Monthly Archives: October 2011

Houston D.A. Subpoenaed by Defense in Breathalyzer Cover-Up

My past two posts have dealt with the Houston grand jury investigating cover-ups of breathalyzer problems by the District Attorney’s office.  In related developments in this fascinating saga, a defense attorney representing a client charged with drunk driving has subpoenaed the District Attorney for the trial:

Harris County District Attorney Called to Testify in DWI Trial  

Houston, TX.  Oct. 28 – A day after the revelation that her office is the target of a grand jury investigation, District Attorney Pat Lykos was called to testify Thursday in an ongoing DWI trial because she made public comments regarding the accuracy of results from the Houston Police Department’s troubled mobile breath-testing vehicles.

“The reliability of the BAT [breath alcohol testing] vans has come into serious question by the chief prosecutor of Harris County herself,” declared Jackie Carpenter, a defense attorney in the DWI trial. “If they’re so unreliable, then why are you prosecuting someone with evidence you deem unreliable?”

Reversing an earlier decision to compel Lykos to testify, County Court at Law judge John Clinton ruled Thursday that the top prosecutor’s opinions on the breath-alcohol testing vehicles – known as BAT vans – are relevant in the DWI trial.

An assistant district attorney, one of more than 240 under Lykos’ authority, is handling the misdemeanor case. If Lykos appears, she could be cross-examined by one of her own prosecutors.

The testimony could affect dozens of past and future DWI cases that relied on evidence handled by the testing equipment in the vans.

Even more serious is the possibility that Lykos and other prosecutors had doubts about the tests’ accuracy while prosecuting past DWI cases but did not alert defense attorneys…

Fascinating stuff.  The public is finally getting a look behind the so-called “state of the art” magical machines used to convict citizens.  The readings from these machines have been deemed so reliable that, by law, they are deemed sufficient “proof beyond a reasonable doubt” to convict.  As I’ve been saying for years, however, these machines are little more than “pseudo-science”.  See, for example, How Breathalyzers Work (and Why They Don’t)Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.

Houston Grand Jury Subpoenas DAs in Breathalyzer Cover-Up

Following up on yesterday’s post (Grand Jury Investigates Breath Test Accuracy – Throws D.A. Out), here are the latest fascinating developments in a Houston grand jury’s investigation into cover-ups by police and prosecutors of defective breath-alcohol machines.  

Keep in mind what we’re talking about here: this is the District Attorney’s office –charged with finding truth and achieving justice — trying to ensure convictions of possibly innocent citizens by hiding that truth from the public.  And this is a grand jury – normally used as a tool by the D.A. — turning on their masters and throwing prosecutors out of the hearings.

Four Harris County Assistant DAs Subpoenaed in BAT Van Investigation

Houston, Oct. 25
- There are new developments in our investigation into how the Houston Police Department and the Harris County District Attorney’s Office handled complaints about unreliable DWI testing. It’s a story we’ve been following for months and now more evidence that a secret grand jury is also trying to get to the bottom of just who knew what and when.

Four Assistant District Attorneys Tuesday were ordered to testify to the grand jury and, to make it worse for the DA, a special independent prosecutor is about to be named.

The ADAs all tried DWI cases and likely know if supervisors downplayed faulty DWI tests. The grand jury is still meeting in secret, but it’s becoming clear they are zeroing in on a possible cover-up within HPD or the DA’s Office.

What is happening inside a Harris Co. Grand Jury room this month cuts right at the heart of how the DA prosecutes cases.

“This could be catastrophic. Anyone who’s been arrested involving these mobile vans could have their cases overturned,” said KTRK Legal Analyst Joel Androphy.

With four ADAs and a current judge called to testify, it’s clear the grand jurors want to know what prosecutors knew about potentially bad DWI evidence, when they knew it and what their bosses told them to do about it.

“It’s not OK to cover up unreliable evidence; period,” said Tyler Flood, a DWI defense attorney.

On Monday, Harris Co. District Attorney Patricia Lykos told Eyewitness News she never knew about the problems with the BAT vans until they came out in open court in July.

