The Strange World of Criminal Copyright Enforcement

September 17, 2014

Pirate_flag_during_TPB_trial2.jpgTwo years after a court in Sweden affirmed his conviction for copyright law violations and sentenced him to eight months in prison, police arrested Peter Sunde, one of the founders of a popular website frequently accused of copyright infringement. Sunde and three others were convicted by a Swedish court in 2009 of assisting the distribution of illegal content online. Copyright infringement is generally treated as a civil claim, but the laws in the United States and other countries provide for criminal penalties in certain circumstances. Sunde's case relates to the growing legal field of cybercrime because of the internet's potential for wide distribution of infringing materials.

The Pirate Bay website allows users to download media, including movies, video games, and music, using BitTorrent, a peer-to-peer network protocol that allows people to distribute large amounts of data over the internet. Critics allege that this, much like other services that came before it, has led to massive amounts of copyright infringement. Other popular websites that allegedly serve similar functions have also been the subject of criminal investigations and prosecutions, including the raid on the New Zealand home of Kim Dotcom, the proprietor of the now-shuttered MegaUpload website.

In the U.S., federal copyright law includes both civil and criminal methods of copyright enforcement. Remedies in civil claims include injunctive relief and monetary damages, and a plaintiff is not necessarily required to prove that the defendant deliberately infringed a copyright. Criminal copyright claims have a much stricter burden of proof regarding a defendant's mens rea, or state of mind. Prosecutors must prove beyond a reasonable doubt that the defendant acted "willfully" to infringe a copyright. 17 U.S.C. § 506, 18 U.S.C. § 2319.

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"Cyberstalking" Across State Lines Falls Under Federal Jurisdiction, Is Not Protected by First Amendment, Says Court

September 4, 2014

PersonalStorageDevices.agr.jpgA federal appellate court affirmed the verdict and sentence in a "cyberstalking" case, rejecting several constitutional challenges to the statute. United States v. Sayer, No. 12-2489, slip op. (1st Cir., May 2, 2014). The defendant argued on appeal that the statute, as applied, violated his First Amendment rights to free speech, and that it was overbroad and vague. The court's ruling on the constitutional issues is an important piece of the developing body of laws regarding cybercrime.

According to the court's account of the undisputed facts, the victim, identified as Jane Doe, dated the defendant in Maine for about two years before ending the relationship in January 2006. For more than four years afterwards, the defendant "persistently stalked and harassed Jane Doe," id. at 2, causing her to obtain a protection order against him. His harassment moved to the Internet in 2008, when he began "to induce third parties to harass Jane Doe." Id. at 3. This included posting intimate pictures of her to the "Casual Encounters" section of the classified-ad website Craigslist and responding to inquiries, which resulted in unknown men appearing at her home on several occasions.

Doe changed her name, moved from Maine to Louisiana, and began a new career in June 2009. She eventually learned that the defendant had continued to post pictures of her to pornographic websites, some of which included her address in Louisiana, and set up fake accounts in her name on Facebook and other social media sites. She also continued to receive visits from unfamiliar men who claimed they met her online. Police seized a laptop computer from the defendant's residence in July 2010, which linked him to multiple fake social media profiles with explicit photos of Doe.

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Texas Prosecutors Provide Exonerating Evidence to Defense on Fourth Day of Trial

August 26, 2014

14th_Amendment_Pg1of2_AC.jpgProsecutors in Hays County, Texas provided exculpatory evidence to the defense, as required by law, on the fourth day of the defendant's murder trial. While this resulted in the defendant's acquittal, it raised questions regarding the delay in providing the evidence, which showed that the defendant's actions did not meet the legal standard for murder. Regardless of prosecutors' reasons for the delay, they appear to have fulfilled their duty under the Fourteenth Amendment and U.S. Supreme Court precedent, which leave a great deal of discretion to the state to determine what evidence to produce and when to produce it.

Brelyn Sorrells was charged with murder in connection with the stabbing death of Arthur Martinez at a party in San Marcos in the early hours of February 3, 2013. Police conducted numerous witness interviews, many of which conflicted with one another, and arrested Sorrells on February 6. Prosecutors alleged that Sorrells stabbed Martinez after a fight broke out at the party.

