Bexar County Blood Draw Cases Fatally Flawed

There's a secret in the Bexar County criminal justice system. It hasn't been well kept, but people still aren't being open about it. The secret is this: thousands of Driving While Intoxicated ("DWI") cases have been fatally contaminated by the county's blood testing contractor, Integrated Forensics Laboratory ("IFL"). IFL was responsible for testing arrested people's blood to determine their Blood Alcohol Concentration, or BAC. The San Antonio Express News reported that 350 DWI cases were affected in May 2014 (Moravec, Eva Ruth, "Lab errors place Bexar DWI cases under scrutiny." May 22, 2014). The situation has gotten much worse.

The District Attorney, then Susan Reed, responded to the problem of a fired lab tech forging paperwork, among other misconduct, by asking the same lab that screwed up the tests in the first place to retest the samples in question. However, what was not disclosed is the tech in question, Cherri Lemon, was not the only tech to leave IFL under unusual circumstances. Before Lemon, Aubrey Norberg left the lab, and many of the cases she handled, in limbo, too.After Lemon, a new lab tech, Elizabeth Feller, was hired to retest the blood samples in the questionable cases. Feller, it turns out, has previously mishandled samples for another lab. She lied to conceal that misconduct in a suppression hearing in one of my cases. In that hearing, the first in which Feller was compelled to appear and subjected to a DWI defense lawyer's cross-examination, I argued that IFL's blood tests couldn't be trusted and ought to be excluded from court. Feller perjured herself to avoid losing, but we caught her. Feller has now been fired from IFL.

The original 350 cases, the hundreds of retests, and the hundreds of new cases whose blood has since been sent to IFL are collapsing. The administration under District Attorney Nico LaHood has wisely chosen not to use blood test results from IFL (Chasnoff, Brian. "LaHood Stops Sending DWI Samples to Lab." Express-News, March 18, 2015). They have also stopped sending new blood samples to IFL. Those samples aren't being sent anywhere else, either. So, clients whose blood was drawn as part of a DWI arrest in Bexar County are unlikely to see the results of the BAC testing in court.

Thousands of cases have been affected. All of those cases will require a retest by a reliable lab or their prosecutions will be damaged. Taxpayers have paid for this testing and they will pay for additional retesting. In the meantime, many people have been convicted by tainted evidence. Although we managed to force Feller into court and prove IFL was unreliable, IFL was testing blood from San Antonio for years. Taxpayers will pay for their lawyers to revisit those convictions, although the DA's office hasn't informed potentially wrongly convicted persons of the problems at IFL.

Two examples demonstrate the problem. One case in my office is a third DWI in felony court. The blood sample in that case was handled by all three disgraced techs. The evidence seals were breached and left open for weeks. The case number was changed, meaning two people's blood now have the same number. My client has avoided a felony conviction but the other person still doesn't know that their blood test result may represent my client's BAC. Another case is a person whom I believe to be innocent. We need her blood tested to prove that she was not intoxicated. My innocent client will be punished by delay while my guilty client avoids the consequences of his actions and some unknown third person is being prosecuted with my client's evidence.

The DA needs to come clean about the problems caused by his predecessor. Bexar County residents deserve to know why the guilty aren't being fully prosecuted, the innocent are being denied a fair justice process, and the taxpayers are paying for Reed's mistakes. LaHood needs to do something else Reed refused to do. He needs to prosecute the State's witnesses who covered up this problem and seek restitution from IFL for all of our money that they and Reed wasted. Perjurers like Elizabeth Feller undermine our entire criminal justice system. Their secrets must be acknowledged and punished.

***If you have been subjected to a blood draw as part of a DWI arrest in Bexar County, or represent clients who have been, please contact Hoelscher Gebbia Cepeda, PLLC for information about Elizabeth Feller and IFL. We are happy to contribute our knowledge to your defense. If you have been convicted as a result of a blood draw in Bexar County, Hoelscher Gebbia Cepeda, PLLC is offering free consultations with our Of Counsel appellate lawyers to overturn convictions for the wrongfully convicted victims of Integrated Forensics Laboratory. We may be reached at 210-222-9132.***