“The Houston Police Department Crime Lab has never notified us of any questions or any issues with respect to the BAT vans, and that includes as of today,” Lykos said.

And that’s true if you listen very carefully. Officers from the crime lab never came to her office. But other police officers spoke up months earlier. She didn’t tell us about that.

In court testimony, one police officer testified he knew of issues a year before and told prosecutors about them more than once without questioning the admissibility of the evidence.

The lawyer for the whistle blower in the case says the DA isn’t telling the whole story.

“She should’ve kept her mouth shut,” said attorney Chip Lewis.

But Lewis says the DA isn’t the only one who should be concerned; he’s convinced this grand jury will want answers from HPD as well.

“It’s clear to me that HPD broke the law. Whether it’s a civil law by retaliating on Amanda Culbertson or the criminal law of official oppression, I will let the grand jury make that determination,” Lewis said.

With the addition of a special independent prosecutor, that grand jury investigation just got a lot more serious.

“You start with people who were the messengers, then work up to the supervisors and work your way up to determine if there was a cover-up,” Androphy said.

Amidst all the claims of cover-up, none of it’s been proven and the DA continues to insist they did nothing wrong.

The special prosecutor has not been named, but once that person is on the job they will help the grand jury figure out if a crime has been committed.

Here’s a look at a timeline in the BAT van investigation:

     Our 13 Undercover investigations exposed maintenance problems with the BAT vans back in March.

     Emails we uncovered about the Breathalyzer accuracy prompted attorneys to challenge DWI cases connected to the vans.A hearing was held in July where

     Culbertson openly testified about the lack of response to the BAT van issues.

     In October, Harris County commissioners terminated a contract with Culbertson’s current employer to provide DWI testing in the county.

     Last Friday, Eyewitness News first reported that the grand jury appeared to be investigating how the DA’s Office and HPD handled reports of the BAT van                  problems.

     Today, we confirmed four prosecutors have been subpoenaed in that investigation.

And yesterday:

Prosecutors Named in BAT Van Case

Houston, Oct. 26 – State District Judge Susan Brown on Wednesday named attorneys Stephen C. St. Martin and James Mount as temporary prosecutors to assist a grand jury apparently investigating the Houston Police Department’s troubled mobile alcohol testing program.

The order appointing St. Martin and Mount, both former assistant district attorneys now in private practice, states that grand jurors are investigating “possible criminal conduct by members of the Harris County district attorney’s office.”

“After considering the grand jury’s request and the applicable law, the court finds the Harris County District Attorney and her office are disqualified from participating in the grand jury’s investigation,” Brown wrote.

Brown did not immediately rule on the grand jury’s request that its term, scheduled to end in late November, be extended.

The grand jury gained attention last week when it excluded prosecutors from listening to witnesses testifying in secret proceedings. On Tuesday the grand jury heard testimony from prosecutors under subpoena, providing further evidence that the panel is examining the role the DA’s office has played in cases involving breath alcohol testing vehicles known as BAT vans.


Stay tuned…. 

Grand Jury Investigates Breath Test Accuracy – Throws D.A. Out

Hmmm….Maybe the citizens of this country are beginning to wake up to the fact that those infallible breath machines aren’t so infallible.  And prosecutors don’t like it.

Controversy in BAT Van Investigation

Houston, TX.  Oct. 21 – There are new questions about just what a grand jury is investigating after prosecutors were thrown out of the grand jury room.

In an incredibly rare move this week, the foreperson of a Harris County Grand Jury asked a bailiff to remove prosecutors so jurors could hear from a witness on their own about potentially faulty DWI tests.

13 Undercover first raised questions about the accuracy of the Houston Police Department’s so-called BAT [Breath Alcohol Test] vans, but now it’s the investigation into how those problems were handled that’s causing controversy.

For months, some of the people closest to HPD’s breath testing vans have told you and us that the vans are unreliable — meaning the roadside tests they do on alleged drunk drivers may not be accurate.