Texas law defines the offense of murder, in part, as "intentionally or knowingly caus[ing] the death of an individual." Tex. Pen. Code § 19.02(b)(1). Murder is typically a first-degree felony, which can result in imprisonment of five to 99 years, or life imprisonment, as well as a fine of up to $10,000. Tex. Pen. Code § 12.32. To convict Sorrells of murder, the state essentially had to prove that he stabbed Martinez with the intention of killing him. To defend against this charge, Sorrells had to challenge the state's evidence of intent. The state, as it turned out, had evidence that supported Sorrells' claim, but it had not produced it to the defense yet.

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Another Celebrity Marijuana Bust in West Texas

August 24, 2014

El_Paso_Skyline2.jpgThe rapper Wiz Khalifa has joined the ranks of celebrities busted for alleged marijuana possession in west Texas. Agents with the Transportation Security Administration (TSA) claim to have found marijuana at an airport security checkpoint, resulting in Khalifa's arrest. While the search did not occur at the Border Patrol's infamous Sierra Blanca station, it brought some renewed attention to the location, which has been the site of several other celebrity pot busts over the past few years. The TSA's apparent role in searching for illegal drugs, rather than contraband that threatens airport security, seems problematic enough. The use of Border Patrol checkpoints, established to enforce immigration laws, to conduct drug interdiction has also been controversial, and it ought to raise some constitutional questions.

According to the Dallas/Fort Worth CBS affiliate, Khalifa was traveling without identification at the airport in El Paso on May 25, 2014, where he had performed at a music festival the previous day. TSA agents ordered a search and found a "canister with marijuana." Since the TSA does not have the authority to make arrests, they notified police. Khalifa was charged with misdemeanor marijuana possession. He reportedly missed the arraignment scheduled for August 6, after which the judge in El Paso issued a bench warrant. He appeared as a musical guest on The Tonight Show in New York City that night.

The TSA's role in airports is, in part, to screen passengers for weapons and other items that might pose a threat to airport and airplane safety. It is not clear if they specifically search for drugs and other items that might not directly relate to their role, or if they merely report items they happen to find to local police. Either way, passengers submitting to security inspection at airports have, to a certain extent, consented to a search of their baggage. It is unlikely that a search by TSA agents that turns up drugs or other contraband would violate the Fourth Amendment prohibition on unreasonable searches and seizures. The same might not be true of many searches carried out at Border Patrol checkpoints like the one in Sierra Blanca.

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Federal Magistrate Judges Are "Revolting" Against Overbroad Search Warrant Requests for Electronic Evidence

August 15, 2014

Cloud_computing-1.jpgA federal magistrate judge has denied a request for a search warrant for electronic data stored by the internet company Google. In re [REDACTED]@gmail.com ("Redacted"), No. 5:14-mj-70655, order (N.D. Cal., May 9, 2014). In what legal observers are calling "the Magistrates' Revolt," low-level federal judges are denying requests by law enforcement officials for search warrants covering a broad range of data stored by third-party providers of internet and mobile communications services.

The magistrate who issued the decision in Redacted, Judge Paul Grewal, drew a distinction between requests for search warrants covering electronic data stored on physical media in a suspect's possession, and data stored on the third-party servers known as the "cloud." The warrant application consisted of three parts. The first part provided the background of the case and the allegations supporting probable cause. The second part identified the property to be searched as a specific email account hosted on servers located at Google's headquarters in California. It did not include any date restriction on what data was to be searched. The third section described the information in the account that the government wanted Google to disclose, followed by the information within that set of data that the government intended to seize.

Under the Federal Rules of Criminal Procedure, an application for a search warrant "must identify the person or property to be searched...[and] any person or property to be seized." Fed. R. Crim. P. 41(e)(2)(A). In warrants seeking electronic evidence, many courts have held that police cannot feasibly conduct a thorough search of data stored on devices found at a person's home, such as computers and cell phones at the site of the search. They have therefore allowed seizures of computers and other devices even if they were not specifically identified in the warrant application. Judge Grewal calls this a "seize first, search second" approach. Redacted, order at 2; citing United States v. Hill, 459 F.3d 966, 974-75 (9th Cir. 2005); United States v. Giberson, 527 F.3d 882, 887 (9th Cir. 2008).

