De­layed re­sults may hurt cases

Tests

Austin American-Statesman - - THE SECOND FRONT - Con­tin­ued from A DPS has asked lab work­ers to forgo other work to con­cen­trate on blood. Con­tact Tony Plo­het­ski at 445-3605.

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.

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