Crime Lab Employees Allege Problems with Breath-Testing Machines Used in DWI Cases

A federal court of appeals recently ruled that part of a lawsuit filed by two former Houston Police Department (HPD) crime lab employees may continue in trial court. The plaintiffs in Culbertson v. Lykos allege that they faced retaliation by multiple officials after they exposed problems with the HPD’s Breath Alcohol Testing (BAT) vans, vehicles used as mobile sites for breath testing of DWI suspects. The allegations led to an investigation of HPD and the Harris County District Attorney (DA), and a review of multiple DWI cases. Breath testing devices require careful calibration and regular maintenance, and the misuse of a device ought to bring an end to a DWI prosecution. The matter is somewhat reminiscent of our efforts to establish guidelines for the use of Alcotest devices by New Jersey law enforcement, which resulted in the New Jersey Supreme Court’s ruling in State v. Chun.

Houston, Texas first approved funds for six BAT vans in late 2007 for use “as mobile Intoxilyzer units for the processing of DWI suspects.” The vans reportedly entered into service in 2010. DWI defense advocates shortly began raising concerns about the accuracy and reliability of mobile breath-testing devices.

The plaintiffs in Culberson worked as a criminal specialist and a criminalist in HPD’s crime lab. They both resigned in 2011, partly due to “dissatisfaction with the BAT vans.” One plaintiff, the criminal specialist, was subpoenaed by the DA to testify at a DWI trial in May 2011. She reportedly testified that she inspected the BAT vans and found them to be in working order, but she would not testify that they were working properly at the time the defendant was tested. The jury returned an acquittal.

In July 2011, a DWI defendant subpoenaed this plaintiff to testify in a suppression hearing. She testified that she and the other plaintiff resigned from HPD in large part “because they were not being permitted to maintain the reliability of the equipment in the vans.” The instruments were subject to overheating and other electrical problems, she testified, which could affect the sample used as a control when calibrating the breath-testing devices. Improper calibration, of course, leads to inaccurate results.

A grand jury investigation of the matter began in rather dramatic fashion in October 2011, when a judge ordered several assistant DAs to leave the grand jury chambers immediately prior to taking testimony from a DWI defense attorney. The DA filed an unsuccessful emergency motion to stay the grand jury proceedings.

The investigation’s findings suggested that HPD did not communicate problems with the BAT vans to the DA’s office and also that the DA’s office did not ask about problems. In November 2011, a judge dismissed pending DWI charges based on the BAT van investigation. The DA herself was called to testify before the grand jury in January 2012.

The plaintiff claims that, after her July 2011 testimony, the DA’s office investigated her for possible perjury charges, and the county terminated its contract with her new employer. The lawsuit alleged that these actions were retaliation for her testimony against the BAT vans. A federal district judge dismissed the suit in September 2013, but the Fifth Circuit Court of Appeals reversed the dismissal of some claims, including unlawful retaliation.

Evan M. Levow, a New Jersey DWI attorney, fights for the rights of people charged with alleged DWI in New Jersey courts. We have dedicated 100% of our practice at Levow DWI Law, P.C. to DWI defense, and we are available 24/7 to help you. To schedule a free and confidential consultation with an experienced and skilled advocate, contact us today online or at (877) 975-3399.

More Blog Posts:

New Jersey Courts Hold that Chun’s Twenty-Minute Waiting Period in DWI Cases May Not Be Used for Delay, New Jersey DWI Attorney Blog, July 28, 2015

New Jersey Appellate Court Applies Alcotest Rules Established in State v. Chun, New Jersey DWI Attorney Blog, June 17, 2015

DWI Appeal Claims Faulty Alcotest Machine Invalidates Conviction, New Jersey DWI Attorney Blog, April 13, 2015

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