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New State (Not Texas) Requires a Criminal Conviction in Civil Forfeiture Cases

August 8, 2014

Treasury_department_official_1907.jpgCivil forfeiture is a type of legal proceeding that allows the state to seize assets it believes have been used in the commission of a crime. Police and prosecutors can pursue a civil forfeiture action regardless of whether the property owner or anyone else is convicted of the suspected offense. A law enacted in Minnesota in May 2014 protects the rights of property owners by making a conviction of the underlying offense a prerequisite for a civil forfeiture claim. Although the property owner does not need to be the person convicted, the law provides an important check on the state's ability to seize assets.

In most states and under federal law, civil forfeiture is an in rem proceeding brought against one or more pieces of property, and it is therefore completely separate from any criminal prosecution. The owner of the property and the criminal defendant, if there is one, are not always considered necessary parties. Property owners must affirmatively assert their rights in court, which can involve substantial time and expense. An acquittal of the crime allegedly associated with the property does not necessarily affect the forfeiture case.

A common example of a civil forfeiture proceeding involves a police officer finding a large amount of cash during a search of a vehicle, impounding it based on suspicion that carrying cash means involvement in drug dealing, and bringing an action for forfeiture of the cash. Since civil forfeiture proceedings are not criminal in nature, the state must prove by a preponderance of the evidence, or sometimes by clear and convincing evidence, that the property at issue was used in the commission of a crime. This is a much lower burden of proof than the requirement of proof beyond a reasonable doubt in criminal matters, and it has resulted in people losing substantial amounts of money, their cars, or even their homes.

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Federal "Automobile Exception," According to Some Courts, Allows Warrantless Searches of Cars Without Exigent Circumstances

July 29, 2014

1965_Rambler_Classic_660_4-d_blue-white_VA-t.jpgIn most circumstances, a warrantless search by police violates the Fourth Amendment to the U.S. Constitution. Courts have identified exceptions to this rule, however, when police have probable cause to believe that a search will yield evidence of a crime, and "exigent circumstances" make it likely that delaying the search to obtain a warrant would result in the loss or destruction of the evidence. Many states, including Texas, have also adopted an exception to the "exigent circumstances" requirement, known as the "automobile exception." Pennsylvania became the most recent state to adopt the automobile exception, in Pennsylvania v. Gary, No. 26 EAP 2012, slip op. (Pa., Apr. 29, 2014).

The defendant in Gary was convicted of drug possession after police found about two pounds of marijuana during a search of his vehicle. Police claimed that they stopped the defendant because they believed that his tinted windows violated the state Motor Vehicle Code. Upon approaching the vehicle, the officers claimed to smell marijuana. They asked "if there was anything in his vehicle that the officers need to know about," Gary, slip op. at 2 (quotations omitted), and he reportedly admitted that he had some "weed." They removed the defendant from the vehicle and found the marijuana under the front hood.

The defendant moved to suppress the evidence obtained from the search. The trial court denied the motion, holding that the police had both probable cause and exigent circumstances, in part because the defendant was not technically under arrest and could have left with the contraband. The appellate court reversed the court's order, finding that because the defendant was in police custody, there was no "imperative need for prompt police action." Id. at 4, quoting Pa. v. Gary, 29 A.3d 804, 808 (Pa. Super. 2011). Prosecutors appealed to the state Supreme Court.

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Police Need a Warrant to Search Cell Phones During an Arrest, Supreme Court Rules

July 28, 2014

Two_Cell_Phones_2.pngPolice must obtain a warrant in order to search digital information stored on a suspect's cell phone, according to a recent ruling by the U.S. Supreme Court in Riley v. California, Nos. 13-132, 13-212, slip op. (Sup. Ct., Jun. 25, 2014). The court combined two cases in its decision, both of which involved similar facts but contradictory lower court rulings. The Supreme Court proceedings received media attention because of statements by the justices indicating a wide range of perceptions of mobile phone technology, and how it is commonly used in our society.

Both underlying cases involve warrantless searches of cell phones. The first case, Riley v. California, involved a traffic stop for allegedly expired registration tags. The officer impounded the defendant's car upon learning that his driver's license was suspended, and an inventory search of the vehicle led to the defendant's arrest for firearm possession. An officer claimed to have found gang-related items on the defendant's person. The officer and a detective searched his phone and found text messages and media files allegedly related to gang activity, including a photo of the defendant standing next to a car believed to have been involved in an earlier shooting. The defendant was charged with and convicted of several offenses related to the shooting, based in part on the evidence found on the cell phone. The trial court denied a motion to suppress, and the convictions were upheld on appeal.

