DWI Supervisors’ Lawsuit Dismissed

Federal Judge Dismisses Whistle-Blower Lawsuit Brought by Former Harris County DWI Testing Supervisors

Blood and breath tests provide the key evidence in most Texas DWI cases. By law, a person is automatically considered intoxicated–i.e., too drunk to drive–if they have a blood-alcohol concentration (BAC) of at least 0.08 percent. Reliable testing is the only way to establish a DWI suspect’s BAC with any reasonable degree of certainty.

RESOURCE: BAC Calculator
RESOURCE: Info on High BAC DWI Cases

So when questions emerge regarding the actual reliability of certain testing methods, prosecutors and public officials understandably go on the defensive. Nobody in a position of authority wishes to acknowledge, mush less concede, there may be faults in the testing process. And in fact, a federal judge recently dismissed a lawsuit brought by two whistle-blowers who tried to do just that.

Nine years ago, the Houston Chronicle reported that three employees of the Houston Police Department’s crime lab resigned “because they could not trust the integrity of results from several mobile breath-testing vans.” At the time, HPD maintained six vans specially outfitted with mobile testing equipment. But according to Amanda Culbertson, one of the employees who quit, there was an electrical glitch in the vans that improperly caused the testing equipment to reset each time the van’s air conditioning turned on.

Culbertson and another former employee, Jorge Wong, also identified environmental problems in the vans and “misuse by the operators” as creating problems with individual tests.

At the time, Culbertson and Wong no longer worked for HPD. They had taken positions with Lone Star College, which held a renewable, one-year contract with Harris County to provide breath-alcohol testing services for the sheriff’s office. While employed by Lone Star, Culbertson testified in a DWI case regarding a test she had administered while still working for HPD. Culbertson told the jury that she “could not verify that the instrument had been working during the test.” The jury subsequently acquitted the defendant.

The Harris County District Attorney said it asked the Texas Department of Public Safety to investigate Culbertson and Wong’s concerns regarding the testing vans. DPS said it found the allegations “unfounded.” A few weeks later, Harris County decided to switch its testing contract from Lone Star to the DPS. Without the need for their services any longer, Lone Star fired Culbertson and Wong.

Culbertson and Wong later filed a lawsuit in federal court, alleging that Harris County illegally retaliated against them for their criticism of the DWI vans.

On September 4, 2020, U.S. District Judge Lynn N. Hughes dismissed their lawsuit. She found Culbertson and Wong lacked any legal standing to pursue their claims. She noted that both plaintiffs were “at-will” employees of Lone Star, and they knew their jobs were contingent on the county contract. The county itself, however, “played no role in Lone Star having fired them.”

Nor did the county do anything wrong in switching its contract from Lone Star to the DPS, Hughes said. She pointed out that the DPS “offered them a better deal — they could provide more technicians and the ability to replace instruments at a lower price than Lone Star had offered.”

The judge was also apparently critical of Culbertson and Wong’s decision to criticize the problems with the testing vans in the first place, stating it “jeopardizes the state’s ability to prosecute DWI cases fairly.”

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Of course, a prosecution is hardly fair when it’s contingent on unreliable evidence. That’s why it’s critical to challenge any testing result that may be tainted or performed in a manner that could produce erroneous results. An experienced DWI attorney can assist you in identifying potential issues with the evidence introduced against you.

If you need representation in connection with a DWI arrest, contact the Law Offices of Tad Nelson & Associates in Houston, League City or Galveston today.