FUROR ERUPTS OVER DA'S NEW DRUG-TESTING POLICY

By Juan Montoya
A new policy put into place by the Cameron County District Attorney's Office in  late August that requires defendants placed in its Pre-Trial Diversion program to report 365 days by phone and may result in them being required to undergo more costly urinalysis testing up to three times a week has drawn the ire of the defense attorney community.
Only first-time offenders are allowed into the PTD program and are charged a $250 fee by the DA's Office.
When he entered office four years ago, Cameron County D.A, Luis V. Saenz suspended the PTD program saying his predecessor Armando Villalobos had turned it into a money-making scheme which had allowed defendants who didn't qualify to enter it.
This August 31, Saenz initiated the new policy for first-time offenders under the PTD program that will hike the cost of each test from $5 to $17 per test. Reportedly, about $8 of the additional cost will go to the DA's Office.
The new company introduced by the DA's Office is called Avertest and its offices are located next to Gomez Sheet Metal and  Roofing on Tyler Street across the street from the county parking lot.
The company is headquartered in Richmond, Va.
Local attorneys with clients in the program have charged that the new requirements break the PTR contract their clients signed with the the DA's Office. They charge that having their clients report daily, including weekends and holidays, and making them come in from their jobs to take the test places an undue burden on the poor and could result in the loss of their jobs to others.
Under the new policy, attorneys are required to notify clients that are participating in the PTD program at their own expense and to have them fill out new forms acknowledging the new requirements. They were also required to inform their clients of an orientation meeting where the new rules were explained by Avertest and DA representatives.
One attorney reported that his client had told him he was forced to strip and make a 360-degree turn before a testing supervisor before he gave his sample.
A further complication seems to have arisen in that the new policy has never been approved by the commissioners court although the County's Board of Judges signed off on the practice.
Asst. DA Rene Garza, who has been the front man for Saenz in the implementation of the new requirements for participants, defended the new requirements saying that the defendants knew what they were getting into and had been granted the "privilege" of participating in the PTD program.
"I would never attempt to judge your powers of persuasion while you negotiated an agreement with the prosecutor who has chosen to honor your client with the privilege of a Pre-Trial Diversion Agreement," Garza replied to an attorney questioning the new requirements. "Those negotiations are left entirely in your capable and diligent hands."

Another attorney said her client, a single mother, was being subjected to unfair financial burdens under the DA's new rules for testing.

"This is crazy because I have a client on PTD who has already paid $17.50 three (3) times this month alone," she said. "This comes out to $52.50 halfway through this month. She has yet to pay the balance of $720.00 by the end of this month. She has been on PTD since June 30th and has
completed almost everything except community service hours. Also, she has been having to call daily since August 31, 2015, the day of notice to all. She is barely working part time and she is a single Mom. These conditions are setting everyone up for failure!!!"

Garza defended the DA's new testing policies saying that Avertest uses a proprietary software program that determines who will be tested. He said that in the past, probation officers tested defendants in unsanitary conditions that could have produced legally questionable results.

"The randomness of a computer picking a name for a person to submit a sample is a different action from the frequency of testing, unless that frequency number is zero, 1, or depending on the month 28, 30 or 31..not including the variations of leap years, leap seconds, the Spring forward or Fall back of an hour for daylight savings time or the end of time and existence as I know it," he replied to another query questioning the frequency and randomness of the testing.

Another attorney was more blunt.

"So which is it?" he asked Garza. "Is it completely random per their super secret proprietary random name out of a hat program, or does the probation officer have latitude in the frequency of testing? It can't be both," he charged.

"If the latter, what assurances do we have that the company coming down from Virginia to profit from this arrangement will not be able to influence how many times defendants are tested? Since, you know, they make more money by forcing this garbage down the throats of FIRST TIME OFFENDERS here in our fair County?"

Another lawyer was even more to the point:

"Come on, Rene. I know for a fact you're not that dumb," he answered. "What shocks me is that you think we are. I can only assume you are feeding us the same bullshit sales pitch Avertest prepares for all its clients. 

"THE PRIMARY MOTIVATION OF AVERTEST IS TO MAKE A PROFIT. YOU HAVE 

ADMITTED YOUR "RANDOM" NAME GENERATOR CAN BE INFLUENCED BY THE

PROBATION OFFICER. THAT IS CALLED A LIMITING PARAMETER, AND IS

NECESSARILY INCONSISTENT WITH THE RANDOMNESS YOU CLAIM. HOW HARD

IS THIS TO UNDERSTAND?

"It's clear we'll just have to duke this out case by case. But if this DA's office insists on outsourcing the County's criminal justice responsibilities to private companies who profit by imposing these types of hardships on FIRST TIME OFFENDERS, including private prisons or probation companies, to the detriment and erosion of the civil rights of the citizens of Cameron County, then this defense bar must do what it can to see that a change in leadership occurs. It is our professional, ethical and moral responsibility to do so."

End Part 1

Next: Did DA's Office overstep its authority by skirting the approval of the Cameron County Commissioner Court and the legislative process?