The second case, United States v. Wurie, began with an arrest after police surveillance observed the defendant allegedly making a drug sale. At the police station, officers noticed that the defendant's phone was receiving multiple calls. They looked at the phone's call log and traced the incoming phone number using an online directory. They went to the address, where they observed a woman who resembled the woman in the cell phone's background photo. They obtained a search warrant for the apartment and seized drugs, drug paraphernalia, and weapons from the residence. The trial court denied the defendant's motion to suppress, but the First Circuit Court of Appeals reversed the ruling and vacated the conviction, holding that the warrantless search of the cell phone violated the Fourth Amendment.

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Clemency, Sentencing Reforms Offer Hope to Thousands of Nonviolent Drug Offenders Currently in Prison

July 23, 2014

wire-mesh-58333_640.jpgTwo recent administrative actions could lead to early release for thousands of people currently serving prison sentences for nonviolent drug offenses. Drug laws in the U.S. have grown--some might say mutated--to the point that people can receive lengthy sentences for seemingly minor offenses. Recent actions by the Department of Justice (DOJ) and the U.S. Sentencing Commission (USSC) are aimed at remedying some of the injustices that occur as a result of "mandatory minimum" laws, "three strikes" laws, and others. The DOJ announced in April that it has expanded its criteria for clemency requests, by which inmates may ask the White House to commute their sentences or issue a pardon. The USSC voted in July to approve retroactive sentence reductions for certain drug offenders.

The USSC, in its press release (PDF file) announcing its rule changes, estimates that the current federal prison population exceeds the capacity of the Federal Bureau of Prisons by about thirty-two percent. The DOJ's Bureau of Justice Statistics determined that, as of the end of 2012, about 6.94 million people were under the supervision of a state or federal adult correctional system, either as inmates, parolees, or probationers. The total prison population at that time was about 2.3 million, with the majority of inmates incarcerated in state prisons and 217,800 in federal prisons. In August 2013, Attorney General Eric Holder announced the DOJ's "Smart on Crime" program, which acknowledges that levels of incarceration in the U.S. are "ineffective and unsustainable." The DOJ's clemency reforms are part of this program, and the USSC's rule changes also support the program's goals.

By a unanimous vote on July 18, 2014, the USSC approved retroactive sentencing reductions for federal drug offenses. It had previously voted in April 2014 to reduce base offense levels in the the Drug Sentencing Table, which is found in § 2D1.1(c) of the USSC Guidelines Manual, for all future drug cases. The vote in July allows these reductions to apply retroactively, meaning that people who are currently incarcerated for federal drug crimes may petition to have their sentence reduced to fit the revised guidelines. Any reduced sentence approved by a judge cannot take effect until November 1, 2015.

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State of Texas Seizes Mormon Sect's West Texas Ranch in Forfeiture Case

July 14, 2014

FLDS_Eldorado_hi.jpgTexas Department of Public Safety (DPS) officers took possession of a 1,700-acre property in west Texas, known as the Yearning for Zion (YFZ) Ranch, in April 2014, about three months after a state judge ruled in the state's favor in a forfeiture action that it brought in 2012. The ranch was owned by members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), a sect that broke off from the Mormon Church. Law enforcement raided the property in 2008 amid allegations of child abuse, leading to several criminal prosecutions and hundreds of child welfare cases. The state's forfeiture action claimed that the use of the ranch in the commission of various criminal offenses rendered it "contraband" under state law.

In March 2008, a person claiming to be a 16-year-old girl called a child protective services hotline. She said that she lived at the YFZ ranch, that she was married, and that her husband had beaten and raped her. Authorities obtained a warrant and searched the ranch on April 3, 2008. The following day, Child Protective Services (CPS) workers removed 167 children from the property. By Tuesday, April 8, 534 women and children had either left YFZ Ranch voluntarily or been removed by CPS.

