John T. Floyd Law Firm
Board Certified Houston Criminal Lawyer

“Serious Criminal Defense Throughout Texas”

Board Certified Criminal Law Specialist
Experienced Criminal Trial Lawyer
Federal And State Criminal Defense

Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com

Board Certified-Criminal Law-Texas Board of Legal Specialization
Top Lawyers: Criminal Defense - 2008, 2009, 2010 HTexas

Comments on Criminal Issues

July 30, 2011

IT’S TIME TO OVERHAUL “NO REFUSAL” DWI WEEKENDS

HPD, Harris County District Attorney’s Office Present Flawed Evidence in DWI Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have thus far this year posted three articles reflecting our disdain, and distrust, of the Houston Police Department’s crime lab and the department’s “no refusal” DWI weekends (here, here, and here). The Houston Chronicle carried a recent article that not only vindicates our criticisms but raised red flags about how the crime lab operates its six “mobile breath-testing vans” used in its “no refusal” DWI weekend campaigns. The newspaper reported that a crime lab supervisor and two other scientists quit their jobs because they did not “trust the integrity” of the vans’ breath-testing results.

The HPD crime lab has a long, sordid history of knowingly producing flawed forensic evidence and maintaining other flawed evidence-gathering procedures. No matter how much political criticism or media scrutiny that is directed toward the crime lab, it continues to produce evidence that cannot be trusted. This was made clear by crime lab supervisor Amanda Culbertson who told the Chronicle that she and other crime lab personnel “documented” the problems with HPD’s breath-testing vans before they quit out of fear of being fired in “retaliation” for their overseeing of the police officers and “breath testing technicians” who determined whether a DWI offense had occurred.

“We could no longer choose between a paycheck and our integrity,” the Chronicle quoted Culbertson who testified at a pretrial hearing in Harris County Judge Pam Derbyshire’s court.

The problem with the DWI vans lies in their air conditioning systems needed to “regulate the temperature” of the breath testing machines used to measure blood alcohol levels. Culbertson told Judge Derbyshire that there was “an electrical glitch” which caused the machines to “reset” each time the van’s air conditioner was turned on. HPD was aware of and never fixed the problem. Culbertson and others were concerned about the “accuracy of the test results” produced in this unstable environment.

“In theory it’s a great idea, but it depends on who is in charge of the environmental conditions,” Culbertson told the court.

This latest flap involving the HPD crime lab surfaced after defense lawyers in a DWI case moved to have breath test evidence suppressed. The attorneys had to subpoena Culbertson to the suppression hearing after HPD officials had already testified, under oath, that there were “no problems” with the breath testing equipment. Culbertson’s concern focused on most DWI cases from 2009 involving the BAT Vans, which could likely impact “dozens of DWI cases” if not hundreds.

Prosecutors scrambled to do “damage control.” They sought, and secured, a continuance from Judge Derbyshire, telling the court the unlikely story that they had never been informed about the “alleged problems.” Prosecutors did not offer any further public comment following Culbertson’s serious disclosures about the crime lab’s problems.

Harris County certainly has a serious DWI problem: it allegedly leads the nation in DWI-related fatalities (with 53% of its traffic fatalities believed to be caused by drunk driving). This past June some twenty-three agencies joined together to show that “drunk driving will no longer be tolerated in Harris County,” according to news reports. We assume this effort included a willingness to use possibly faulty evidence to cure the problem in the typical ends justify the means mentality of law enforcement and prosecution.

Shoddy evidence gathering is not the only problem associated with law enforcement efforts to curb DWI. Last fall news media outlets reported that Texas leads the nation in DWI fatalities, primarily because the Texas Alcoholic Beverage Commission (“TABC”) has not enforced liquor laws and regulations—according to a report aired by Houston’s CBS-affiliate KHOU-TV. In a follow-up report, KHOU reported that the State of Texas is the only state in the nation with a “Safe Harbor” law, enacted in 1987, which allows “liquor license owners” to take a “few simple steps” that immune them liability if they serve liquor to intoxicated individuals or minors. All that is required is for bartenders and waitresses to go through a state-approved training program, which makes them TABC-certified, and the bar owners are protected from civil lawsuits and sanctions by the TABC. The training program can be taken online by anyone who can then designate the person they want to be TABC-certified as KHOU reporter Jeremy Rogalski did with his four-year-old son, Nicholas.

