XVII. Breath Test

A.  IMPLIED CONSENT LAW

Rodriguez v. State,  631 S.W.2d 515 (Tex.Crim.App. 1982).

Statutory presumption of consent to breath test.

Graham v. State, 710 S.W.2d 588 (Tex.Crim.App. 1986).

"Implied consent law" does not place any mandatory duty on the State to administer a chemical test.

Growe v. State, 675 S.W.2d 564 (Tex.App.—Houston [14th Dist.] 1984, no pet.).

Motorist's implied consent is not subject to motorist’s electing to contact an attorney.

B.  BREATH TEST PREDICATE

Harrell v. State, 725 S.W.2d 208 (Tex.Crim.App. 1986).

PREDICATE:

1)   proper use of reference sample.

2)  existence of periodic supervision over machine and operation by one who   understands scientific theory of machine.

3)  proof of result of test by witness or witnesses qualified to translate and interpret such result so as to eliminate hearsay.

Kercho v. State, 948 S.W.2d 34 (Tex.App.—Houston [14th Dist.] 1997, pet. ref’d).

The testimony of an Intoxilyzer operator and a technical supervisor to the effect that the instrument was periodically tested to ensure that it was working properly, that a test sample run prior to appellant’s Intoxilyzer tests demonstrated the machine was functioning properly at that time, that the operator had been trained in the operation of the Intoxilyzer machine, and that the technical supervisor, who also testified about the theory of the test, was certified by the Department of Public Safety as a technical supervisor, was sufficient predicate to admit the results of the Intoxilyzer test.

C.  INSTRUMENT CERTIFICATION

1.  NEW INSTRUMENT NEED NOT BE RE-CERTIFIED

State v. Krager, 810 S.W.2d 450 (Tex.App.—San Antonio 1991, pet. ref’d).

When police agency substitutes one approved brand of breath testing equipment for another, it was not necessary that there be a reapplication for certification of entire breath testing program.

2.  CERTIFICATION AND MAINTENANCE RECORDS ADMISSIBLE

Ponce v. State, 828 S.W.2d 50 (Tex.App.—Houston [1st Dist.] 1991, pet. ref’d).

Reports and test records which reflected that the Intoxilyzer machine used to test appellant’s alcohol concentration was working properly were admissible under Rule 803(6) and are not matters observed by law enforcement personnel.

D.  LIMITED RIGHT TO BLOOD TEST

1.  FAILURE TO ADVISE OF RIGHT TO BLOOD TEST

Maxwell v. State, 253 S.W.3d 309 (Tex.App.—Fort Worth 2008).

Defendant argued that breath test was inadmissible because he was not afforded “his right to contact a physician to obtain a specimen of his blood.”  In overruling this point the Court points out that Section (c) of 724.019 provides that a peace officer is not required to transport someone in custody to a facility for testing, and further, section (d) provides that the “failure or inability to obtain an additional specimen or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen taken” by the officer originally. 

McKinnon v. State, 709 S.W.2d 805 (Tex.App.—Fort Worth 1986).

State v. Lyons, 820 S.W.2d 46 (Tex.App.—Fort Worth 1991, no pet.).

Officer has no duty to advise defendant of right to blood test & failure to do so will not affect admissibility of breath test.

2.  NO RIGHT TO BLOOD TEST IN LIEU OF BREATH TEST

Aguirre v. State, 948 S.W.2d 377 (Tex.App.—Houston [14th Dist.] 1997, pet. ref’d).

Drapkin v. State, 781 S.W.2d 710 (Tex.App.—Texarkana 1989, pet. ref’d).

Statute does not give the suspect the right to a blood test instead of a breath test.

3.  OFFICERS CHOICE WHETHER BREATH OR BLOOD

State v. Neel, 808 S.W.2d 575 (Tex.App.—Tyler 1991, no pet.).

A police officer arresting a suspect for driving while intoxicated is entitled to choose between asking the suspect to take a breath test or a blood test, both of which are authorized by statute.  The officer need not track the statutory language and ask the defendant to take a breath or blood test.  

E.  MIRANDA WARNINGS

1.  NEED NOT GIVE PRIOR TO REQUEST FOR BREATH SAMPLE

Parks v. State, 666 S.W.2d 597 (Tex.App.—Houston [1st Dist.] 1984, no pet.).

Miranda warnings need not be given to suspect prior to breath test request.

2.  INVOCATION OF RIGHTS WILL NOT EXCLUDE REFUSAL

Garner v. State, 779 S.W.2d 498 (Tex.App.—Fort Worth 1989) pet. ref'd per curiam, 785 S.W.2d 158 (Tex.Crim.App. 1990).

BTR admissible even if after right to counsel is invoked.

Jamail v. State, 787 S.W.2d 380 (Tex.Crim.App. 1990).

Mixing request for breath sample with warnings during custodial interrogation such that defendant perceived he had the right to consult an attorney will not negate ability to show refusal at trial.

3.  NO RIGHT TO COUNSEL PRIOR TO DECIDING WHETHER TO GIVE  SAMPLE

Forte v. State, 759 S.W.2d 128 (Tex.Crim.App. 1988).

De Mangin v. State, 700 S.W.2d 329 (Tex.App.—Houston [1st Dist] 1985) aff’d. 787 S.W.2d 956 (Tex.Crim.App. 1990).

F.  BREATH AMPULES NEED NOT BE PRESERVED

Turpin v. State, 606 S.W.2d 907 (Tex.Crim.App. 1980).

Breath ampules need not be preserved.  Defendant's inability to obtain blood test within two hours did not render breath test results inadmissible.

G.  DIC-23 & DIC-24 WARNINGS

1.  REQUIREMENT THEY BE GIVEN IN WRITING RELATES ONLY TO ADMISSIBILITY OF REFUSALS

Nebes v. State, 743 S.W.2d 729 (Tex.App.—Houston [1st Dist.] 1987, no pet.).

Rule that DIC-24 warnings be given in writing does not apply to case where breath test was given.  This rule only affects admissibility of breath test “refusals.”

2.  FAILURE TO GIVE WARNINGS IN WRITING NOT NECESSARILY FATAL

Anderson v. State, No. 2-05-169-CR, 2006 WL 744272 (Tex.App.—Fort Worth 2006) (not designated for publication).

The fact that the arresting officer gives an oral warning but fails to give a written warning before requesting a breath test does not, by itself, render the results of the test inadmissible.  There must be some showing of a causal connection between the failure to give the written warning and the defendant’s refusal to submit to the breath test to render the refusal inadmissible.  No such connection was shown in this case and refusal was held admissible.

Martinez v. State, No. 08-03-00240-CR, 2005 WL 787075 (Tex.App.—El Paso 2005).

There was a dispute as to whether the defendant was read the DIC-14 warnings before being asked to give a breath sample.  The defendant refused to give a sample and based on the conflict in testimony wanted a charge under Article 38.23 CCP which would allow the jury to disregard the refusal as evidence if they found the warnings were not given.  In rejecting that argument, the Court held that defendant had failed to meet the burden of showing a causal connection between any improper warning and the decision whether to submit to a breath test.  For that reason, the requested charge was properly denied

Kelly v. State, No. 09-12-00074-CR, 2013 WL 5273364 (Tex.App.—Beaumont 2013). 

Schaum v. State, 833 S.W.2d 644 (Tex.App.—Dallas 1992, no pet.).

Giving only oral and not “written” warnings to defendant does not always mean evidence of refusal will be inadmissible.  It will be subject to a “harmless error” analysis.  In this case, held to be “harmless” and evidence of refusal was properly admitted.

Lane v. State, 951 S.W.2d 242 (Tex.App.—Austin 1997, no pet.).

Giving only oral and not written warnings to defendant does not render breath test result  inadmissible.

