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Retaliation Lawsuit Over Faulty DWI Testing Moves Forward, Officials to Testify Next Week

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This summer, a federal appeals court revived a lawsuit filed by two former Houston Police Department crime lab supervisors who allege Harris County prosecutors retaliated against them for exposing serious flaws in how local police tested suspected drunk drivers.

The case takes yet another major step next week, when according to court documents county officials will be questioned on what exactly happened with HPD’s breath-alcohol testing vans and why two analysts who raised serious concerns about the validity of those tests were ultimately fired.

Court records show that Harris County Judge Ed Emmett, his criminal justice adviser and all four Harris County commissioners are scheduled to be deposed Monday in the lawsuit filed by Amanda Culbertson, a former HPD crime lab supervisor, and Jorge Wong, who was once an analyst at the lab.

While it’s virtually unheard of for the whole bench of top county officials to get called in for depositions, the Harris County District Attorney’s Office told the Houston Chronicle this week they’re not too worried and expect the testimony will “bolster the county’s position.” Still, that means it’s possible deposition testimony might yet trickle out showing county officials’ responses to these troubling allegations from the former analysts: that HPD ignored serious questions about how its officers were testing suspected drunk drivers; that analysts who testified to their concerns in court were not only retaliated against, but that one was even investigated for perjury; that prosecutors ultimately pressured county commissioners to end a longstanding contract for breath-alcohol testing to punish those analysts who claimed they had discovered serious flaws in local law enforcement's DWI testing.

Culbertson says she began warning local officials about problems with HPD’s so-called BAT vans (essentially roving offices for HPD officers to give breath tests to sauced drivers in the field) sometime in 2010. She grew concerned the vans suffered from electrical and overheating issues that could mess with the gauges and control samples used to calibrate the vans’ breath-testing machines.

Wong, according to the lawsuit, shared Culbertson’s concerns. They both claim they told HPD officials about the problem, but that department officials never took those concerns seriously. That’s why both resigned from HPD in the spring of 2011 to work as analysts for Lone Star College, which just so happened to contract with the Harris County Sheriff’s Office to oversee breath-alcohol testing for nearly 30 years.

Culbertson claims the retaliation started shortly after she resigned from HPD’s crime lab, when she was called to court to testify in a drunk driving case in May 2011. Culbertson says she simply told the jury the truth: that she couldn’t vouch for the accuracy of the testing equipment in HPD’s BAT vans. After the jury acquitted the defendant, former assistant Harris County prosecutor Rachel Palmer wrote to Culbertson’s bosses at Lone Star College to say prosecutors didn’t want her testifying in any cases involving breath-alcohol tests for HCSO.

Culbertson insists that was prosecutors’ not-so-subtle way of pushing for Lone Star to fire her. (If you’ve got a contract to run breath-alcohol tests for the county, that means your analysts will probably have to testify about those tests in court. And if prosecutors say they don’t want your analyst to testify in court, ever, that might present a problem. )

A week after Palmer first wrote to Culbertson’s bosses at Lone Star College, she sent a memo to her own boss at the DA’s office saying, “after this debacle, we realized that she (Culbertson) could not be trusted to testify in any breath test.” Palmer added that she was “gravely concerned about [Culbertson’s] ability to testify fairly in cases going forward.”

Meanwhile, Lone Star College’s longstanding contract with the sheriff’s office was up for annual renewal, and this time prosecutors wanted the contract to go to someone else — perhaps because Culbertson kept getting called to court on DWI cases, where she’d testify about the unreliability of HPD’s BAT van testing.

According to court records, Culbertson met with DA’s officials in August 2011 so she could explain her problems with the breath-alcohol tests and so prosecutors could discuss the concerns raised by her court testimony. When prosecutors left that meeting, they notified at least two defense attorneys of “potentially exculpatory or mitigating evidence based on Culbertson’s concerns.”

If Culbertson’s concerns about faulty BAT van evidence were enough for prosecutors to alert defense attorneys, it’s hard to understand why at the same time prosecutors began investigating her for perjury. Culbertson, in her lawsuit, alleges Palmer even began telling other prosecutors that Culbertson wasn’t a credible witness in court — exactly the kind of thing that can jeopardize a crime lab worker’s career.

Culbertson and Wong allege that it was around this time prosecutors started pushing for Harris County commissioners to kill the decades-long contract between the county and Lone Star College for breath-alcohol testing. Some commissioners weren’t even quiet about why they were instead awarding the contract to the Texas Department of Public Safety, which was actually more costly.

At a September 2011 Commissioners Court meeting, several defense attorneys spoke publicly about their fears that the Lone Star contract was ending because of Culbertson's and Wong’s actions as whistleblowers. As the federal Fifth Circuit appeals court wrote this summer in its ruling reviving the lawsuit against the county: “During this meeting, one County Commissioner stated publicly that he supported terminating the Contract with Lone Star because the County should not work with someone who takes an adversarial position to the DA's Office.”

Ultimately, Culbertson and Wong were fired on October 31, 2011, shortly after Lone Star College lost its contract with Harris County. Hopefully we’ll soon get to read county officials’ thoughts on what, if anything, they had to do with that. 

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