In a 2005 report titled “A Guide to Sentencing DWI Offenders” (2nd Edition, 2005), the National Highway Transportation and Safety Administration (NHTSA), in conjunction with the National Institute of Alcohol Abuse & Alcoholism (NIAA), found that during the six years prior to the release of the report some 17,000 people were killed in alcohol-related traffic accidents while another 300,000 were injured. One-third of all DWI offenders arrested, convicted, or sentenced are “repeat offenders.” Each year some 1.4 to 1.5 million DWI offenders are arrested, meaning that between 400,000 and 500,000 of them are repeat offenders.

The NHTSA study found that judges across the nation are at a loss on how to effectively deal with DWI offenders, with 80 percent, saying that if they had “summaries of scientific research of DWI sanctions,” it would be a great benefit in their sentencing decisions. The sentencing difficulty lies in the fact that DWI offenders are representative of the American population with between 17 and 27 percent of the driving population saying they have driven “shortly after drinking.” That percentage means that somewhere between 28 to 45 million Americans, mostly law-abiding citizens, drink then drive every year—some with deadly consequences to them and others.

Citing a 1999 study titled “DWI Offenders Under Correctional Supervision” by U.S. Department of Justice’s Bureau of Justice Statistics’ researcher, Laura M. Maruschak, NHTSA reported that “DWI offenders are older (by approximately five years), more educated than other criminals, and more likely to be white males.” Maruschak also found the following “characteristics” of DWI offenders:

34 percent of the offenders in jail and 8 percent of the offenders on probation reported having been convicted of three or more DWI offenses in their lifetime;
Approximately one in three DWI offenders on probation and two out of five in jail reported drink alcohol daily, whereas 44 percent of jailed DWI offenders and nearly half of DWI offenders on probation report drinking at least once a week;
Over 37 percent of DWI offenders on probation and almost half of jailed DWI offenders showed signs of alcohol dependence, compared to 18 percent and 25 percent of other offenders.

Drawing on a number of other reports, including Maruschak’s, NHTSA reported the following characteristics of “repeat DWI offenders”:

White, male, under 40, single
High school or less education, non-white collar employment
A blood alcohol concentration (BAC) of .18 or greater at arrest
On average, two or three prior DWI offenses, several prior “other traffic” citations
More prior criminal offenses than first offenders
Generally drink beer, in bars and at home
Often alcohol-dependent and have personality and psychological problems, including: verbal hostility, assault-prone, sensation seeking, impulse expression, personal problems, and low levels of responsible values and compatibility with parents

The NHTSA report concluded that reductions in DWI recidivism could be achieved through “certain, consistent, and coordinated sentencing.” Keeping the driver “away from the vehicle” is one of the more effective sentencing components. In the final analysis of sentencing, it is clear that:

The certainty of a penalty has greater impact than its severity
Sentencing for DWI should be consistent from one court to another regardless of the jurisdiction, yet balanced with the need for matching offenders to the most appropriate sanctions and extent of treatment
Communication among the courts, evaluators, probation officers, and treatment providers should be coordinated to ensure compliance with the sentence
Acting swiftly to correct noncompliance
Evaluating offenders for alcohol-related problems and recidivism risks
Selecting appropriate sanctions and remedies for each offender
Including provisions for appropriate alcohol abuse or alcohol-dependent treatment in the sentencing order for offenders who require treatment
Imposing vehicle sanctions where appropriate, that make it difficult for offenders to drink and drive during that period (e.g., vehicle immobilization, impoundment, and alcohol ignition interlock devices)

That Texas in general, and Harris County in particular, have significant DWI problems is no longer in dispute if you believe the statistics given. Law enforcement, prosecutors, judges and criminal defense attorneys struggle on a daily basis to find the appropriate method for dealing with this problem which has proven to be a serious human and economic drain on our criminal justice system. While Harris County law enforcement and prosecutorial authorities have taken a hardline approach in dealing with DWI offenses over the past several years, this should not be a license for these officials to either knowingly use flawed evidence, “scientific” or otherwise, or refuse to correct an evidence-gathering process that produces flawed information.

DWI, indeed, is a serious criminal offense in the State of Texas. There are serious criminal, social, and economic consequences for defendants and it can be life changing for both defendants and the victims of DWI offenses. But it is also borderline criminal for officials at HPD’s crime lab and the District Attorney’s office to present flawed evidence in court to appease the prosecutorial demand of political groups and zealots in order to try and make DWI cases against citizens.

next...»