3.  WRITTEN WARNINGS NEED NOT BE PROVIDED PRIOR TO REFUSAL

Texas Department of Public Safety v. Jauregui, 176 S.W.3d 846, (Tex.App.,—Houston [1 Dist.], 2005, rev. denied).

O’Keefe v. State, 981 S.W.2d 872 (Tex.App.—Houston [1st Dist] 1998, no pet.).

Rowland v. State, 983 S.W.2d 58 (Tex.App.—Houston (1st Dist.) 1998, pet. ref’d).

Jessup v. State, 935 S.W.2d 508 (Tex.App.—Houston [14th Dist.] 1996, pet. ref’d).

No harm shown where defendant was not given DIC-24 statutory warnings in writing until after refusal.

4.  THAT ARREST PRECEDE READING OF DIC-24 = FLEXIBLE

Nottingham v. State, 908 S.W.2d 585 (Tex.App.—Austin 1995, no pet.).

Though defendant was not told he was under arrest prior to DIC-24 being read to him, the reading of the DIC-24 and circumstances concerning the reading were sufficient to justify a finding that the arrest requirement was met even though officer testifies that he did not think defendant was under arrest at the time.

See also Washburn v. State, 235 S.W.3d 346, (Tex.App.Texarkana 2007, no pet.).

5.  DIC-24 NOTICE IN WRITING REQUIREMENT SATISFIED BY MAKING WRITTEN COPY “AVAILABLE”

Texas Department of Public Safety v. Latimer, 939 S.W.2d 240 (Tex.App.—Austin 1997, no pet.).

Written notice requirement as applied to request for blood sample complied with by officer’s leaving the written copy with the nurse to give the defendant the following day.

6.  OFFICER WHO READS DIC-24 & REQUESTS SAMPLE NEED NOT BE ARRESTING OFFICER

Texas Dept. of Public Safety v. Walter, 979 S.W.2d 22 (Tex.App.—Houston [14th Dist.] 1998, no pet.).

McBride v. State, 946 S.W.2d 100 (Tex.App.—Texarkana 1997, pet. ref’d).

For officer to request that allegedly intoxicated driver provide specimen of breath or blood, it is not necessary that same officer observe driver, arrest driver, transport driver, and inform driver of consequences of refusal to take test.

7.  CIVILIAN READING WARNINGS NOT NECESSARILY BASIS FOR EXCLUSION

Harrison v. State, 766 S.W.2d 600 (Tex.App.—Fort Worth 1989, pet. ref’d).

A peace officer, rather than a civilian breath test operator, must give a defendant the statutory warning on refusing alcohol tests, but the fact that a civilian gives the statutory warning on alcohol tests does not render a defendant’s refusal to take the test automatically inadmissible.  Before a trial court is obligated to exclude the evidence, the defendant must show a causal connection between his refusal to give a breath specimen and the fact that a civilian gave the warning.

8.  DIC-24 - WORDING .10 OR GREATER - IS CORRECT - THOUGH IT’S NOT TIED TO DRIVING  (Note: At the time these cases came down, .10 was the per se standard.)

Texas Dept. of Public Safety v. Benoit, 994 S.W.2d 212 (Tex.App.—Corpus Christi 1999, pet. denied).

McClain v. State, 984 S.W.2d 700 (Tex.App.—Texarkana 1998, pet. ref’d).

Shirley v. Texas Department of Public Safety, 974 S.W.2d 321 (Tex.App.—San Antonio 1998, no pet.).

Texas Department of Public Safety v. Butler, 960 S.W.2d 375 (Tex.App.—Houston [14th Dist.]  1998, no pet.).

Martin v. Department of Public Safety, 964 S.W.2d 772 (Tex.App.—Austin 1998, no pet.).

The following language on the DIC-24: “If you give the specimen and analysis shows that you have an alcohol concentration of 0.10 or more, your license, permit or privilege to operate a motor vehicle will be suspended...” is not defective for not stating that the concentration must be 0.10 or more “at the time of driving.”  It is clear that it was not the intent of the legislature to require a test to show that the defendant was 0.10 at the time of driving for a license suspension to be called for.  Thus the statute should not, and does not, contain the wording “at the time of driving” because it does not pertain to whether the arrestee was driving while intoxicated.

9.  DIC-24 IN SPANISH

(a) ERROR IN WRITTEN TRANSLATION DID NOT MAKE CONSENT INVALID

Gonzalez v. State, 967 S.W.2d 457 (Tex.App.—Fort Worth 1998, no pet.).

Complaint was that the Spanish version of the warning translates to “if you refuse the analysis that action can be used against you in the future.”  The court rejects the claim and finds that the Spanish-language translation of the warning was not required to track the statutory language verbatim and that the warning given substantially complied with the statutory mandate.

(b) FAILURE TO TRANSLATE SPANISH AUDIO TAPE READING OF WARNING INTO ENGLISH AT TRIAL THOUGH ERROR WAS HARMLESS

Montoya v. State, 2012 WL 1868620 (Tex.App.—Fort Worth 2012).

At the jail the officer handed the defendant a Spanish version of the DIC-24 and played an audio tape of an officer reading those warnings in Spanish. At trial the Spanish audio tape was played to the jury but was not translated. The Court held that "even assuming" the admission of the warnings without translation was error, there was nothing in the record to show the defendant was harmed as it did not have a "substantial or injurious effect on the jury's verdict." 

10.  COMMERCIAL DRIVER’S LICENSE WARNINGS

(a)  NEED TO BE GIVEN

Texas Department of Public Safety v. Thomas, 985 S.W.2d 567 (Tex.App.—Waco 1998, no pet.).

Defendant who was arrested for DWI held a commercial driver’s license that allowed him to operate both commercial and non-commercial motor vehicles.  After his arrest he received the warnings required by Chapter 724 (applying to non-commercial drivers) and refused to give a breath sample.  He challenged his subsequent license suspension arguing that because he was not warned of the consequences of his refusal to give a specimen under 724 and Section 522 (regarding commercial licenses), his refusal was not knowing and voluntary.  Court of Appeals found that the failure to warn him of both consequences rendered his refusal involuntary.

(b)  DON’T NEED TO BE GIVEN

Texas Department of Public Safety v.  McGlaun, 51 S.W.3d 776 (Tex.App.—Fort Worth 2001, pet. denied).

The issue is whether failure to warn the defendant of the consequences of his refusal to give a breath test as to his commercial license means his license should not be suspended.  The defendant was not operating a commercial vehicle when he was stopped.  The Court held that the Defendant was properly warned and his license should be suspended.  Specifically, the Court held that 724.015 does not distinguish between commercial and non-commercial vehicles, so it applies to all vehicles.  The fact that different consequences are authorized by more than one applicable

statute does not reduce the notice given to the defendant of the consequences provided for each.  The Court notes the contrary holding in Thomas and declines to follow that opinion.

See also Texas Department of Public Safety v. Struve, 79 S.W.3d 796 (Tex.App.—Corpus Christi, 2002, pet. denied).

11.  DIC 23 & DIC 24 DOCUMENTS ARE NOT HEARSAY

Ford v. State, No. 08-11-00307-CR, 2014 WL 823409 (Tex.App.—El Paso 2014).

This case involved a DWI arrest where Defendant was transported to the jail and read the DIC-24 by an officer that the State did not call to testify at trial as he had subsequently been convicted of a felony. They offered the DIC-24 into evidence without calling the officer who read it and Defendant objected on confrontational grounds. On appeal the Court held that the forms were non-testimonial because they contained only the recitation of the statutory warnings and were therefore properly admitted.

Block v. State, No. 14-95-00227-CR, 1997 WL 530767 (Tex.App.—Houston [14th Dist.] 1997 (Not designated for publication).

DIC 24 is not hearsay as the warnings form is not offered to prove the truth of the matter asserted in those warnings, but rather is offered to show that the warnings were given to the defendant.