Law enforcement and child protection authorities alleged that members of the FLDS church were grooming girls to marry older men at a young age. Eventually several men would either be convicted of or plead no contest to sexual assault-related charges. FLDS leader Warren Jeffs was convicted of sexual assault and aggravated sexual assault of children in 2011 and sentenced to life imprisonment plus 20 years. In May 2008, a Texas appellate court ruled that the seizure of almost 500 children by CPS violated state law. In re Steed, No. 03-08-00235-CV, slip op. (Tex. App.--Austin 2008). The Texas Supreme Court denied the state's petition for review. In re Tex. Dept. of Family Protec. Serv., 255 S.W.3d 613 (Tex. 2008).

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How a Man Got Life in Prison for Letting a Friend Borrow His Car

July 3, 2014

Jakub_Schikaneder_-_Murder_in_the_House (1).JPGA man in Florida is serving the seventh year of a life sentence for a murder that was committed while he was asleep in his bed a mile and a half away. He was charged with murder because he loaned his car to someone who, prosecutors alleged, he knew intended to use it to commit a burglary with the likelihood of violence. The "felony murder" rule allows a murder charge against someone involved in another felony that resulted in someone's death. It is part of a broader legal concept of criminal liability for other people's actions, known as the "law of parties" in Texas. According to The Nation, every country with a legal system based on English common law has abolished the felony murder rule except for the U.S. In Texas, the law of parties remains an important feature of the criminal justice system.

Ryan Holle was convicted of first-degree murder in the death of an 18-year-old woman in Pensacola, Florida in March 2003. Prosecutors alleged that he loaned his car to his roommate and then went to bed. While he was asleep, the roommate and several other people drove to a house, where they intended to break in and steal marijuana from a safe. During the burglary, a woman in the house was killed.

The people directly involved in the burglary were charged with first-degree murder, burglary, and robbery. Prosecutors also charged Holle, who had reportedly made statements to police that he had heard his roommate and others talking about stealing the safe from the house and the possibility of violence. At trial, the prosecutor argued that Holle's car was essential to the crime, that Holle knew what they intended to do, and that he loaned them his car for that purpose. Holle argued that he did not know why his roommate wanted the car, and that he had loaned the car to him many times before without incident. The jury convicted Holle of murder and sentenced him to life imprisonment without the possibility of parole.

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Use of Facial Recognition Software and Other Biometric Technologies by Police Raise Fourth Amendment, Privacy Concerns

June 26, 2014

biometrics-154660_640.pngSeattle, Washington recently became yet another American city to obtain facial recognition software (FRS) for its police force. This type of software, along with other types of biometric technology, analyzes video footage and still images of people and compares them to databases of individuals known to law enforcement. The impact on privacy and Fourth Amendment rights is far from clear. Some recent court cases illustrate some potential concerns, and privacy advocates have expressed concerns regarding misuse and abuse of the technology.

FRS is just one type of technology in the broader category of biometrics, which can identify individuals based on a wide range of unique characteristics like DNA, fingerprints, retinas, or voice patterns. FRS measures certain distances on people's faces, such as from the tip of the nose to the chin. It then compares these measurements to databases of photographs. A spokesperson for the Seattle Police Department says that their FRS will use a database of mugshots.

Government agencies and private corporations are amassing ever-larger databases of biometric data. The U.S. State Department has what may be the largest such database in the world, with over 75 million photographs of people. The massive amount of information made available to law enforcement makes abuse, such as "fishing expeditions" that randomly select unknowing individuals for scrutiny, seem almost inevitable. Seattle has already been the site of a large-scale program intended to analyze surveillance footage outside of the context of any specific criminal investigation.

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Police Department Accused of Entrapment in Drug Sting Involving Autistic Teenager

June 20, 2014

300px-Arrest.svg.pngA school district and police department have been the subject of widespread criticism because of a drug sting at a high school that resulted in multiple arrests. One of the arrested students, Jesse Snodgrass, is autistic, and states that an undercover officer posing as a student entrapped him into obtaining drugs. The case may seem like something out of a movie, but it is a familiar reality in schools around the country. Entrapment, in which a law enforcement officer induces someone to engage in illegal activity, is not uncommon as a tactic in undercover drug investigations.

