Ray McMains

Ray McMains, co-founder of F.I.S.S. (Forensic Information Solution Services), was with the Texas Breath Test Program for 17 years as a certified Technical Supervisor. In 2009, he was honored with the Medal of Merit award for his development of the State’s Black Mamba software system. This is the system that acquires and retains the data from all the Intoxilyzers used statewide. Prior to working with DPS, Ray served in the United States Army as a Cryptologic Intercepter and was stationed in Korea, where he intercepted and analyzed foreign communication signals.

The New Discovery Statute: Applicability to Motions for Discovery in DWI Breath Test Cases and the Need for Preservation of Information in Breath Test Cases

General Comments

Article 39.14 of the Texas Code of Criminal Procedure in its new form adopted by Senate Bill 1611 (eff. 1/1/14) provides for expanded discovery in criminal cases. The new discovery rules represent a significant change in the trial of criminal cases in Texas, including DWI. There are other provisions for mutual discovery and production certification procedures as well as for sanctions that may apply to both the prosecution and the defense under the new statute. These features are important to the defense bar because they impose new duties on criminal defense counsel, but they are not discussed in this paper. Therefore, it is necessary that the practitioner familiarize her/himself with the new law for cases prosecuted after the effective date of the new Article.

A proposed motion for discovery follows this introductory material.

This paper deals with breath testing and the discovery which may be required in a given breath test case under the new law. These suggestions are not exhaustive. However, the comments and the appended motion provide the items the authors recommend to be requested as well as the reasons and authority for them (when available) under the Standard Operating Guidelines (SOGs) for breath testing in Texas. Much work previously has been provided to the authors of this article by Troy McKinney of Houston and Doug Wilder of Dallas for which we are grateful.

Art. 39.14 of the Texas Code of Criminal Procedure provides, in relevant part:

(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

Comment

This italicized phrase, “evidence material to any matter involved in the action,” may be the broadest provision for discovery in criminal cases in the history of Texas jurisprudence. Brady v. Maryland1 was certainly a landmark decision, but its application and enforcement over the years since its advent have been difficult for defense lawyers to say the least.2 The new statute is broad enough to include evidence which may be used on cross-examination to demonstrate things such as the invalidity of the test results, the invalid procedures used prior obtaining the results, faulty machinery, lack of proper certification, lack of proper evidential maintenance procedure, fraud, incompetence, destruction of evidence or other issues related to the technical supervisor’s work or the work of his trainees or supervisors.

The preceding emphasized language of paragraph (a) is broad enough to include the work of contracting technical supervisors who are not employees of the Texas Department of Public Safety. These independent business people will face a significant increase in their photocopying and record keeping expense and labor. The State must provide

. . . tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

As will be shown below, the prosecutors of this State can do two things to make certain that their record-keeping job is simple: make the “Black Mamba” database available to the public in the useable form which the Office of the Scientific Director (OSD) uses daily, and force the Scientific Director to stop hiding his maintenance records from the database. Nevertheless, this language is broad enough to place the duty upon the district and county attorney to maintain records for compliance with dis­covery of breath test data in DWI cases. Again, compliance is simple if the OSD makes the “Black Mamba” database available to the public in the useable form which the OSD uses daily and if the OSD ceases to hide the maintenance records.

Although the breath test slip in a given DWI case may be a public record3 and available to the public through the database, it may not be evidential. Under the SOGs there are certain mandatory steps that must be taken by the technical supervisor in order the make the intoxilyzer’s results admissible as scientific evidence.4 Some reasons a test that appears to be valid but which actually would be inadmissible are: putting an instrument into service without an embossed seal Evidential Instrument Certificate or an embossed seal instrument certification letter; putting an instrument into the field without properly performing the calibration procedure described in The Standard Operating Guidelines Evidential Breath Alcohol Instrument Calibration (OSD-CAL-01) or adjusting the calibration without following said procedure. According to the SOGs, maintenance records shall be organized and detailed enough to allow another technical supervisor to render an opinion in potential litigation concerning the maintenance history of any instrument, so when this is found not to be the case, the test slips should not be admissible.

(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

Comment

This paragraph covers the technical supervisor. It is so broad that it may cover things like emails done in the ordinary course of research or supervision between experts or agency personnel. However, it clearly would not cover work product.5 The language is broad enough to require production of most of the requests in the attached motion.

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

Comment

Again this language appears to place the duty upon the State to provide ongoing access to data specifically related to the case as well as to the quality of the breath testing program generally as it relates to the case. This duty includes updates in SOGs, internal memoranda on the application of the SOGs, disciplinary records of technical supervisors and their supervisors and auditors, emails related to professional performance of personnel or changes in maintenance procedures relevant to a particular case, and certification of operators and their performance records, in­cluding their certification exam results. Some of these things could be viewed on the Black Mamba database, but for reasons known only to OSD they have not been made publicly available.