Texas Department of Public Safety v. Mitchell, No. 2-01-398-CV, 2003 WL 1904035 (Tex.App.—Fort Worth 2003).

DIC 23 and DIC 24 were properly admitted under the public records exception to the hearsay rule 803(8).

12.  DEFENDANT DEAF - FAILED TO UNDERSTAND HE COULD REFUSE - NO PROBLEM WHEN SAMPLE GIVEN 

State v. Roades, No. 07-11-0077-CR, 2012 WL 6163107 (Tex.App.—Amarillo 2012).

This case involved a Defendant who was deaf and the issue of whether he voluntarily agreed to take the breath test, or to put it another way, whether his understanding of his options was hampered by his being deaf. Even though the officer testified that prior to the test, he read the Statutory Warning form to the Defendant and placed a copy of it in front of him, the Trial Court granted the motion to suppress finding that it did not believe the Defendant understood he had an option of refusing - take the breath test or refuse to take it. In reversing the Trial Court, the Court of Appeals found that although evidence must show that warnings provided in Section 724.015 were given an accused prior to introduction of evidence of a refusal to submit to a breath test, Section 724.015 does not require proof of those warnings as a predicate to the introduction of "voluntarily" taken breath tests. Here there is simply no record evidence that the Defendant submitted to the breath test because of any physical or psychological pressure brought to bear by law enforcement. Because there was an absence of evidence establishing that any improper conduct by a law enforcement officer "caused" or "coerced" Defendant to submit to a breath test, The Court of Appeals found that the Trial Court abused its discretion in granting the motion to suppress. 

13.  FAILURE TO READ "UNDER 21" PORTION OF DIC 24 NOT PRECLUDE ADMISSION OF BT 

State v. Klein, 2010 WL 3611523 (Tex.App.—Waco 2010) (Not designated for publication, pet. ref'd). 

The defendant's consent to a breath test was voluntarily given, despite the police officer's failure to comply with a statutory requirement to orally recite warnings to defendant before obtaining consent for the breath test. In this case the warnings omitted concerned the consequences of refusing or of giving a sample for someone under 21. There was no evidence that the police officer's failure to read the warnings had any impact on her consent, especially since the defendant was provided with the written warnings. 

14.  URINE SAMPLE

(a) MAY BE REQUESTED

Hawkins v. State, 865 S.W.2d 97 (Tex.App.—Corpus Christi 1993, pet. ref'd).

In holding that it was proper for the officer to ask for a urine specimen, the Court points out that the implied consent statute specifically allows a person to consent to any other type of specimen. Police officer may request urine specimen instead of breath or blood, even though statute specifically recognizes only breath and blood tests. 

(b) IS ADMISSIBLE WITHOUT EXPLAINING RIGHT TO REFUSE

Harrison v. State, 205 S.W.3d 549 (Tex.Crim.App. 2006).

Defendant was arrested for DWI and after having the DIC-24 read to her agreed to give a breath sample which showed no alcohol.  She was asked to give blood and agreed as well and was transported to hospital for blood draw.  After five or six somewhat painful attempts to get blood, she was asked if she would give urine instead, and she agreed so as to avoid continuing to be stuck to obtain a blood sample.  The urine sample showed controlled substances, and the defense attacked the urine sample on the basis that the officer did not warn her that she did not have to give a sample and her refusal to give urine would not result in a license suspension.  The Court of Appeals found that the consent to give urine was not voluntary as it was given to avoid the further pain of a blood draw.  The Court of Criminal Appeals found that there was no requirement that any warnings be read before asking for consent to a urine sample and upheld the trial court’s finding that the consent was voluntary.

H.  NOT NECESSARY TO SHOW 210 LITERS OF BREATH

Wagner v. State, 720 S.W.2d 827 (Tex.App.—Texarkana 1986, pet. ref’d).

Not necessary to show that 210 liters of breath were used in the Intoxilyzer test.

I.  BREATH TEST NOT COERCED

1.  EXTRA WARNING REFERRED TO CONSEQUENCES OF PASSING NOT REFUSING 

Bookman v. State, 2008 WL 3112713 (Tex.App.—Waco, 2008).

In holding that the officer’s statement to the defendant regarding the breath test “that if the defendant passed, the officer would let him go,” did make the defendant’s consent involuntary.  In so holding the Court states “Texas appellate courts have uniformly held that consent to a breath test is not rendered involuntary merely because an officer has explained that the subject will be released if he passes the test.”

Hardy v. State, 2005 WL 1845732, No. 13-04-055-CR (Tex.App.—Corpus Christi, Aug. 4, 2005)(not designated for publication).

In response to her question, officer informed the defendant “if she would pass the breath test, she would probably be released.”  In response to the defendant’s assertion on appeal that this violated Erdman, the Court noted that the “statement to appellant falls far short of the officer’s statements found to be coercive in Erdman.”  The Court focused on the fact that the officer did not make any statements about the consequences of appellant’s refusal to take a breath test beyond those listed in Section 724.015 of the Transportation Code.  By merely answering appellant’s question, Officer Trujillo did not warn appellant that dire consequences would follow if she refused to take the breath test.

Ness v. State, 152 S.W.3d 759 (Tex.App.—Houston [1 District] December 2, 2004, pet. ref’d.).

Police officer’s statement to defendant at the scene of the arrest that “pending outcome of breath test, defendant would be detained” did not render defendant’s submission to breath test coerced, where officer did not make any statements about consequences of refusal to take test beyond those listed in statute, and he did not warn defendant that dire consequences would follow if he refused to take breath test.

Urquhart v. State, 128 S.W.3d 701 (Tex.App.—El Paso 2003, reh. overruled, pet. ref’d).

Statement by officer to defendant that if he passed the breath test he would be released was alleged to be coercive and should result in suppression of his breath test results.  Court found that there was no causal connection between the statement and the decision to give a breath sample.

Sandoval v. State 17 S.W.3d 792, (Tex.App.—Austin, 2000, pet. ref’d.).

Suspect asked what would happen if he “passed the (breath) test?”  Officer responded that if suspect failed the test, he would be charged with DWI, but if he passed, the officer would call a relative to come pick up suspect.  Suspect took a breath test.  Court upheld the test distinguishing these facts from Erdman.  It did this by pointing out that Erdman concerned telling a suspect about the extra-statutory consequences of a “refusal” to submit to a breath test while in this case the extra warning dealt with what would happen if he “passed” the test.  The Court further pointed out that there was absence of evidence that the extra warning actually coerced the suspect.

2.  NO EVIDENCE THAT ADDITIONAL WARNING ACTUALLY COERCED DEFENDANT

Texas Department of Public Safety v. Rolfe, 986 S.W.2d 823 (Tex.App.—Austin 1999, no pet.).

Officer admitted (hypothetically) to telling suspect, when asked, that if she refused to give a sample she would be jailed.  Held that consent to breath test was still valid absent any evidence that this additional warning actually coerced suspect into submitting to a breath test.

3.  NO EVIDENCE THAT DEFENDANT RELIED UPON EXTRA WARNING

Ewerokeh v. State, 835 S.W.2d 796 (Tex.App.—Austin 1992, pet. ref’d).

Officer telling defendant "if he failed test he would be jailed," found not to be coercive where there was no evidence that defendant relied on this incorrect statement.

4.  DEFENDANT GAVE SAMPLE, CONSEQUENCES UNDERSTATED

Franco v. State, 82 S.W.3d 425 (Tex.App.—Austin 2002, pet. ref’d).