Extensive reporting in the Los Angeles Times and Rolling Stone detail how a student named Dan at Chaparral High School in Temecula, California befriended Snodgrass in 2012. The 17-year-old Snodgrass had recently transferred to the school and had difficulty making friends because of his condition. Dan began asking Snodgrass to get him some marijuana, sending him dozens of text messages with increasing pressure. Snodgrass finally agreed to buy less than a gram of marijuana with money Dan had given him. On the morning of December 11, 2012, deputies from the Riverside County Sheriff's Department arrested Snodgrass in class. "Dan" was actually an undercover police officer who was part of a sting operation that resulted in the arrest of 22 students at two Temecula high schools.

Snodgrass was expelled from Chaparral High School, but a state administrative law judge overturned that decision, holding that his actions were a "manifestation of his disability." Matter of Parent o/b/o Student, No. 2013010255, exp. dec. at 18 (Cal. OAH, Mar. 8, 2013). A judge dismissed the criminal case against Snodgrass six months after his arrest with no charges filed.

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Cyber Crime Investigations Often Assisted by Incorrect Use of Anonymizing Technology

June 11, 2014

Tor-logo-2011-flat.svg.pngTools that enable internet users to "anonymize," or conceal their online identities, have benefitted many people, such as activists fearing government persecution. It has also enabled people engaging in illegal online activity. People may wish to keep their online identities private out of genuine concern for their own safety, or out of a belief that what they do online is simply no one else's business. Efforts to investigate and track allegedly illegal online activities, however, often threaten to infringe on everyone's privacy rights. Law enforcement has had little success in cracking anonymizing technology, but ordinary human errors have assisted them in many cases by allowing them to connect anonymous activity to specific suspects. As The Daily Dot put it, the users themselves might be anonymizing technology's only "glaring weakness."

A software package known as Tor is one of the most well-known and widely-used anonymizing technologies available today. Its name is short for "The Onion Router," which refers to the use of multiple network nodes and encryption levels, sort of like the layers of an onion, to conceal the source of online communications. While a normal web browser sends and receives data along a relatively direct route, Tor uses a global network of computers and routers to transmit data along a winding, encrypted path. The Tor Project, a nonprofit organization that makes the software available for free, was originally funded by the U.S. military and still receives funding from the federal government.

The National Security Agency (NSA) has reportedly tried to "de-anonymize" Tor, but has not had any success. While it can reveal the identities of small numbers of users through "manual analysis," it has not come close to being able to de-anonymize all of Tor's users at once. Perhaps most importantly from a privacy standpoint, it cannot de-anonymize any one specific user, such as in response to a criminal investigation. Statutes regarding cybercrime require the state to prove beyond a reasonable doubt that a defendant engaged in certain acts. Investigators might try to establish these elements by showing that specific communications originated from a defendant's computer's IP address, or that a defendant was logged into their user account at the time certain acts occurred.

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Laboratory Allegedly Mishandles DWI Blood Samples, Calling Multiple Cases Into Question

May 30, 2014

3571573765_ab13f8d0ef_z.jpgA private laboratory testing company contracted by Texas prosecutors reportedly mishandled paperwork related to blood samples intended for use in driving while intoxicated (DWI) cases. The extent of the company's alleged error remains unknown, but it has prompted the district attorney's office to state that the samples may have to be re-tested. Blood samples are used in DWI cases to establish the concentration of alcohol in a defendant's bloodstream, known as blood alcohol content (BAC). The statute defining the offense of DWI does not require BAC evidence; however, it is generally the simplest way for the state to prove intoxication. Compromised blood samples could seriously hinder the state's prosecution of many of the affected DWI cases.

The Bexar County District Attorney's Office, which handles criminal cases in San Antonio and surrounding areas, contracts with a company in the Dallas/Fort Worth area to test blood samples taken in DWI cases. In approximately mid-May 2014, the office reportedly received a letter from the lab stating that "some paperwork was mishandled." The office has not publicly stated exactly how many cases were affected, or exactly how, but news media have reported that the lab fired an analyst for multiple paperwork errors, including one incident involving about 350 incorrectly-labeled blood samples. The lab is reportedly conducting an internal investigation.

The DA's office was reportedly receiving test results containing caveats from the lab that they could not say for certain which sample produced the results. Other documents reportedly referenced contaminated lab equipment, although the DA's office has stated that they do not believe any blood samples were contaminated. Defendants currently involved in DWI cases in San Antonio, along with their advocates, are not very reassured by the DA's statements.

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