 2002 DNA testing at HPD's crime lab was temporarily suspended after an audit revealed shoddy forensic work including unqualified personnel, lax protocols and facilities that included a roof that leaked rainwater onto evidence. Although the lab resumed operations five years ago, it still carries a backlog of about 4,000 untested rape kits in addition to new cases.

After Culbertson's surprise testimony Thursday, Harris County District Attorney Pat Lykos said her office will investigate the allegations.

"We sponsor the crime laboratory's scientific evidence in our prosecutions," Lykos said in a written statement. "Accordingly, we have a responsibility to ensure that the evidence was collected and analyzed properly."

In court Thursday, Culbertson agreed with prosecutors that the district attorney's office was never notified of the alleged problems.

Defense attorney Dane Johnson, who called Culbertson as a witness, said dozens, even hundreds, of cases may be affected since the vans went in to service in 2008.

He also said HPD's crime lab has been "just a big mess" for years.

Culbertson said she and others trained van technicians to keep air-conditioning units on. Overheating in the van can affect the gauges, Culbertson said. It also can alter the control sample used to calibrate the breath-test machine.

She said an electrical glitch in each of the six vans meant the sophisticated $6,000 machines would reset every time the van's air conditioner came on, which also cast doubts on accuracy.

She testified she was most concerned about cases filed during the hottest times of the year, spring and summer, beginning in 2009.

HPD officials said there were no problems with the integrity of test results because the machines will not function if they are too hot. They acknowledged that there have been problems including air conditioningin the breath alcohol testing (BAT) vans since they were purchased in 2008.

"No cases should be compromised as a result of the temperature in the BAT vans," said HPD Traffic Enforcement Division Capt. Carl Driskell, who oversees the vehicles. "Those breath instruments are either working or they are not."

Driskell said he was surprised to hear about Culbertson's allegations about the machine's accuracy because she never told him about it.

"I don't know where she's coming from," he said. "It's quite a bombshell, quite honestly."

Culbertson testified that she reported the problems to Rios, who was in her "chain of command." She said she was prohibited from talking to other supervisors or to prosecutors about the possible problems.

Driskell said the vans' electrical problems, including the air conditioning, have been resolved.

DWI lawyers await
After HPD officials testified there were no problems with the equipment Wednesday, attorneys Johnson and Jordan Lewis handed Culbertson a subpoena while she was in the courthouse on another case.

Culbertson now works for Lone Star College, which monitors and calibrates breath testing machines for other law enforcement agencies. She regularly testifies about how the machines work and their accuracy.

Jorge Wong, another supervising technician at the crime lab who left HPD, also was subpoenaed to testify. In court, Culbertson said she expected Wong to corroborate her story.

The hearing was cut short when prosecutors asked for a continuance so they could investigate the allegations.

During much of Culbertson's testimony, the courtroom was filled with defense lawyers who specialize in DWI cases, including Tyler Flood.

He said he was shocked last year when he first heard about inaccurate test results and fears of retribution.

He estimated his firm may have 20 cases that could be affected.

Reprinted from Grits for Breakfast:

Grits for Breakfast
Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Monday, August 01, 2011

Paycheck vs. Integrity: Houston PD lab supervisor resigns over faulty breathalyzers, feared retaliation

Yet another bombshell out of the Houston crime lab, as reported over the weekend in the Houston Chronicle ("HPD crime lab faces more heat," July 29), this time regarding breath-alcohol tests. The story opens:

Under intense scrutiny for shoddy work during the past decade, the Houston Police Department crime lab faced renewed criticism Thursday when a former HPD lab supervisor dropped a bombshell, testifying she quit because she could not trust the accuracy of breath alcohol tests from the department's testing vans.


Amanda Culbertson said electrical problems including overheating in HPD's six breath alcohol testing vans were well-documented before she and another supervisor quit. The vans are used as satellite offices for Houston police officers to give breath tests to suspected drunk drivers.


"We could no longer choose between a paycheck and our integrity," Culbertson said during a hearing in a DWI case in court-at-law judge Pam Derbyshire's court.


Culbertson, who resigned in May, said she and another supervisor quit because they could not trust the integrity of the results they use to prosecute cases.


Culbertson testified they feared retaliation from Irma Rios, HPD's crime lab director, for disciplining officers and civilian technicians who did not follow strict rules to keep breath-test machines from overheating and measuring alcohol levels inaccurately.


Rios did not respond to calls for comment. The revelations from Culbertson follow recent reports by the Houston Chronicle about thousands of rape kits sitting untested in the HPD property room.
Posted by Gritsforbreakfast at 7:44 AM

Over the course of the past few years, I have presented at numerous continuing legal education seminars on topics ranging from discrediting the intoxilyzer 5000 to trial tactics in DWI blood draw cases. At most I would speak 2-3 times per year. This year, however, I have been in overdrive on the speaking circuit.