After being arrested for DWI, the defendant was read the standard Texas Transportation Code Ann. 724.015 admonishments as to the consequences of refusing to give a sample.  He gave a sample and then argues that he should have been read the admonishments under Texas Transportation Code Ann. 522.103(a) as he also holds a commercial drivers license. The commercial consequences of a refusal are harsher than those for non-commercial holders.  Without addressing whether the failure to read him the additional warning was a mistake, the Court holds that he has failed to show he was coerced.  Specifically, the Court holds “(The defendant)......cannot plausibly argue that his decision to take the breath test was induced or coerced by the officer understating the consequences of a refusal.”

SEE also  Curl v. State,199 WL 33757096 (Tex.App.—Corpus Christi1999).

5.  AT MTS IT IS THE DEFENDANT’S BURDEN TO SHOW CONSENT TO GIVE BT WAS NOT VOLUNTARY

State v. Amaya, 221 S.W.3d 797 (Tex.App.—Fort Worth 2007, pdr ref’d).

This involved a claim that the breath test was not voluntary because the warnings were read in English and only the written copy given to the defendant was in Spanish.  The trial judge concluded that because the statutory warning was not read in the Spanish language and because we do not know whether the defendant could read the Spanish warning sheet, we have no way of knowing if the defendant understood, or at least substantially understood, what the officer was telling him.  The trial judge suppressed the breath test results.  The Court of Appeals reversed the trial court, finding it was the defendant’s burden to point to some evidence rebutting the presumption arising from the implied consent statute. This finding--that the evidence did not establish whether defendant could or could not read the Spanish DIC-24 form--required the trial court to overrule the defendant’s motion to suppress.

6.  INSUFFICIENT EVIDENCE OF CAUSAL CONNECTION BETWEEN OFFICER STATEMENT AND CONSENT

Bergner v. State, 2008 WL 4779592 (Tex.App.—Fort Worth 2008).

In this appeal the defendant claimed that her breath test result should have been suppressed because of officer’s statement regarding consequences of refusal.  The defendant when asked for a sample after the warnings were read, said she would give a sample.  While officer was out of the room, she called a friend on her cell, and he told her to refuse.  When she asked officer what would happen if she refused, he told her that she would go to jail if she did not blow.  While conceding that the officer’s statement was of the type that resulted in suppression in Erdman, the Court found that there was no causal connection between the statement and the refusal. Upon cross examination the defendant admitted she already knew that she would go to jail if she refused so the officer’s statement could not have caused the “psychological pressures” that Erdman and the cases that followed were designed to prevent. 

J.  STANDARD FOR COERCION CHANGED - ERDMAN OVERRULED 

Crofton v. State, No. 06-12-00143-CR, 2013 WL 1342543 (Tex.App.—Texarkana 2013).

This case involves the question of whether a Defendant who is told it is a No Refusal weekend, that a warrant will be obtained if he refuses, and who consents thereafter has been coerced into doing so. In denying this the Court points out that the testimony of the State's witnesses was that consent was given voluntarily, and Defendant was provided with a form informing him of his right to refuse consent, but he did not sign the form, and that he had previously been arrested for DWI. Also, there was no suggestion that he was unintelligent about his rights, that the detention was lengthy, that questioning was repetitive, or that he was subjected to physical punishment. For all these reasons, the consent was held to be voluntary.

Bice v. State, No. 13-12-00154-CR, 2013 WL 123709 (Tex.App.—Corpus Christi 2013).

The Defendant was initially given the correct statutory warnings by the officer and subsequently refused consent to give a sample. Thereafter, the officer advised appellant of the consequences of his refusal; however, in doing so, he misstated the statutory language by saying "up to 180 days" instead of "not less than 180 days." In other words, the officer understated the consequences of appellant's refusal. Appellant then consented to provide a breath sample. Although the Defendant changed his mind and agreed to provide a breath sample after the second request, that fact alone - without evidence that the Defendant was pressured physically or psychologically - is insufficient to invalidate consent that was otherwise voluntary. 

Fienen v. State, No. PD-10119-12, 2012 WL 5869401 (Tex.Crim.App. 2012).

This very important case overrules Erdman and its progeny. Calling Erdman's reasoning "confused and flawed," the Court holds that the rules created by that case fail to consider the circumstances surrounding an officer's statements when analyzing the issue of voluntariness. So the fact that a law enforcement officer's answer to a question from a suspect goes outside a mere repetition of the statutory warning will not per se make the Defendant's consent involuntary. The new rule is that a Court should look at the totality of the circumstances in determining voluntariness. Law enforcement is advised it should not misrepresent the law but neither must it simply repeat statutory warnings when asked a question about the implied consent law. In this case it was determined that the Defendant's consent was voluntary.

State v. Serano, 894 S.W.2d 74 (Tex.App.—Houston [14th Dist.] 1995, no pet.).

Where officer told defendant if he passed the breath test he would be released, and if he failed it he would be arrested while defendant was at scene, said statement was coercive even though two hours passed from time of the statement to time of breath test and even though another officer properly admonished defendant prior to the sample's being given. This opinion is implicitly overruled by Fienen v. State, No. PD-10119-12, 2012 WL 5869401 (Tex.Crim.App. 2012).

Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App. 1993).

Officer's incorrectly informing defendant of consequences of refusal to give breath sample will not always = evidence that consent was coerced. Question of voluntariness is a case-by-case question of fact. Court concluded under these facts that officer stating to defendant "if he took the test and passed he would be released, but if he refused he would be charged with DWI" constituted coercion. This opinion is overruled by Fienen v. State, No. PD-10119-12, 2012 WL 5869401 (Tex.Crim.App. 2012).

State v. Sells, 798 S.W.2d 865 (Tex.App.—Austin 1990, no pet.).

Motorist's consent to breath test was not voluntary due to officer's statement that defendant "would automatically be charged and incarcerated" if he refused. This opinion is implicitly overruled by Fienen v. State, No. PD-10119-12, 2012 WL 5869401 (Tex.Crim.App. 2012).

Hall v. State, 649 S.W.2d 627 (Tex.Crim.App. 1983).

Motorist's consent to breath test held not to be voluntary when officer said, "You're automatically convicted of DWI and your license will be suspended if you refuse to give a breath sample." This opinion is implicitly overruled by Fienen v. State, No. PD-10119-12, 2012 WL 5869401 (Tex.Crim.App. 2012). 

K.  BREATH TEST REFUSAL EVIDENCE 

1.  AS EVIDENCE OF GUILT

Mody v. State, 2 S.W.3d 652 (Tex.App.—Houston [14th Dist.] 1999, pet ref’d).

Finley v. State, 809 S.W.2d 909 (Tex.App.—Houston [14th Dist] 1991, pet. ref’d).

Jury can consider BTR as evidence of defendant's guilt.

2.  NO VIOLATION OF 5TH AMENDMENT

Gressett v. State, 669 S.W.2d 748 (Tex.App.—Dallas 1983), aff’d, 723 S.W.2d 695 (Tex.Crim.App. 1986).

Evidence of a defendant’s refusal to submit to blood alcohol test after lawful request by police officer is admissible at trial when intoxication is an issue.

Bass v. State, 723 S.W.2d 687 (Tex.Crim.App. 1986).

In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood test is not an interrogation within the meaning of the Fifth Amendment. 

SEE also  Shepherd v. State, 915 S.W.2d 177 (Tex.App.—Fort Worth 1996,  pet. ref’d).

3.  REASON FOR REFUSAL AND CONDITION OF INSTRUMENT IRRELEVANT

Mody v. State, 2 S.W.3d 652 (Tex.App.—Houston [14th Dist.] 1999, pet ref’d).

Moore v. State, 981 S.W.2d 701 (Tex.App.—Houston [1st Dist.] 1998, pet. ref’d).

Evidence of defendant’s refusal to take a breath test was properly admitted, and State had no preadmittance burden to show that defendant was over .10 at the time of driving, why the defendant refused, or that instrument was accurate.