(a) . . . the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of . . . any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

If for any reason the district or county attorney fail to comply with the discovery rule which requires the technical supervisor or the OSD to provide data which “constitute[s] or contain[s] evidence material to any matter involved in the action,” the technical supervisors themselves can be held responsible for producing the required discovery.

There is no “trust me” in science.

—Justin McShane

The Need for Preservation of Information in Breath Test Cases

While the SOGs are not in compliance with Brady v. Maryland, they nevertheless provide a template for discovery of the workings of what has been a somewhat amorphous and clandestine breath alcohol testing program in Texas. However, a database6 exists that is connected to every intoxilyzer in the State of Texas, and it uploads every subject test, practice test, lab test, and inspection test recorded by each machine on site. The OSD appears to be attempting to determine in advance what information in his program is to be used as evidence and what is not to be used. To this end there is an exception to machine recording during routine maintenance on site as well as during off-site lab work or calibration/recalibration.7 In those circumstances, the SOGs require that the technical supervisor turn off the recording feature, and that he or she manually print test or other records which reflect the stated work done on the machine as well as the machine’s stated performance during the unrecorded procedure.8 During this time a technical supervisor can alter dates, times, test record numbers, and other data that would ordinarily be uploaded to the database in the machine’s regular subject, practice, inspection, or lab modes. Only that which the intoxilyzer records in its memory is uploaded to the database and ultimately becomes public. The printed records are separately scanned and uploaded into different files.

This off-line requirement is a new procedure brought into effect by the SOGs that were adopted on March 1, 2011. Prior to that date, all maintenance could have been recorded and retained in the database. After March 1, 2011, it is only available in the database if a technical supervisor elects to go outside the requirements of the SOG. The machines have not changed, but the rules have changed. It is now mandatory that the Department and its employees hide their maintenance records from the database until copies of them are requested under the procedures set out in the SOGs. To that end, the SOGs dictate that the electronic data as well as every written or printed document concerning the intoxilyzers and their simulators (reference sample devices) are public records, and that they can be located on the internet or requested from the OSD of the Texas Department of Public Safety in a Freedom of Information Act request, a subpoena duces tecum, or a court order.9 Thus, one may request hard copies or electronic versions of the printed reports of the procedures and the machine’s performance during the procedures, and these copies will be produced.

The intoxilyzer’s memory records actions taken on a chro­no­log­i­cal and sequential basis. Recorded actions can be com­pared to printed records for clarity or to notice any inconsistencies. However, when the recording feature is turned off there is no assurance that the records which are produced will accurately reflect what procedures were performed or what the machine’s responses were to those procedures during that time because both the database and the documents can be altered.10 Additionally, the documents themselves may be falsified, lost, or destroyed.11 If the recording feature is on, it is more difficult to falsify, lose, or destroy records. Therefore, it is curious that the OSD has placed a provision in the Guidelines that the database is not evidence because it can be altered.12

Thus, there is no certainty during discovery that the technical supervisors or the OSD will be complying with Brady since there is no longer a database for comparison of work done on the machine to the printed material produced during maintenance in order that one may be assured that the records which are produced are true. Sadly, this statement is as true for the OSD as it is for defense counsel and prosecutors. Prior to March 1, 2011, the Director could go online and review the work of his field personnel. Now he must travel, for example, to El Paso to look at the technical supervisor’s files in order to determine whether he is doing his job. If an auditor’s presence is announced in advance, a technical supervisor can use this off-line mode to clean up his paperwork.

The OSD requires lawyers, judges, jurors, and the public generally to trust that his personnel are doing their jobs honestly and correctly. Nevertheless, the past performance of several technical supervisors who have been imprisoned, suspended, or had to resign because of fraudulent or incompetent record keep­ing and destruction of maintenance records leads one to believe that trust is a poor substitute for proper documentation in science. Currently, disciplinary actions taken against technical supervisors are not disclosed voluntarily by the OSD. For example, if a technical supervisor is suspended or ordered to re-take the supervisor exam, that fact should be made public and disclosed during discovery. The fact that this type of suspension has happened at least twice in Texas over the past year will probably be news to those who read this paper. The OSD should be required to publish all disciplinary actions taken against its personnel in a way similar to the State Bar, the Medical Board, and other State agencies.