Now the controversy has spilled over into a grand jury investigation, and it’s become so heated that a prosecutor working for Harris Co. District Attorney Pat Lykos was thrown out of the grand jury room earlier this week under the threat of arrest.

Amanda Culbertson worked for HPD for four and a half years as one of the supervisors overseeing mobile breathalyzer machines known as the BAT vans. She quit when she says HPD’s poor maintenance was leading to unreliable test results.

But her real trouble started when she spoke out about it. After Culbertson told a judge about her concerns, the DA questioned her credibility and pushed the county to cancel a contract with her new employer, in essence firing her.

Culbertson told her lawyer Chip Lewis that the DA is targeting her.

“She has not only thought it herself, but been told by people very close to the fire that the District Attorney’s Office is after you,” said Lewis.

This week a Harris County Grand Jury wanted to hear from Culbertson as well as Brent Mayr, a former prosecutor who previously alleged the DA is bullying Culbertson to force her silence.

“Clearly retaliation for these individuals expressing opinions that the DA’s office didn’t like,” Mayr said on October 4.

When Mayr walked in to testify before the grand jury on Tuesday, the foreperson told prosecutors to get out. They wanted to hear from Mayr and Culbertson without a DA in the room.

“They obviously believe that the DA’s Office played a role in this case and that they can’t be independent,” said KTRK Legal Analyst Joel Androphy.

While it is rare — and legal — the DA’s Office threw a fit. Court records show top assistants to the elected DA refused to leave the room until a bailiff threatened to arrest them. The DA tried to force a judge to let them back in, but it was denied. An appeals court said the same thing.

“The grand jury is a function of independent people from the community. It’s not supposed to be the vote of the DA’s office,” said . “This is rare and it would happen one out of a hundred times that a grand jury would have the courage enough to basically say to the DA’s Office get out of here or you’re going to get arrested.”

We tried to ask the DA about it Friday, but they refused repeated interview requests. We’d love to ask what they knew about the BAT van problems, when, and what they did about it. It may be the same thing the grand jury is looking at on its own; and it may be the reason the DA was so angry about being thrown out of a supposed independent investigation.

“It’s clear to me that the grand jury has questions about how this was handled from a law enforcement standpoint. Now, I don’t know if that’s specifically confined to how HPD treated her or if they have some beef with what the District Attorney’s Office did as well,” said Lewis.

Androphy told us in cases like this it would be best for the DA to ask for an independent prosecutor, but the DA’s Office said they haven’t. It would’ve been one of the questions we asked if anyone at the DA’s Office would’ve been willing to join us for an interview, but no one was.

13 Undercover and Wayne Dolcefino exposed the potential maintenance problems with the BAT vans back in March. We found documents detailing electrical problems that kept some of the very expensive mobile breath vans from ever being used. We showed you emails showing some cops were worried it might affect criminal cases. HPD didn’t tell the DA’s Office.

Funny, when I was a Los Angeles Deputy D.A., we understood our duties as they are set forth in the Canons of Ethics:  the prosecutor’s job is not to win, but to seek truth and justice.  I guess times change….

(Thanks to Art Weiner.)

Drunk Driving….Parked on a Private Driveway?

The crime is driving a vehicle under the influence of alcohol.  In other words, the corpus delecti of the crime is: (1) driving (2) a vehicle (3) under the influence of alcohol.  In most states, there is a 4th element: the driving must be on a public roadway.  Simple, right?  

Yes, but to be charitable, cops seem to have a problem with the concept of common sense.  For the "driving" element, for example, see Convicted of Drunk Driving – Without Driving, Alcohol on Breath + No Driving = DUI, State Supreme Court: DUI Doesn’t Require Driving and How to "Drive" Under the Influence While Sleeping.  

And for a few examples of what constitutes a "vehicle", see DUI on a Horse?, DUI on a Foot-High Toy BikeDUI – While Walking a Bicycle, DUI in a Wheelchair, DUI on a Scooter and News From the Front (driving a Zamboni on an empty ice rink).