4.  REFUSAL BASED ON INTOXICATION IS STILL A “REFUSAL”

Malkowsky v. Texas Department of Public Safety, 53 S.W.3d 873 (Tex.App.—Houston [1st Dist.] 2001, pet. denied).

This was an appeal of an ALR hearing where defendant claimed that he did not intentionally refuse to give a sample; he was just too intoxicated to comply.  The undisputed testimony was that the defendant agreed to give a sample and according to the breath test operator was truly trying to do so but was too intoxicated to comply.  Court held that when a person is unable to give a breath sample because of his voluntary intoxication that qualifies as a refusal under 724.032 of the Transportation Code.

5.  INTOXICATION MAY BE PRESUMED FROM BTR

Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. October 31, 2001)

Thomas v. State, 990 S.W.2d 858 (Tex.App.—Dallas 1999, no pet.).

Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App. 1988).

Intoxication is a legitimate deduction from defendant’s refusal to take a breath test.

6. FAILURE TO FOLLOW BREATH TEST INSTRUCTIONS = REFUSAL

Kennedy v. Texas Department of Public Safety,2009 WL 1493802 (Tex.App.—Houston [1st Dist.] 2009).

Texas Department of Public Safety v. Sanchez, 82 S.W.3d 506 (Tex.App.—San Antonio 2002, no pet.).

Repeatedly failing to follow directions in submitting an adequate sample for breath testing constitutes an intentional refusal.  

L.  LATE BREATH TEST - CAN BE SUFFICIENT

1.  LATE TEST NOT CONCLUSIVE BUT IS PROBATIVE

Owen v. State, 905 S.W.2d 434, 437-39 (Tex.App.—Waco 1995, pet. ref’d).

Martin v. State, 724 S.W.2d 135 (Tex.App.—Fort Worth 1987, no pet.).

Late breath test, though not conclusive, is probative when combined with other testimony.

2.  AFTER 1 HOUR & 20 MINUTES

Annis v. State, 578 S.W.2d 406  (Tex.Crim.App. 1979).

Breath test taken 1 hour and 20 minutes after the stop may be sufficient to prove intoxication at the time of stop when coupled with arresting officer's testimony.

3.  AFTER 2 HOURS

Holloway v. State, 698 S.W.2d 745 (Tex.App.—Beaumont 1985, pet. ref’d).

Breath test taken 2 hours after the stop of the defendant may provide sufficient basis to find defendant intoxicated at the time of the accident when coupled with other evidence in an involuntary manslaughter case.

4.  AFTER 2 HOURS & 15 MINUTES

Dorsche v. State, 514 S.W.2d 755 (Tex.Crim.App. 1974).

Breath test taken 2 hours & 15 minutes after the stop may provide sufficient basis for finding defendant over .10 at time of stop.

5.  AFTER 2 HOURS & 30 MINUTES

Verbois v. State, 909 S.W.2d 140 (Tex.App.—Houston [14th Dist] 1995, no pet.).

6.  AFTER 4 HOURS & 30 MINUTES

Douthitt v. State, 127 S.W.3d 327 (Tex.App.—Austin 2004, no pet.).

Results of breath test  administered 5 ½ hours after defendant stopped drinking and 4 ½ hours after accident which resulted in a charge of Intoxication Manslaughter were relevant to show the defendant did not have normal use of his mental or physical faculties at time of accident because of excess alcohol consumption.

7.    AFTER 7 HOURS

Kennemur v. State, 2008 WL 1991730 (Tex.App.—Amarillo 2008).

In this Intoxication Manslaughter case, approximately seven hours after the accident the defendant had a blood-alcohol content (BAC) of .098.  The Court found that his appearance and the blood alcohol test, even though it was taken many hours after the wreck, tended to make it more probable that he was intoxicated at the time of the collision because there had been evidence that he introduced alcohol into his body prior to the accident.

M.  OBSERVATION PERIOD

1.  MORE THAN ONE OFFICER OBSERVATION REQUIREMENT

State v. Melendes, 877 S.W.2d 502 (Tex.App.—San Antonio 1994, pet. ref’d).

Same operator is not required to observe and administer breath test.  Officer who was also a certified operator observed defendant for 15 minutes and then turned defendant over to another operator who administered the test.

2.  NO NEED TO REPEAT ON 2ND TEST

State v. Moya, 877 S.W.2d 504 (Tex.App.—San Antonio 1994, no pet.).

When test is repeated due to intox error message, an additional 15 minute observation period is not necessary. 

3.  NO LONGER NECESSARY TO “OBSERVE” DEFENDANT FOR 15 MINUTES

State v. Reed, 888 S.W.2d 117 (Tex.App.—San Antonio 1994, no pet.).

Subject need not be continuously observed for 15 minutes now that regulations expressly provide that subject need only be in the operator’s continuous presence.

4.  REMAINING IN PRESENCE DOES NOT NECESSARILY REQUIRE OPERATOR BE CONTINUOUSLY IN THE SAME ROOM 

McIntyre v. State, No. 01-11-00821-CR, 2012 WL 5989434 (Tex.App.—Houston [1st Dist] 2012).

The Defendant argued that the breath test should have been suppressed because the intoxilyzer operator walked out of the testing room, breaking his line of sight with the Defendant for a few minutes. The State contends that although the operator left the room, he was in Defendant's "presence" because he was in an adjacent room, the door was open, and he was approximately 5 feet away from the Defendant at the time. The Texas Administrative Code provides that "[a breath test] operator shall remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth. Direct observation is not necessary to ensure the validity or accuracy of the test result [.]" 37 TEX.ADMIN.CODE ྷ 19.4 (c) (1) (2012). The term "presence" as used in section 19.4 has not been administratively or legislatively defined; therefore, it must be given its ordinary and plain meaning. State v. Reed, 888 S.W.2d 117, 122 (Tex.App.—San Antonio 1994, no pet.). The Reed court defined "presence" as an [a]ct, fact, or state of being in a certain place and not elsewhere, or within sight or call, at hand, or in some place that is being thought of. The existence of a person in a particular place at a given time particularly with reference to some act done there and then. Besides actual presence, the law recognizes "constructive" presence, which latter may be predicated of a person who, though not on the very spot, was near enough to be accounted present by the law, or who was actively cooperating with another who was actually present. Where there is a fact issue raised with respect to the 15-minute waiting period requirement, a Defendant is entitled to an instruction that the jury disregard the test if it believes or has a reasonable doubt as to whether the 15-minute observation requirement was complied with. In reliance on Atkinson, 923 S.W.2d at 25, and as authorized by article 38.23 of the Code of Criminal Procedure, the Trial Court in this case resolved appellant's motion to suppress the intoxilyzer test results by concluding the evidence at the hearing presented a fact issue. Thus, the jury was given the final decision by the Trial Court including in its charge an instruction that the jury was to disregard the test results on determining they were obtained without complying with the requirement of 15 minutes of continuous presence under section 19.3(c)(1) of title 37 of the Administrative Code. The jury resolved the fact issue against appellant and in favor of the State, and its determination of the issue is supported by the evidence. The law does not require continual observation, 37 Tex.Admin.Code 19.4(c)(1) (2012), and the jury could have rationally concluded that Albers was in Appellant's presence, as that term is defined in Reed, for 15 minutes prior to the test. Reed, 888 S.W.2d at 122. 

N.  BREATH TEST DELAY PRECLUDING BLOOD TEST

Hawkins v. State, 865 S.W.2d 97 (Tex.App.—Corpus Christi 1993, pet. ref’d).

Fact that breath test was not taken until two hours after arrest thereby precluding option of defendant’s exercising right for blood test within 2 hours of arrest did not render breath test result inadmissible.

O.  OFFICER MAY REQUEST MORE THAN ONE TYPE OF TEST

State v. Gonzales, 850 S.W.2d 672 (Tex. App.—San Antonio 1993, pet. ref’d).