In March I flew to Ohio for the Ohio Association of Criminal Defense Lawyers Annual DUI Seminar. My topics included discrediting hospital blood testing as evidence in DWI cases, building a "house of doubt" in trial and participating on a discussion panel with some of the best DWI lawyers in the country.

April always brings MSE - Mastering Scientific Evidence in DUI Cases - AKA the "mack daddy" of DUI science courses. This year I had the honor of being asked to present on the topic of discovery in DWI blood draw cases. Speaking at MSE is considered a high honor in my profession.

In May David Burrows and TCDLA put on their annual DWI seminar. This year it was held in Arlington. I spoke on blood draw errors and trial tactics.

May also brought an exciting opportunity to address the statewide county judges at their judicial conference in Dallas called the DWI Technology Conference. I was invited to speak, along with a state's expert, on the topic of breath testing. My job was to present on the Intoxilyzer 5000 from a defense perspective. It had been years since I gave a presentation on the errors in breath testing so it was great to revisit a topic that has always been one of my favorites.

In June I flew to San Antonio to give a DWI case law update at the criminal justice section of the State Bar of Texas at their annual meeting. This was the 2nd time I had been asked to speak at the annual meeting and I never pass up a chance to visit San Antonio, my college town.

As soon as I finished in San Antonio, I hopped on a place for Chicago to spend 6 days at Axion Labs learning the ins and outs of gas chromatography. GC is the testing method for blood alcohol concentration. The American Chemical Society and Axion Labs put on training for lab people but 2-3 times per year will offer their 40 hour course specifically for attorneys. I'm proud to now be one of only 53 attorneys nationwide to graduate from their GC course!

In July I flew back to San Antonio to join my good friends, Justin McShane (Pennsylvania) and Josh Lee (Oklahoma), at a seminar they were putting on for the San Antonio Criminal Defense Lawyers Association on defending "no refusal" cases. I discussed discovery in DWI blood draw cases and released a brand new discovery motion that has now been sent out statewide and will hopefully replace my old one as the standard motion in Texas. It is based on a fantastic article Justin wrote. I simply converted it into a usable Texas motion so that all Texas attorneys could benefit from it.

Now on to August. I will be in Houston for the Top Gun DWI seminar (as usual) but this year I'm a speaker. My job is to conduct a mock cross examination of a state's expert in a blood draw case. I consider this the hardest kind of speaking engagement so I'm already working on perfecting my cross examination!

As for the Fall, mabye I'll have a little break after August! In between trips I'm either preparing for trial or in trial so life has been a little crazy in 2011. Did I mention I finished updating The Texas DWI Manual for release later in the Fall? Lots of weekends and late nights spent writing.

It's not easy being the Texas DWI Gal but I wouldn't change a thing.

CMI, the manufacturer of the Intoxilyzer 5000 (used in Texas) and the Intoxilyzer 8000 (used in Florida), is in yet another stand-off over the company's refusal to turn over the source code for review by outside experts. Florida is in year 6 of the battle.

From the HeraldTribune.com:

DUI justice denied

Published: Wednesday, May 11, 2011 at 1:00 a.m.
Last Modified: Tuesday, May 10, 2011 at 6:27 p.m.
( page all of 3 )

"The Intoxilyzer, a device that detects alcohol in drivers, is designed to help the cause of public safety. But the manufacturer's intransigence in a related legal dispute is not helping the public. Instead, it is hurting hundreds of DUI prosecutions and clogging courts.

"The company, CMI Inc., should do the right thing: Resolve the dispute before it further undermines the battle against drunken driving. If CMI refuses, police agencies should start looking for a more cooperative manufacturer."

Those were the first two paragraphs in a June 2009 Herald-Tribune editorial.

Unfortunately, little has changed — except for the passage of nearly two years and the increasing number of cases jeopardized by CMI's refusal to comply with court subpoenas to give DUI defendants information that would allow experts to analyze the Intoxilizer 8000's computer source code and the machine's reliability.

This is unacceptable: State and local law enforcement agencies pay for these devices; as customers, they deserve the manufacturer's cooperation in response to repeated court orders dating back to 2005.

Six years of court orders

Six years ago, Sarasota County judges ordered that CMI's source code be turned over to a designated expert for analysis. Judges in Manatee County subsequently did the same.

Complex legal battles ensued: Last year, the 2nd District Court of Appeal upheld an order to produce the source code for analysis. In January, the Florida Supreme Court declined to hear an appeal from CMI, whose lawyers sought to help the manufacturer avoid compliance with a subpoena.

The Supreme Court decision should have expedited CMI's compliance or prompted the Florida Department of Law Enforcement, which is responsible for approving breath-test machines, to seek another vendor. (The Intoxilizer is the only DUI machine approved for use in Florida.)