This is not a joke, folks, these are just a few of the "drunk driving" convictions in MADD’s "War on Alcohol"….oops, I mean "War on Drunk Driving".  And in the news a few days ago:

Nebraska Supreme Court: No DUI in a Private Driveway

Omaha, NE.  Oct. 18
– Jeffrey McCave was sentenced in a county court to thirty days in jail, two years of probation and a $1000 fine for listening to music in an undriven car parked on his father’s driveway while drunk. The Nebraska Supreme Court on Friday used the case to clarify that the charge of driving under the influence of alcohol (DUI) does not apply in a personal driveway.

When McCave did not listen to his father, John McCave, who told him to go away, the police were called. Officers arriving at the scene noticed McCave was drunk in a car and asked him to take a breath test. McCave refused, saying he had not driven anything. Officers proceeded to pile on charges.

"I guess I just inferred with the beer being in the car that him and the beer got there by the vehicle," Officer Benjamin Faz testified.

McCave was hit with DUI, refusing a breath test, possessing an open container of alcohol in a vehicle, trespassing and resisting arrest. The officers did not bother asking Susan McCave whether she had been the one to invite her stepson to the house that night.

Prosecutors argued that the DUI charge applies to a residential driveway because McCave had physical control of the vehicle and that he might have been about to leave. They also insisted McCave’s car was on public property because it partially overhung a sidewalk. The high court explained that DUI statues do not apply to a person on private property not open to public access…

The court blasted the prosecutor’s argument that McCave’s car was subject to the DUI statute because it was parked at least in part on public property.

"Nor do we think that the driveway’s characterization as private property without public access changed just because McCave’s vehicle overhung the sidewalk," Connolly wrote. "We do not believe the legislature intended to make a citizen drinking a beer while cleaning out his vehicle parked in his driveway guilty of a crime because the vehicle is overhanging the sidewalk."

The court also discarded the prosecution’s insistence that McCave was guilty of DUI simply because the police officer claimed the man had stated he was "leaving."

"Obviously, if McCave had committed an offense in front of the officers, they would have had grounds for an arrest," Connolly wrote. "But his statement that he was leaving, even if his hand was on the key in the ignition, showed only that he had considered driving but changed his mind."

The high court went on to blast the sloppy police work that led to McCave’s conviction.

"No witness reported that McCave was driving a vehicle at any time, and the officers did not pose this critical question to McCave or any witness," Connolly wrote. "Before officers invoke the power of a warrantless arrest, the Fourth Amendment requires them to investigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least when exigent circumstances do not exist. This is particularly true when the circumstances the officers encounter are consistent with lawful conduct. As previously discussed, it is not unlawful for a person to be intoxicated in a vehicle on private property not open to public access."

So let’s see….The guy was not driving.  He was on private property.  In fact, he was doing nothing wrong at all.  But he’s illegally arrested and charged with five criminal  offenses: drunk driving, refusing a breath test, possessing an open container (on private property), trespassing (!) and resisting arrest (for arguing that he hadn’t driven?).  I guess that’ll teach him respect for the law! 

Welcome to the "War on Drunk Driving".

(Thanks to Jerry Scott.)

Proof Beyond a Reasonable Doubt?

As I’ve mentioned often in the past, the evidence in a drunk driving case depends upon the breathalyzer.  In most states, the suspect faces two separate criminal charges: (1) DUI or DWI (Driving Under the Influence or Driving While Intoxicated), and (2) driving with a blood-alcohol level of .08% or higher.  The first case relies heavily upon the machine; with the second charge, the evidence consists entirely of the breath test results.  In other words, the reading of the breathalyzer must be so accurate and reliable that by itself it must constitute proof beyond a reasonable doubt.

Does it?

Not even close, although juries continue to be infatuated by the seemingly scientific nature of these machines.  As a few of my past posts have shown, however, it is little more than pseudo-science.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol, Breathalyzers and Radio Frequency Interference and Breathalyzers: "State of the Art"?.  

