False "Science": DWI Hypocrisy

Where do I begin? Judges, jurors, district attorneys, cops, MADD? Let's start where it belongs: the National Highway Safety Administration (NHTSA). Back in 1977, the government gave NHTSA a grant to create some roadside tests for DWI arrests. Dr. Marcelline Burns, who holds a Ph.D in psychology was given carte blanche authority on this project. She came up with the field tests we know today. Her research was so bad (flunking on both the validity and reliability scales researchers measure tests against), that she reattempted her same research in 1981 with the same scientifically unacceptable results. This time she refused to release the validity data. Same story-  when the feds lowered the legal limit from .10 to .08 she conducted three "studies" (San Diego, Colorado, and Florida) in an attempt to justify her tests to the lower legal limit. It was such a massive failure she refused to release the validity or reliability data. Federal judge Grimm in an exhaustive review of her data and current scientific peer review research held in U.S. v. Horn, 185 F. Supp. 2d 530 (D. Maryland 2002),  that what law enforcement calls as the "standardized" field sobriety tests are unsuitable for use. Yet, law enforcement all across the country continue to use these substandard tests and imprison people on this basis. Throughout the years, although the tests have not changed (that is why they call them "standardized") NHTSA has removed critical limiting language. For example, the portion that warns that the "validity of the tests may be compromised" if the tests are not given in a standardized manner has been removed. In a brazen move, they have even now inserted a provision that these tests are not affected by varying environmental conditions. It does not take a Ph.D in psychology to know that ice, wind gales and wet, slippery surfaces will affect the tests despite their catchall disclaimer.

I am ashamed we have a federal agency that is so dishonest. I am ashamed that law enforcement does not reject research and tests that do not meet basic mathematical and scientific peer review standards. The fact we allow our fellow citizens to be arrested, convicted and have their lives ruined on this is unacceptable.  This is reality. This is truth and this is wrong.

* I have a paper and presentation both published and presented nationally on this subject. Feel free to request a copy.

If You Drink Alcohol, You Should Read This- They Will Get a Warrant for Your Blood and Then.....

The Texas Department of Public Safety laboratory in Houston was responsible for thousands of botched results (some completely fraudulent) because of lab analyst Jonathan Salvador. This occurred from 2006-2012. The Texas Forensic Commission got wind of his questionable work and launched an investigation. One of the commissioners in the investigation, Dr. Nizam Peerwani concluded that the Texas Department of Public Safety lab's office "tolerated under-performance". So this was not just a problem from the analyst, but the whole lab shared culpability. Rather than properly address the problems after this scandal in order to improve testing, Texas DPS convinced our legislators to restricting test results in court only to them. Hence, Texas Code of Criminal Procedure 38.35 was enacted that restricts test results admitted to court to be limited to those of a lab with the Texas DPS certification. Laboratories like Max Courtney's was shut down immediately. Max Courtney's lab was instrumental in exposing the bad lab problems of Texas DPS. According to Dr. James Booker, an expert witness, the shoddiness and problems of Texas DPS continue unabated. It is just more difficult to see and expose because independent labs can't retest the samples. No lab seeking DPS certification wants to jeopardize it by exposing problems with Texas DPS testing.

One would think that Texas DPS would have fired Jonathan Salvador after his fraudulent work was exposed and District Attorneys across the state were dismissing his cases. They did not. More sickening, a grand jury in May of 2012 refused to indict him despite the Texas Forensic Commission's findings. He finally resigned on his own in August of 2012. What does this state for society? Sometimes there are bad juries, no two ways around it. It's a pipe dream to expect Texas DPS to monitor themselves. We are only jeopardizing and denying due process to those accused of crimes in Texas by limiting forensics to an entity with a proven bad track record. Justice requires truth. Truth requires trust. A lawyer's job is not to trust the government, but the public should have some amount of trust- trust that can't be had in our present framework. It is time for the legislature to amend this problem. There are better labs with higher standards that the people of Texas should be, as a right of law, entitled to.