El Paso attorneys claim misconduct, ‘dry-labbing’ at DPS crime lab

Several El Paso attorneys claim there’s evidence of misconduct at the Department of Public Safety’s El Paso regional crime lab, possibly compromising thousands of DWI convictions.

Criminal defense attorneys Brent Mayr and Thomas Carter and forensic toxicologist Amanda Culbertson say a lab analyst at the crime lab failed to properly test DWI blood alcohol samples.

Mayr says in El Paso, there’s an average of 3,000 DWI cases per year. Blood specimens from those cases are almost always sent to DPS’ El Paso Regional Crime Lab. The blood is sent there and tested by analysts who then determine if the blood alcohol concentration, or BAC, is over the legal limit. A report is then released and presented to the defendant.

“That piece of paper is a make or break document. It makes or break a person’s decision whether they’re going to plead guilty or not,” Mayr said.

Mayr says in 2012, he represented William Abraham, when he was convicted of intoxication manslaughter. That’s when he says he and Culbertson found discrepancies within the crime lab and found the lab wasn’t following policy or procedures. Mayr says it was brought to the lab’s attention, but in 2015, when he looked at another case he discovered evidence of ‘dry-labbing.’

“Dry-labbing is the term that is used when a lab reports a result based on a test that was never performed. It’s otherwise known as fake results. It can also be done where data is manipulated to make it seem like a test was performed when no test was in fact performed,” Mayr said.

The attorneys say during one batch of testing in 2014, an error occurred during the first run and the blood sample was supposed to be retested.

“But rather than actually retesting it, what she basically did was just copy and paste the underlying data to say this was the blood test result,” Mayr said.

The attorneys believe no test actually took place. Culbertson says she noticed the helium used to push the sample through the instrument ran out. On the following Monday, the helium tank was replaced and the run was allowed to continue. She says the entire batch should’ve been rerun. A month later the batch was tested again.

“The area counts for each of the samples of 28 different defendants were identical to the first run,” Culbertson said.

Culbertson says the area count is what the instrument at the crime lab measures. The area counts are plugged into an equation that leads to the final result. Culbertson says the area counts will almost never be identical unless someone manipulated the data.

The analyst, who has been identified as Ana Romero, is no longer employed at the crime lab. Mayr says she was employed for at least nine years and left in 2015. The work done by analysts is signed off by a supervisor. The attorneys say they don’t know if they failed to catch it or failed to review the data.

“There’s also a possibility that they are aware of it. That they do know about these problems but haven’t disclosed it and have covered it up,” Mayr said.

The group says they’ve identified 22 individuals who were wrongfully convicted.

“These are real people. These are real people whose blood was tested and were presented with these fake results and pleaded guilty and got probation, got jail time,” Mayr said.

The attorneys met with District Attorney Jaime Esparza Thursday morning.

“The science of gas chromatography is well-accepted and validated as a means of testing a person’s blood for alcohol content. We take the allegations that a crime lab analyst deliberately falsified testing results very seriously and will immediately begin a comprehensive review. We will work with the Texas Forensic Science Commission and the department of public safety in determining the truth of the allegations. That said, in intoxication-related offenses, police officers and prosecutors examine more than simply a person’s blood alcohol content in determining whether to arrest and prosecute offenders, including the traffic infraction or collision leading up to the person’s detention, their speech, odor, and of course, admissions of drinking,” Esparza said in a statement.

The attorneys believe every single record should be reviewed.

“This affects so many people not just the defendants but it affects the entire community. Imagine being a victim of a intoxicated related type offense and you think that okay, they’re going to prosecute this person but they’re prosecuting them with bad evidence. It ruins the system for everyone when things like this occur,” Mayr said.

The attorneys have only reviewed a small window of records in 2014 and aren’t sure if other people are involved. They urge anyone who may be awaiting a DWI case to check the list of possible wrongful convictions HERE.

“These records and what’s happening here only applies to DWI cases but these chemists and these labs, they operate the same way and with the same people. And so if supervisors are allowing stuff like this to happen, or they’re not catching this, who knows what’s happening on other cases. On drug cases, on DNA cases,” Mayr said.

A complaint has been filed with the Texas Forensic Science Commission. The attorneys are also calling on the Texas Rangers to assist in the investigation.

DPS officials tell ABC-7 they did not receive a complaint regarding the former employee until Thursday. They add she resigned in May of 2014. The department say it is conducting an internal review.