Just the ravings of a DUI defense attorney?  A few more posts on massive failures across the country:  Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All MachinesInaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia, 400 Wrongly Convicted in Washington: Faulty Breathalyzers and Another Widespread Failure of Breathalyzers

Want a more recent example?

Sarasota State Attorney Sending Out Notices to People Who Took Breath Test on Faulty DUI Machines

Venice, FL.  Oct. 12
 – The majority of the alcohol breath testing machines used to measure a person’s blood alcohol content in Sarasota have been out of calibration for the past two and half years. One judge in Venice has already said he would not accept the results from one breathalyzer in that city. Now, there are more problems.

The attorney who discovered the problem in Venice is sort of a research guru. When he discovered the problems with Sarasota’s Intoxilyzer 8000, he started doing research on the other machines using the state’s own testing results. He was astounded to see the results, and the fact that prosecutors around the state continued to take people to court with questionable evidence.

"Certainly by now the State Attorney is on notice there is a problem here with every breath test in the state of Florida," says attorney Robert Harrison.

Harrison’s research showed 40 to 50 percent of the machines were out of calibration.

"Sarasota is much worse than 40 percent, but being 40 percent or 50 percent wrong is totally unacceptable," he says.

(His client) knows firsthand. He submitted to a breath test on a faulty Intoxilyzer 8000 and couldn’t provide an adequate sample. His case was thrown out of court, but he lost his license for a year and had his life turned upside.

"Somebody is going to have to straighten this out, because it is really not fair to people. I’ve been told there are only two machines used in the court system, the breathalyzer and the electric chair, and neither one will prove you innocent," says (the client).

The Florida Department of Law Enforcement, which is in charge of the DUI program, insists there is nothing wrong with the Intoxilyzer 8000 even though internal reports show problems and judges have thrown the results out of court.

"I’ve never seen them say they did anything wrong. They just say the court didn’t understand what was happening," says (the client).

Robert Harrison is convinced many state attorneys are willing to bend the rules because they are DUI – "Deciding Under the Influence" – of one of the most powerful lobby groups in the state: Mothers Against Drunk Driving.

The Sarasota State Attorney’s Office is planning to send out what’s called a Brady Notice to people who took the test on the faulty machines. It lets them know there may be evidence that may help prove they are innocent.

This followed a TV news story the preceding day:

Charges That FLDE Covered Up Faulty DUI Machines

Venice, FL.  Oct 11 – Thousands of people in Florida convicted of DUI may not have been drunk at all. They very well may have been under the allowable blood alcohol limit. The problem may have been law enforcement not calibrating the breathalyzer called the Intoxilyzer 8000.

Now, the 10 News Investigators have uncovered documents and emails that prove the state knew there were problems and didn’t do anything to correct it for more than two and half years.

Those notes prompted an email from the head of the breath testing program, Laura Barfield, telling inspectors not to write down flow sensor problems in their field notes.

"I agree that drunk driving is wrong. We need to get drunk drivers off the road, but we should not be convicting people of drunk driving with evidence that we know is not reliable," says former prosecutor turned defense attorney Robert Harrison…

The 10 News Investigators obtained letters where a Sarasota deputy noticed there was a problem recording breath samples and breath flow levels as far back as 2007. He wrote in his notes that he even alerted an inspector who agreed there was a problem…

Robert Harrison discovered that the Intoxilyzer 8000 in Venice had a part replaced in 2008 and wasn’t calibrated and was giving police breath tests that were off the charts.

"They were reporting breath levels that were not humanly possible. The net result is the state has acknowledged that for two and half years this breath machine was giving unreliable breath tests," says Harrison.

But it wasn’t just in Sarasota where it appeared the fox was guarding the henhouse. Harrison started going through the records of the intoxilyzer and he was shocked to find the lack of candor by the state, which was aware there was a problem with the machine, for almost three years.

"As we found, almost half of every Intoxilyzer 8000 used in the state of Florida is not properly calibrated… 

Proof beyond a reasonable doubt?

(Thanks to Matthew S. Kensky of Fairfax, Virginia.)