Some DWI Tests in League City may have been "Junk Science"

Problems with breathalyzer tests by the League City Police Department may have compromised numerous DWI arrests by rendering the breath test evidence of questionable validity

In our modern era, we are often confronted with technology that we use, but do not fully understand. Most people have and use cellphones, but few understand the actual workings of how these devices function. This situation is sometimes referred as "black box" syndrome. We know something goes in the box and something else comes out, but how it does what it does is somewhat mystifying.

This means we have to trust those who setup, configure, and operate many of these devices. Think about your phone, computer and dozens of other devices that you may rely on during the course of the day.

If you visit a doctor or go to a hospital, you will see dozens of medical devices that will have numbers and outputs, and you have to trust the output they generate is correct, as your life may depend on it.

Beware the black box

Another type of black box you may encounter is if you are stopped by law enforcement on suspicion of a DWI. As part of the arrest, you are likely to be tested by a breath-testing device or breathalyzer. These devices use a breath sample to calculate an approximation of the blood alcohol in the test subjects' blood.

These machines are like any other machine. They demand maintenance and must be regularly calibrated to ensure anything approaching accuracy. The operators must be properly trained and they must perform the tests correctly, or the measurements produced by the device will be incorrect and invalid.

Crime labs have significant problems

This summer, an employee of the League City Police Department was fired. She was terminated after an internal investigation that found her work suffered from "performance issues." In one report, the quality of her work was found to be so substandard that it was described as a "ticking time bomb." Apparently, that "bomb" has now detonated, and law enforcement agencies in the area are attempting to determine how much damage has been done.

Crime labs and other "back office" work in police departments are often shared amongst agencies and failures on one position can have significant ramifications for numerous law enforcement agencies that rely on that work. League City provided breath alcohol work for nine agencies in four counties, so a large number of cases may have been impacted by the shoddy work of this one employee.

Texas has seen a fair number of these types of issues. The Houston Police Department crime lab was rocked by numerous problems in the last 15 years and hundreds of cases were affected by the problems. Crime labs across the country have had similar difficulties, with incompetent employees or those who performed their work in a slipshod manner.

Is that test really a test?

The dirty little secret of forensic science is that much of it is not science at all. Until very recently, much of the forensic "science" that was used by many police departments was a standardless mess of procedures that often included "tests" that had no scientific validity and were little more than often untrained technicians' "gut feelings."

Even the FBI lab has suffered these issues

The FBI, whose massive budget dwarfs that of any local police department, has had junk science problems. Their crime lab, often considered the best in the nation, has admitted that their  microscopic hair comparison unit overstated matches that supported prosecutions 95 percent of the time. Hair follicle and bite-mark analysis have long been permitted by courts, but are little more than junk science with no rigorous testing methods and training methods for technicians.

This points to the larger problem with the so-called forensic science; while courts are supposed to be "gatekeepers" and ensure only evidence that has some scientific basis is admitted as evidence, they allow far too much material that is of questionable character.

As the incident involving the League City technician shows, you cannot trust the police or courts to check the validity of many of these tests. While DWI breath tests have been long accepted, that does not mean they are always done well or that they have produced valid results.

You need an attorney like Dan Krieger, who has handled cases involving these issues, to review the purported evidence and develop an aggressive defense that can undercut the prosecution when they have difficulty showing the validity of a breath test or any other test results in the case.