Delayed results may hurt cases

Tests

drunken drivers who voluntarily gave a blood sample might get to keep their license and stay on the road until the results come back.

It could also keep defendants in jail for longer than they ordinarily would stay, “which results in increased costs to often cash strapped local jurisdictions,” warned the public safety agency in its 201415 budget appropriations request filed three months ago.

Clay Abbott, a DWI resource prosecutor for the Texas District and County Attorneys Association, said he fears that the lab delays also can jeopardize the strength of cases.

“Memories fade,” he said. “Lab analysts handling the case move. Police officers move. All of these delays keep hurting us.”

At the very least, the growing test delays keep crash victims, defendants and others waiting for a resolution to their court cases.

Austin defense attorney Janet Stockard, who frequently handles DWI cases in Austin and South Padre, said the delays have forced her to delay trials for her clients.

She cited a Cameron County case. Charged in July, her client has been unable to get his day in court because his blood sample has languished at the state labs.

“We were sitting around forever waiting and waiting,” said Stockard.

DPS spokesman Tom Vinger didn’t provide statewide numbers showing the increase in blood-alcohol test requests. But at the regional DPS crime lab in Austin, lab workers last year tested 2,600 blood samples — about 40 percent more than the 1,860 samples they tested in 2010.

The amount of time for DPS analysts to work the cases went from about 30 days during the past three years to a current average of 60 days.

The effect of DPS lab delays are felt across the state. While big cities, including Austin, can afford their own crime labs, the vast majority of the state’s 2,500 law enforcement agencies rely on DPS labs to test evidence, read fingerprints and identify illegal drugs.

In response to the surging demand for blood-alcohol tests, in recent months DPS has asked its lab workers to forgo other work to concentrate on testing blood.

Because analysts who handle blood samples also conduct forensic drug tests to determine whether substances confiscated by police are illegal, officials in an August letter asked prosecutors handling misdemeanor drug cases to delay sending their samples. Police and prosecutors can still send samples in felony cases as soon as they seize the drugs.

Now, according to the letter, law enforcement should submit such misdemeanor evidence only when it is essential to their case. DPS officials said they don’t expect the request to create additional backlogs; often, analysts were testing such samples only to have the cases, frequently lowerlevel crimes, resolved before they obtained the results, officials said.

“This temporary measure will allow us to focus our finite resources on the most serious controlled substance offenses while still providing analysis on requested misdemeanor cases in hope of expediting our role in the criminal justice process,” the letter said.

Also, in an effort to decrease the wait time on blood results, DPS officials said in interviews with the AmericanStatesman and KVUE that officials have increased the number of analysts conducting blood tests by 20 percent — but only by temporarily moving about 15 employees from other jobs in the labs.

Vinger said the positions were assigned to other lab areas that didn’t have the same volume of samples, allowing the agency to redistribute staffers without creating additional backlogs.

Nevertheless, in January, DPS officials said they will ask legislators to add 11 new full-time analysts to their budget. Officials said they don’t yet know how much the additional personnel would cost.

Vinger said the agency last added nine positions to analyze blood specimens in 2009, but it didn’t seek new positions during the 2011 legislative session amid state budget constraints.

“This has created some challenges for us,” he said. “We’re moving to address those by a variety of means.”

Statewide, the DPS has 268 forensic scientists who test drugs, fingerprints and blood, among other tasks.

Many major cities, including Austin, have their own crime labs to test evidence gathered by their officers. Austin police officials said they don’t track an average time to process blood samples in drunken driving cases.

The rising number of blood samples in DWIs has come as the practice of seeking such evidence has gained acceptance across Texas.

The relatively new police tactic — officers generally must seek search warrants to collect the sample — has sparked controversy over the past five years as police have gradually looked to the evidence to bolster cases.

Opponents have argued that the samples are an unnecessary invasion and that officers should be able to build cases without them. However, police and prosecutors have said the tests provide objective and more accurate evidence in cases and have in some cases led to charges being dropped or acquittals against defendants who were shown to have not been intoxicated.

A 2004 opinion from the Texas Court of Criminal Appeals, which said police could legally draw the blood from drunken driving suspects after obtaining a search warrant, helped prompt police to begin more frequently using the practice.

In Austin, Police Chief Art Acevedo has joined other police chiefs across the state in launching “no refusal” operations in which they seek the blood of any suspect who refuses a breath test.

Many departments have hired phlebotomists to draw blood samples or have agreements with local hospitals to do so. The blood is then sent to the DPS labs.

Legislators have also changed or created new state laws requiring blood samples of drunken driving suspects in certain instances, including those who are in crashes with serious injuries or deaths. A new law requires blood evidence if any drunken driving suspect has a previous felony conviction.

The DPS struggle is the price of the popularity of blood draw programs, Abbott said.

“Really, it was an unintended consequence,” Abbott said. “For DPS, we increased their workload by five times, and this all of a sudden puts them in the position of having the same staff before we had these laws.”

“We have to scramble to deal with our success,” Abbott said.