Where defendant was unable to give sufficient breath sample due to asthma, it was proper for officer to request a blood test and indicate the DIC-24 consequences of refusal would apply to blood test request as well. 

SEE ALSO

Texas Department of Public Safety v. Duggin, 962 S.W.2d 76 (Tex.App.—Houston [1st Dist.] 1997, no pet.).

Kerr v. Texas Department of Public Safety, 973 S.W.2d 732 (Tex.App.—Texarkana 1998, no pet.).

P.  BREATH TEST ADMISSIBLE AS PROOF OF LOSS OF NORMAL

Hunt v. State, 848 S.W.2d 764 (Tex.App.—Corpus Christi 1993, no pet.).

Where Court refused to submit charge on .10 definition due to inability or failure of State to extrapolate, it was proper for the State to argue that the jury consider the breath test result as proof of "loss of normal.."

Q.  BREATH TEST RESULTS ADMISSIBILITY ISSUES

1.  BREATH TEST RESULT IS NOT HEARSAY

Stevenson v. State, 895 S.W.2d 694 (Tex.Crim.App. 1995) on remand, 920 S.W.2d 342 (Tex.App.—Dallas 1996, no pet.).

When Intoxilyzer operator did not testify, the Court held the test result became hearsay and remanded case to Court of Appeals to make that determination (controversial decision with 4 dissents).  When asked on remand to consider whether breath test results are hearsay, found (logically) that a breath test slip could not be “hearsay” and affirmed the original holding.

Smith v. State, 866 S.W.2d 731 (Tex.App.—Houston [14th Dist.] 1993, no pet.).

“(c)omputer-generated data is not hearsay.”  Where the computer conducts the test itself, rather than simply storing and organizing data entered by humans, the test result is not subject to a hearsay objection.  The proper objection to the admissibility of a computer-generated Intoxilyzer printout slip should be based upon whether the State has shown that the printout is reliable.

2.  PARTIAL TEST RESULTS INADMISSIBLE

Boss v. State, 778 S.W.2d 594 (Tex.App.—Austin 1989, no pet.).

Arresting officer should not have been permitted to testify that, although valid Intoxilyzer test result was not obtained, digital indicator preliminarily registered alcohol content of defendant’s breath at level that was two and one half times the legal level of intoxication.

3.  NEW TECHNICAL SUPERVISOR CAN LAY PREDICATE FOR OLD TESTS

Beard v. State, No. 10-12-00169-CR, 2013 WL 6136943 (Tex.App.—Waco 2013).

Testimony of new technical supervisor with current responsibility for breath testing apparatus regarding operation of apparatus and use of reference sample solution based upon records generated under his predecessor in such position did not violate Defendant's constitutional right to confrontation, as supervisor did not testify he prepared or created report that was actually created by his predecessor and did not certify such a report based on machine's results, and neither tests at issue nor records of results thereof were testimonial. 

Boutang v. State, No. 04-11-00764-CR, 2013 WL 696782 (Tex.App.—San Antonio 2013).

This case concerns the ability of a new technical supervisor to testify about tests done by the previous technical supervisor. At the time of trial, the previous technical supervisor had retired so the State called the new technical supervisor to prove the proper functioning of the breath testing instrument. Relying on records that were produced by the instrument, the new technical supervisor testified about the working condition of the instrument and the reference. The Defense objected that this violated their confrontation rights under Crawford. The Court of Appeals held that the maintenance records fall under the category of "documents prepared in the regular course of equipment maintenance", which under Melendez-Diaz qualify as non-testimonial records.

Alcaraz v. State, No. 04-11-00881-CR, 2013 WL 951533 (Tex.App.—San Antonio 2013).

This case involved a breath test sample that was supported with the testimony of a technical supervisor who was not the technical supervisor at the time the sample was tested. The new technical supervisor testified based on review of records created by the former technical supervisor. The Defense objected under Crawford. In rejecting this attack, the Court held that the admission of a report of breath machine test results did not violate Defendant's rights under Confrontation Clause of the United States Constitution even though report was admitted without testimony of person who had held position of senior forensic analyst at the time test was administered to Defendant. In finding no Confrontation Clause violation, the Court focused on the fact that the Defendant had the opportunity to confront current senior forensic analyst as to her opinion, based on her review of maintenance and inspection records regarding machine's accuracy and whether machine was working properly on day Defendant's test was administered, and also to confront officer who administered test to Defendant and signed report. In responding to attack that it was improper for the new technical supervisor to testify about reference samples created by former technical supervisor, the Court held that reference samples created by former technical supervisor may be relied upon for purpose of confirming breath test machine's accuracy by demonstrating the machine was working at time of administration of Defendant's test, and were not "testimonial" for purposes of Confrontation Clause, and thus analyst was not required to personally testify at trial. 

Henderson v. State, 14 S.W.3d 409 (Tex.App.—Austin 2000, no pet.).

Technical Supervisor who maintained instrument was not called to testify.  The State called his successor instead who did not prepare reference sample or personally maintain instrument when sample was given.  Court held that succeeding supervisor could rely on previous supervisor’s records as basis for opinion that breath test machine was working properly.  Also held to be relevant that new supervisor had personal knowledge that old supervisor was certified.

R.  KELLY V. STATE

 

1.  APPLIES TO BREATH TESTS

Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997).

This was a breath test case in which the issue at the motion to suppress was whether the test set forth in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992) applied to breath tests.  The Court of Criminal Appeals remands back to the Court of Appeals and holds that the Kelly test is applicable to all scientific evidence offered under Rule 702 and not just novel scientific evidence.  The three prongs that must be satisfied are:  (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question.

2.  FIRST TWO PRONGS OF KELLY TEST MET BY STATUTE

Beard v. State, 5 S.W.3 883 (TA—Eastland 1999), permanently abated in 108 S.W.3 304 (TCA—2003), opinion withdrawn in 2003 WL 21398347 (TA—Eastland, June 18, 2003) (unpublished). (Case was permanently abated due to death.  The body of opinion can be found at http://www.cca.courts.state.tx.us/opinions/028200.htm.)

Harmonizing the Transportation Code and Rule 702, we hold that when evidence of alcohol concentration as shown by the results of analysis of breath specimens taken at the request or order of a peace officer is offered in the trial of a DWI offense, (1) the underlying scientific theory has been determined by the legislature to be valid; (2) the technique applying the theory has been determined by the legislature to be valid when the specimen was taken and analyzed by individuals

who were certified by, and were using the methods approved by the rules of, the Department of Public Safety; and (3) the trial court must determine whether the technique was properly applied, in accordance with the department’s rules on the occasion in question.

Henderson v. State, 14 S.W.3d 409 (Tex.App.—Austin 2000, no pet.).

Testimony regarding the validity of the underlying theory of breath test analysis and technique applying theory was not necessary for test results to be admissible.  Legislature recognized the validity of the theory and the technique when it passed the statute authorizing admission of test results in DWI cases.

S.  PROPER TO OFFER BT SLIPS TO SHOW NO RESULT OBTAINED

Kercho v. State, 948 S.W.2d 34 (Tex.App.—Houston [14th Dist] 1997 pet. ref’d).

State offered Intoxilyzer slips to show no test result was obtained.  Defense objected that compliance with DPS regulation was not shown.  Court held that such compliance is required only when test results are being offered, and in this case since the State conceded the test was invalid and the slips did not show any result, the admission of the test slips was proper.

T.  LOSS OF NORMAL & PER SE LAW EVIDENCE NOT MUTUALLY EXCLUSIVE

Daricek v. State, 875 S.W.2d 770 (Tex.App.—Austin 1994, pet. ref’d).

