[Update: I got a call this morning from Jim Leitner of the DA’s Office. He said that in his interview with Amanda Culberson, recorded by both sides, she said that the power-supply problems would cause the machines not to work, but would not, as far as she knew, cause false results. Meanwhile, a lawyer with intimate knowledge of the BAT vans wrote: “What Oliver and DPS doesn’t have an answer for — and what I think is truly the biggest issue affecting test accuracy — are interferent problems the BAT vans were producing on a large scale.” All of this would downgrade “we’ve addressed all of Culberson’s concerns” from a lie to a misleading truth.]
What Lykos leaves out of her timeline:
1 March 2011 / 2 March 2011: KTRK-13 reporter Wayne Dolcefino does a two-part story on BAT vans, which cost the city $600,000 rather than the $250,000 approved in November 2007, which have air-conditioning and electrical problems that can affect the usefulness of the breath-test machines, and which spend much of their time sitting unused—one van didn’t “process” a single driver in ten months.
4 October 2011: Amanda Culberson’s new employer, Lone Star College, loses its contract with Harris County, apparently at Pat Lykos’s behest. Lawyers suspect retaliation against Culberson.
18 October 2011: The grand jury for the 185th District Court kicks prosecutors Carl Hobbs, Steve Morris, and John Barnhill out of the grand jury room and questions a witness, criminal-defense lawyer (and former head of the Harris County DA’s vehicular-crimes section) Brent Mayr with no prosecutors present (see State’s Petition for Mandamus).
24 October 2011: In an interview with Ted Oberg, Pat Lykos says that she’s done trusting HPD to tell her the truth about DWI testing.
25 October 2011: The grand jury asks for a special prosecutor, and for an extension of its term.
26 October 2011: Judge Susan Brown appoints Stephen St. Martin and Jim Mount as special prosecutors.
27 October 2011: The grand jury subpoenas multiple current and former ADAs.
27 October 2011: Judge Clinton, County Criminal Court at Law Number Four, rules that the defense can introduce a recording of Lykos’s interview in a DWI case. Judge Susan Brown extends the grand jury’s term until February 2012.
Yeah, well I guess that stuff isn’t important because it won’t help re-elect Pat Lykos (“I felt so strongly about the reliability of the BAT vans that I got the whistleblower fired!”?), and that’s what Lykos’s website is all about. So why is the same incomplete record on the DA’s government website? Same reason? It doesn’t make the boss look good?
But wait, there’s more.
Lykos’s timeline says:
The Texas Department of Public Safety conducted an Ambient Temperature Study on the HPD BAT van and intoxilyzer instruments that addressed the technician’s concerns. Scientists concluded that the HPD BAT van instruments correctly analyzed breath alcohol concentrations (click link below for report from DPS outlining results).
That, the single most-important claim on Lykos’s timeline, is a lie.
Here’s the report. And here’s the problem: Culberson’s concerns with the vans were not limited to, “when it gets too hot the machines might not work right” ambient-temperature problems. Culberson was also concerned about power fluctuations in the vehicles’ electrical systems: “She also said an electrical glitch that was never fixed meant the sophisticated measuring machines would reset every time the van’s air conditioner was turned on” (Houston Chronicle, 28 July 2011). (Dane Johnson, the DWI lawyer who conducted the hearing, was kind enough to share transcripts (pdf or zip).).
DPS didn’t test for electrical problems; this is not a piddling concern. One of the reassuring claims that its report makes is that the machines would produce no results when their sample chambers were overheated because they failed their diagnostic tests “with … all air conditioning units in the BAT van turned off.” But DPS was not testing for accurate results during power fluctuations, nor was it testing whether the diagnostic tests functioned when the power fluctuated. (In fact, given the objectives of the study—the Ambient Temperature Study—I would not be surprised to learn that they ran an extension cord into the van to operate the machines.)
The Intoxilyzer 5000–68 used in the BAT vans runs on “standard AC electrical power” (pdf of DPS Breath Alcohol Testing Operator Manual). It was designed to be used in a police station, not in a van. It is a delicate instrument. How does it handle the surges, spikes, brownouts, and noise on the line that you might get using a mobile generator (or a van alternator) with a power inverter?
Sometimes, according to the Chronicle’s account of Culberson’s testimony, it resets.
Does it sometimes instead give false results? We still don’t know.