This only makes sense in the bizzarro world of Texas DPS: No proof, but we prosecute!

One of the tenants of the criminal justice system is that everyone accused is presumed innocent. That means that everyone starts out in the courtroom with a not guilty. It remains a not guilty throughout the trial no matter how many witnesses come forward or what they say. It remains so even in the jury deliberation room unless all jurors agree that there has been ACTUAL PROOF on the ESSENTIAL elements of the crimes charged beyond a reasonable doubt.

In every criminal case, there are elements of the crime that the government has to prove beyond a reasonable doubt. Think of them like ingredients in baking. If you don’t have an essential ingredient, you can’t bake what you set out to make. You fail is a chef. Same thing is true in criminal law. If the government doesn’t have an essential element, then they can’t “make” what they sought out to prove (guilty). The government fails.

In DUI cases, one of the essential elements is proving that there is actually ethanol in the persons system above a certain level. This qualitative (ethanol) and quantitative (how much ethanol) has be be validly proven beyond a reasonable doubt. Without that proof, without that essential element, the government cannot convict.

The same type of thing holds true in drug possession cases, one of the essential elements is proving that the seized item actually is the contraband (e.g., it’s cocaine; it’s marijuana; it’s heroin). This qualitative identification has be be validly proven beyond a reasonable doubt. Without that proof, without that essential element, the government cannot convict.

Well, apparently this isn’t so in the great state of Texas.

According to the Texas Department of Public Safety: “The crime labs only will analyze drug and blood-alcohol evidence for misdemeanor cases if prosecutors need a lab report…”




You always need a laboratory report to prove the essential element of the crime charged! (Well, just to be clear, you need valid testing with verifiable data to prove the element, not just a stated conclusory report)

According to this article:

DPS cuts evidence tests; changes could decrease convictions, DA says

Posted: September 22, 2012 – 9:35pm

Dogged by a backlog of blood-alcohol and drug evidence, the Texas Department of Public Safety is restricting testing at crime labs principally to misdemeanor cases, a move prosecutors said might hurt their chances at locking up criminals.

“It’s a stopgap measure,” Randall County Criminal District Attorney James Farren said. “It’s a Band-Aid.”

A DPS official sent a letter last month to law enforcement agencies and prosecutors, informing them the department temporarily will prioritize felonies for drug and blood-alcohol testing starting this month because of increasing demands.

The crime labs only will analyze drug and blood-alcohol evidence for misdemeanor cases if prosecutors need a lab report, the letter said.

Skyrocketing blood- alcohol and drug submissions have slowed forensic scientists’ ability to complete the tests in a timely manner, the letter said.

The agency plans to implement the measure until labs can return results within 30 days, DPS spokesman Tom Vinger said.

But Farren said he anticipates demand will continue to grow, and forensic scientists won’t be able to keep up.

It’s a trend Farren said he’s seen before.

In the late 1980s and early 1990s, law enforcement agencies submitted all forensic evidence to FBI crime labs, causing backlogs and long delays, he said.

That’s when law enforcement agencies turned to local and state labs.

“And it took a while, but we’ve reached the same place,” he said.

DPS operates 13 crime labs that process forensic evidence, but two labs — one in Amarillo and another in Laredo — don’t provide blood-alcohol testing.

Department officials said each lab is staffed by an average of 18 forensic scientists, and only a handful specialize in blood-alcohol and drug testing.

In 2011, the state labs averaged 1,672 incoming blood-alcohol cases and nearly 4,000 submitted drug cases, according to DPS data.

That same year, scientists completed an average of 1,623 blood alcohol tests and 3,868 drug tests, DPS said.

The state labs were among the more than 400 publicly funded labs nationwide that started and ended 2009 with a total backlog of more than 1 million cases, according to a U.S. Department of Justice survey.

DPS officials said they saw a 500 percent increase statewide in blood-alcohol requests during the last six years, while drug cases steadily have been increasing partly because of newer synthetic marijuana products.

Most prosecutors and local law enforcement officials said they understand why DPS made the move.

“They’re faced with a reality, and so are we,” Farren said. “It makes (prosecution) more difficult. We’ll have to ration ourselves, but (DPS) is doing the only thing they can do.”

Farren’s office prosecutes hundreds of misdemeanor drug and driving while intoxicated cases, he said. Most first- and second-time driving while intoxicated and marijuana and synthetic drug offenses are misdemeanors.

Amarillo police estimated they submit evidence for testing in at least 700 misdemeanor and felony drug cases each year.

Through mid-August, APD officials said, investigators had sent up to 150 blood-alcohol cases, about half of those misdemeanors. DPS’ move will at best delay the processing of cases, Amarillo police said.

DPS’ Amarillo lab takes about eight months to process drug evidence, Vinger said.

Officers can testify about what they see or smell, and by law it’s enough to make a charge stick, Farren said. But juries expect more in the way of forensic evidence than they once did, he said.

The hope is the suspect will agree to a plea deal, and most do, Farren said. But the cases that are taken to juries can go either way, he said.

“The only solution is not attractive,” Farren said.

More labs and technicians aren’t feasible when lawmakers are expecting another budget deficit for the upcoming legislative session, he said. Lawmakers have asked state agencies to slash another 10 percent from their budgets.

Crime lab funding has remained fairly steady following the past two legislative sessions, Vinger said.

“DPS has been able to address some needs through grant funding, and we will continue to seek the resources needed to deal with growth,” he said.

Sen. John Whitmire, D-Houston, who heads the Senate Criminal Justice committee, said what happens next will depend on what his fellow lawmakers do in the upcoming session.

“We’ve got to spend more money for public safety,” he said. “If the state doesn’t do testing, local departments will have to take it on.”

But prosecutors don’t have many options. While bigger cities have their own crime labs, most don’t have the money to do that or to send cases to private labs.

“It’s a catch-22,” Carson County Sheriff Tam Terry said. “Counties may have to step up and take care of some things.”

Terry said his department sends few misdemeanor cases for testing, but the policy still will have an effect.

“You have to fund some things,” Terry said. “If you don’t, you can’t be surprised when those services go away.”

P.S., check out the video below to see the police technician (complete with his holstered gun–what does a scientist need with a handgun in the laboratory??) say that he is doing a fingerprint comparison to get a “match.” Scary stuff.

Stay classy DPS.

Stay classy.

Leave a Reply

Your email address will not be published. Required fields are marked *