Proof needed at trial to show “loss of faculties” and per se offense are not mutually exclusive in that blood test result is probative of loss of faculties and failure of FSTs makes it probable the breath or blood test taken an hour before is reliable.

U.  NO SAMPLE TAKEN = NO DUE PROCESS VIOLATION

Johnson v. State, 913 S.W.2d 736 (Tex.App.—Waco 1996, no pet.).

Failure of officer who arrested defendant for DWI to offer blood or breath test did not deny defendant his due process rights.  No evidence that results would have been useful or that officer acted in bad faith (defendant was belligerent).

V.  FAILURE TO TIMELY RESPOND TO REPEATED BT REQUEST = REFUSAL

State v. Schaeffer, 839 S.W.2d 113 (Tex.App.—Dallas 1992, pet. ref’d).

During videotape session, appellant changed his mind several times about consenting to breath test. Officers refused to read appellant his rights for third time, or allow him to read them himself.  Court found that appellant never affirmatively consented to breath test, and that trial court could have reasonably concluded, based on the record, that appellant did not voluntarily consent or refuse to give a breath test.  Judge’s suppression of breath test upheld.

W.  EXTRAPOLATION

1.  IS NOT NEEDED TO PROVE DEFENDANT WAS INTOXICATED UNDER CHEMICAL TEST DEFINITION

Wyatt v. State, No. 06-12-00150-CR, 2013 WL 3702148 (Tex.App.—Texarkana 2013).

Defendant contends that a BAC of .10 from a sample taken ninety minutes after driving without extrapolation does not establish that he was over .08 at the time of driving. In rejecting this argument, the Court holds the .10 was probative of his BAC at the time of driving and this was supported by accompanying evidence of impairment that was observed at the time of arrest. 

Stewart v. State, 129 S.W.3d 93 (Tex.Crim.App. 2004).

In a lower court opinion, the San Antonio Court of Appeals held that a .16 breath test result was inadmissible, irrelevant, and “no evidence” in the absence of extrapolation and should therefore not have been admitted into evidence.  The Court of Criminal Appeals reversed and remanded rejecting that argument.  It specifically held that the results of a breath test administered eighty minutes after the defendant was pulled over were relevant even without retrograde extrapolation.  One argument that the court rejected was that Section 724.064 of the Transportation Code mandates that such results are admissible in DWI cases.  The Court also failed to address the issue of whether the probative value of the breath test results were outweighed by the prejudicial effect.  The case was remanded to the San Antonio Court of Appeals to address that issue and other points. 

This case was sent back by the Court of Criminal Appeals so the Court of Appeals could answer the probative vs. Prejudicial effect issue.  In holding that the probative value outweighed the prejudicial effect, the Court pointed out that both of the samples tested sigtnificantly over the legal blood-alcohol limit, the breath test results related directly to the charged offense, presentation of the evidence did not distract the jury away from the charged offense, and the State needed the evidence to prove intoxication due to evidence that defendant took field sobriety tests under poor conditions and she passed four of the field sobriety tests.  Note the need for the evidence was not as important to the Court of Criminal in Mechler.

Garcia v. State, 112 S.W.3d 839 (Tex.App.—Houston [14th Dist] August 7, 2003, no pet.).

Beard v. State, 5 S.W.3 883 (TA—Eastland 1999), permanently abated in 108 S.W.3 304 (TCA—2003), opinion withdrawn in 2003 WL 21398347 (TA—Eastland, June 18, 2003) (unpublished). [Case was permanently abated due to death.  The body of opinion can be found at http://www.cca.courts.state.tx.us/opinions/028200.htm].

In response to the defendant’s argument that without retrograde extrapolation the breath test results themselves were inadmissible as they were irrelevant to show the subject’s BAC at the time of the stop unless the State offers extrapolation testimony.  Judge Womack pointed out that the argument was one that “we have never accepted and that other courts have rejected.”

SEE ALSO:

Forte v. State, 707 S.W.2d 89 (Tex.Crim.App. 1986). 

Price v. State, 59 S.W.3d 297 (Tex.App.—Fort Worth 2001, pet. ref’d).

Texas Department of Public Safety v. Thompson, 14 S.W.3d 853 (Tex.App.—Beaumont 2000, no pet.).

Mireles v. State, 9 S.W.3d 128 (Texas 1999).

O’Neal v. State, 999 S.W.2d 826 (Tex.App.—Tyler 1999, no pet.).

Martin v. Texas Department of Public Safety, 964 S.W.2d 772 (Tex.App.—Austin 1998, no pet.).

Owen v. State, 905 S.W.2d 434 (Tex.App.—Waco 1995, pet. ref’d).

2.  PROBATIVE VALUE OF BT OUTWEIGHS PREJUDICIAL EFFECT

Gigliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App 2006).

In determining that the trial court and Court of Appeals properly held that even in the absence of retrograde extrapolation, evidence of two breath test samples taken 80 minutes after the defendant was driving which read .09 and .092, the Court of Criminal Appeals found as follows:

1) probative force of appellant’s breath test results was considerable, since those test results showed that appellant had consumed in the hours preceding the breath test, a substantial amount of alcohol–enough alcohol to raise his breath alcohol concentration to 0.09.  This evidence tended to make more probable appellant’s intoxication at the time he was driving, under either statutory definition of intoxication.

2) The State’s need for the breath test results was considerable, since the State’s videotape which showed appellant as quite lucid, tended to contradict to some extent Officer Heim’s testimony concerning appellant’s appearance and behavior.

3) The breath test results did not have a tendency to suggest decision on an improper basis.  The test results were not inflammatory in any sense and they “relate[d] directly to the charged offense.

4) The breath test results did not have a tendency to confuse or distract the jury from the main issues because the results related directly to the charged offense.

5) The breath test results did not have any tendency to be given undue weight by the jury.  Since the State’s expert testified that the breath test results could not be used to determine what appellant’s breath alcohol concentration was at the time he was stopped, the trial court could have reasonably concluded that the jury was equipped to evaluate the probative force of the breath test results.

The Court of Criminal Appeals did not say that breath test results will always be admissible in the face of a Rule 403 challenge.  It suggested that if a jury was not given adequate information with which to evaluate the probative force of breath test results, it might be reasonable to conclude that the admission of such evidence would pose a danger of misleading the jury.  It further suggested that if the test was administered to an accused several hours after he was stopped and the results were at or below the legal limit, it might be concluded that the probative force of the test results was too weak to warrant admission in the face of a Rule 403 challenge.

State v. Mechler, 153 S.W.3d 435 (Tex.Crim.App.2005).

This is a post Stewart case where the Court held that the prejudice of admitting evidence of breath testing machine results taken one and a half hours after defendant’s arrest did not outweigh its probative value, and thus  results were admissible.  The Court so held even though it mentioned the State had other evidence of intoxication and may not have needed the results to convict  in this case.

3.  PREJUDICE OUTWEIGHS PROBATIVE (A RIDICULOUS OPINION)

State v. Franco, 180 S.W.3d 219 (Tex.App.—San Antonio 2005, pdr refused).

This arose from the State’s appeal of a Motion to Suppress Blood Test Results in an Intoxication Manslaughter/Intoxication Assault case.  The facts in brief were that the crash was caused by defendant running a stop sign that he claimed he did not see.  The offense occurred at 7:50 p.m.  The test results in question were two blood test results: one was taken at 10:05 p.m. and was a .07; the second was taken at 11:55 and was a .02.  There was also a PBT used at the scene that showed a .09.  The Court applied a four part test as follows:

1) What is the probative value of the evidence? The Court found the probative value of the results of Franco’s blood tests are significantly diminished by the two and four hour delay in obtaining the samples and by the fact that both results are below the legal limit, and coupled with the fact that there was no extrapolation evidence (this was held properly excluded in this same opinion). This factor was found to go in the defendant’s favor (? Added by me). 