If the work of the technical supervisors is public record, the OSD must make it available on the database so that their work and the machines’ performance can be verified. In this way the vehicle of breath test science can be used by both parties in the DWI trial to convey their views of the case, and the science will no longer take a back seat to law enforcement.

Notes

1. 373 U.S. 83 (1963)

2. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) [“. . . to find reversible error under Brady, an appellant must show that (1) the state failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the undisclosed evidence constitutes exculpatory or impeachment evidence that is favorable to him, that is, if disclosed and used effectively, the evidence may make a difference between conviction and acquittal; and (3) the evidence is material, that is, it presents a reasonable probability that had the evidence been disclosed, the outcome of the proceeding would have been different”].

3. The opinion in Boutang v. State, 402 S.W.3d 782 (Tex. App.—San Antonio 2013, pet. ref’d) displays ignorance of the realities of breath test science as well as of the Texas program, and it does a great disservice to justice in DWI cases. Intoxilyzer monitoring, maintenance and repair, and strict adherence to science by the technical supervisor are the only assurances that the breath test slip is accurate enough to be called evidence. The intoxilyzer is a tool; it is not the witness. Thus, any technical supervisor who was responsible for its maintenance and calibration during the relevant time must be available to be cross-examined since Texas technical supervisor documents and work have been intentionally hidden, destroyed, and falsified.

4. OSD-TST-01 (1) states that “These procedures were adapted for accreditation purposes.” So, if they are not followed, then the resulting test(s) were not generated using the scientifically accredited procedure. Furthermore, 19.4a of the Administrative Code states “(a) All breath alcohol testing techniques, methods and programs to be used for evidential purposes must have the approval of the scientific director.” The SOGs are the testing techniques and methods that have the approval of the scientific director, and “(f) [a]pproval of any breath alcohol testing program is contingent upon the applying agency or laboratory’s agreement to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.” For example, SOG 4A1 states: “The capability of the instrument to detect and subtract the effect of acetone shall be tested. A Technical Supervisor shall conduct a printed ACA test and introduce acetone sufficient to cause the instrument to flag the test as an interferent while producing a reference result of 0.000.”(During Technical Supervisor Training the SOGs were described as the Minimum Standards; a Technical Supervisor could do more than the SOGs required as long as all the Directives were followed.)

5. Rule 503(b), Texas Rules of Criminal Evidence.

6. The “database” is technically divided into three parts—“Black Mamba” that every Technical Supervisor Area has a copy of, “Back Mamba” that OSD uses, retrieving all the records from all the copies of Black Mamba in use, and “Op Mamba,” or the “Operator Administrator,” which contains records relating to operator certifications, including written test scores.

7. OSD-TST-01 4.A.1 & OSD-TST-01 5.C.4 & OSD-CAL-01 3.3.C.11, which do not specifically say to use ACA mode, but it is implied in that OSD-CAL-01 3.3.E states that one should affix labels to the resulting Calibration Check Printout. If done in Subject Mode, that would be 20 pages as opposed to one printout.

8. OSD-TST-01 4.A.1 & OSD-CAL-01 3.3.C.11, which do not specifically say to use ACA mode, but it is implied in that OSD-CAL-01 3.3.E states that one should affix labels to the resulting Calibration Check Printout. If done in Subject Mode, that would be 20 pages as opposed to one printout.

9. OSD-TST-01 7.B.

10. SOG (eff. 1/30/2012) 4.3.1; SOG-TST-016.a SOG says that the electronic copies are not as reliable as printed ones, when in fact the reverse is probably true due to the extensive time stamping, sequential Test Record Numbers, and the saving of raw data in places unknown to probably all Technical Supervisors.

11. One example is that of Detriece Wallace, a former Brazoria County technical supervisor, who was imprisoned for falsification of intoxylizer maintenance records. One other example is where a failed inspection in the electronic data of Al McDougall’s does not exist in the “hard copy” form, though another passing inspection exists with the exact same test record number as the failed inspection.

12. OSD-TST-01 6.A & OSD-TST-01 7.C Additionally, 7.C contains statements that the authors believe are completely disingenuous and misleading. For instance, the statement that “Air Blank data is not stored.” Although true, the statement is irrelevant since all Air Blanks are programmed to be 0.000, thus by looking at the electronic record one can tell what are the Air Blanks. If the electronic version shows it as a valid test, all Air Blanks on the printed copy will be 0.000, but if the electronic version shows it as an invalid test, NO Air Blanks will be on the printed copy. Additionally, the SOGs say “the electronic data may be altered or fabricated entirely.” Although this statement is true, the language implies here that printed copies cannot be fabricated when, in fact, printed copies are more easily fabricated and/or altered and/or discarded.

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