Yet, as Todd Ruger's front-page report in yesterday's Herald-Tribune demonstrated, the lack of a solution continues to undermine cases.

Last week, for instance, prosecutors dropped their case against a Manatee County woman arrested for DUI for the 11th time. The woman is in prison for committing other driving-related offenses. But it's telling that the state attorney, according to Ruger, declined to press the charge "rather than allow a judge to issue a written order that could be used to throw out all breath evidence in DUI cases" in Manatee and Sarasota counties.

There are ways for the state attorney to get around the questions raised by defense lawyers and judges, but they involve additional time and money — and should be unnecessary.

A problem in other states

Judges in our region and Florida aren't the only ones who've challenged CMI and its machines. Judges hearing DUI cases in Arizona, Minnesota and other states have directed the manufacturer to reveal the Intoxilyzer's secret coding.

In response to Florida cases, CMI has attempted to dictate the terms under which it might comply with court orders; perhaps if company officials were faced with being held in contempt of the courts, their resistance might diminish.

What's more, the company's contention that its codes are trade secrets are overstated. The court orders provide adequate protections for any proprietary information an analysis might find — consistent with precedent and Florida law.

One possible way to encourage resolution would be to convene a panel of independent experts to review the source code in a secure setting. Florida used that approach, with mixed success, in addressing touch-screen voting problems in the disputed 2006 13th congressional district election.

An exercise such as that could take months. A faster route would be for CMI to simply cooperate with judicial orders.

Secrecy heightens doubts

If company officials want to build confidence in their product, they should recognize that secrecy is the wrong approach. It heightens doubts, undermining the value of the evidence and discouraging further purchases by police agencies.

Wasted court time, stymied DUI cases, rising legal costs — these are the side effects of the CMI standoff, and they are spreading in other jurisdictions and states. Clearly, the public is not being well served by these continued delays after six years.

Kudos to fellow NCDD member Mike Nichols for his tireless fight!

From LansingNoise.com:


DUI blood tests could face scrutiny after judge's ruling: East Lansing attorney works case in Ludington area


Blood tests in drunken-driving cases statewide will face more scrutiny, experts say, after a Mason County judge ruled that the state crime lab's test results "are not reliable."

In a ruling signed Friday, 79th District Court Judge Peter Wadel refused to admit blood-alcohol results in a drunken-driving case. He said the crime lab - which conducts blood and other forensic tests in cases from around the state - does not report an error rate, or margin of error, along with blood-alcohol results.

Police routinely report a single number for blood-alcohol content in drunken-driving cases. But East Lansing attorney Mike Nichols, who is handling the case in Mason County - which includes the city of Ludington along Lake Michigan - said there are no absolutes in science.

"Everyone says a blood test is so accurate. Well, it's not," Nichols said. "That's what this judge has ruled."

Not including a range of possible results, Nichols said, ignores the uncertainties in the collection, handling, analysis and reporting process.

A blood-alcohol level of 0.08 percent is the threshold in Michigan for being charged with drunken driving. But Nichols said when someone's blood-alcohol is determined to be 0.10, for example, it could actually be higher - or lower - than 0.08.

The Mason County case is being watched by attorneys across Michigan and the country.

Washington-based attorney Ted Vosk, who consults with defense attorneys and prosecutors about the importance of calculating error rates, praised Wadel's ruling.

If police and prosecutors don't acknowledge scientific uncertainties, Vosk said, innocent people will be convicted and guilty people will go free.

"And we won't know which are which," he said.

Large impact

Vosk said Washington and Michigan are the only two states in which judges have made rulings challenging blood-alcohol tests.

Wadel's ruling is not binding on any judge outside of the 79th District Court, which includes Mason and Lake counties. But it likely will have impact statewide, Thomas M. Cooley Law School professor Ron Bretz said.

From WoodTV.com:

2011 Speaking Engagements

Legal Seminars:

Defending DWI's with Hospital Tested Blood

•March – Ohio Association of Criminal Defense Lawyers Annual Advanced OVI (DWI) Seminar


Discovery in DWI Blood Draw Cases

•April - TCDLA's Mastering Scientific Evidence in DUI/DWI Cases


DWI Blood Cases: Discovery, Science, & Strategy

•May - Annual DWI Defense Project Seminar
•June - State Bar of Texas Annual Meeting


The Intoxilyzer 5000 From a Defense Perspective

•May - DWI Technology Conference (Texas Center for the Judiciary)

2 bills have been introduced to do away with the draconian DPS surcharge. I'm watching both and will report on their progress.

I'm heading to Ohio to speak to the Ohio Association of Criminal Defense Lawyers at their annual DWI (OVI) seminar. I'll be teaching a session on defending DWI accident cases where a blood sample was tested in the hospital lab.