2) The potential to impress the jury in some irrational yet indelible way: In its examination of this issue, the Court stated it could not fathom a reason for the State to introduce test results showing blood alcohol concentration below the legal limit other than to invite the jury “to conduct its own crude retrograde extrapolation,” but it admitted that the Texas Court of Criminal Appeals has rejected this argument (in Stewart which, until this was handed down, was the worse opinion to come out of San Antonio Court of Appeals).  It then conceded the results showed the defendant consumed alcohol and found that part of the test favored admission. 

3) The time needed to develop the evidence: This factor also was found to favor admission

4) The proponent’s need for the evidence: The Court then finds the State did not have a great need for this evidence as other evidence showed that officer smelled a strong odor of alcohol on defendant’s breath, defendant was swaying and told officer he drank a beer; the results of the field sobriety tests showed signs of impairment; a videotape at the scene, on which defendant states he had been drinking beer before the accident; and possibly the results of the portable breath test taken at the scene an hour after the accident (which has never been found to be admissible in court!?) all led the Court to find the State does not have a great need for the blood test results.  This factor thus weighs in favor of exclusion.  The Court held that blood test results were properly excluded.

4.  EXTRAPOLATION EVIDENCE IMPROPERLY ADMITTED

Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001).

This case has sent broad ripples through the state and there has been a great deal of discussion and disagreement over its meaning and impact on the admissibility of extrapolation evidence.  I am

less inclined than others to believe that this opinion has broad and terrible implications.  What follows is a brief review of what I interpret this holding to mean.

The case involves the much touted State’s expert George McDougall who very much impressed the Court of Appeals in the Hartman case cited above and Court of Appeals opinion of this case.  The issue before the Court of Criminal Appeals is whether the State proved by clear and convincing evidence that McDougall’s retrograde extrapolation was reliable.  The Court held that in this case it was not, and that the testimony should have been excluded.  In arriving at this conclusion, the Court is careful to point out that it is not saying extrapolation is necessary for the State to prove a defendant guilty in a DWI or to get the results of a breath or blood test before the jury.  It also explicitly finds that “retrograde extrapolation” can be reliable in a given case.  It also sets what I believe to be a minimum threshold for the type of factors an expert must be aware of before he can give such an opinion.  Those facts are:  the length of time over which the defendant was drinking, the time of his last drink, and the defendant’s weight.  Without knowing these factors, I don’t believe it would be proper for an expert for either side to give an opinion on what the defendant’s alcohol level would have been at the time he/she was driving.

5.  IMPROPER ADMISSION OF EXTRAPOLATION EVIDENCE

(a) NOT HARMLESS

Bagheri v. State, 119 S.W.3d 755 (Tex.Crim.App.2003).

This was a DWI case where extrapolation evidence was allowed in over objection.  On appeal, the State conceded that the extrapolation evidence should not have been admitted.  The Court of Appeals found the error to be harmful and reversed.  One argument made by the State on appeal was that the Texas Legislature  effectively mandated that jurors engage in retrograde extrapolation.  They  did not agree with that argument pointing out the State did have to show breath results are relevant.  The Court upheld the Court of Appeals reversal as it could not say that the erroneous admission of retrograde extrapolation testimony did not influence the jury.  It did not address the issue of whether retrograde extrapolation is needed to prove intoxication under the per se definition.

(B) HARMLESS

Castor v. State, 2011 WL 5999602 (Tex.App.—Corpus Christi 2011, no pet.)(Not designated for publication).

In holding retrograde extrapolation was improperly admitted, the Court focused on its belief that the State's expert demonstrated an inability to apply and explain it with clarity and did not show an appreciation of the subtleties inherent in it. He knew no personal characteristics of the driver or circumstances of his alcohol consumption. He also offered no testimony on the rate at which alcohol is eliminated from the body. The Court found the error to be harmless. The lesson here is to be thorough in your direct of your expert. 

6.  EVIDENCE OF DRUG INGESTION STILL RELEVANT WITHOUT EXTRAPOLATION

Manning v. State, 114 S.W.3d 922 (Tex.Crim.App.2003).

This was a Manslaughter charge where the State alleged that one of the reckless acts was that the defendant consumed a controlled substance.  The only evidence of this was the presence in the blood sample of .15 mg. of a cocaine metabolite known as benzoylecgonine.  The testimony at trial was this result at best showed that some time before the accident, cocaine was ingested.  The Court of Appeals felt the evidence was not compelling and should not have been admitted because the State did not extrapolate back to the time of the accident.  The Court of Criminal Appeals reversed the Court of Appeals and agreed with the State that the lower Court was confusing sufficiency with admissibility.  The evidence was still relevant to show cocaine had been consumed by the defendant.

7.  EXTRAPOLATION EVIDENCE PROPERLY ADMITTED

Sutton v. State, 2011 WL 3528259 (Tex.App.—Dallas 2011).

All the facts in the chemist's hypothetical here were tied to characteristics of defendant that were introduced into evidence during trial or known to the chemist: appellant's weight, the timing of the stop, the timing and results of his breathalyzer test, the timing of his last drink, and the type of alcohol consumed. The breath tests were administered approximately an hour and a half after the offense, and the test indicates the tests were performed within three minutes of each other. The record shows no inconsistencies or errors in the chemist's testimony concerning the retrograde extrapolation and said testimony was properly admitted.

 Kennedy v. State, 264 S.W.3d 372 (Tex.App.—Houston [1 Dist.], 2008).

The only information known to experts in this case on which to base their extrapolation concerning the defendant’s BAC at the time of the collision was his height and weight, the type and approximate number of drinks, the time of the crash and the time of the blood test which was about two hours and 15 minutes after the crash.  The expert was also told to rely on certain assumptions such as the time period over which he drank, when and what he last ate, the size of the beer consumed, and the fact that defendant was a “social drinker.”  The Court held it was not error to admit the extrapolation evidence. 

Fulenwider v. State, 176 S.W.3d 290 (Tex.App.—Houston [1 Dist.] 2004.

The retrograde extrapolation expert had sufficient knowledge of defendant’s characteristics and behaviors to render reliable extrapolation of defendant’s alcohol concentration at time of alleged offense of DWI.  The expert testified that she did not know when defendant had her last drink, but did know the time of offense, time that breath tests were conducted, and defendant’s gender, weight, height, and last meal, and expert had basis on which to determine time that defendant had her last drink, given eyewitness testimony as to defendant’s drinking prior to offense.

Peden v. State, 2004 WL 2538274 (Tex.App.—Houston [1 Dist.] 2004, pdr ref’d).

Retrograde extrapolation was properly admitted in this case based upon the expert’s knowing the following details.  There was a single test result an hour and forty-four minutes after the stop.  She knew defendant’s weight and what he ate over a four hour period and that he did not have any alcohol after 10:30 which was thirty-five minutes before the stop and an hour and nineteen minutes before the test result of 0.12.  Based on this the expert concluded that even if the defendant’s alcohol content had peaked at the time of testing, his alcohol concentration would have been over 0.08 at the time he drove his car.

Bhakta v. State, 124 S.W.3d 738 (Tex.App.—Houston [1 Dist.], 2003, pdr ref’d).

The Court held that the State’s expert was qualified to testify about retrograde extrapolation and that he knew sufficient facts about the defendant to offer an opinion.  In so holding, the Court stressed that not every single personal fact about the defendant must be known to an expert giving retrograde extrapolation testimony in a driving while intoxicated prosecution in order to produce an   extrapolation with the appropriate level of reliability.  In this case, the facts known to the state’s expert were the time of his last drink, his weight and height, the time of the breath tests, the results of the breath tests, his last meal prior to being stopped, and the time of that meal.

8. RESULT OF BLOOD DRAWN 5/12 HOURS AFTER ARREST WITHOUT EXTRAPOLATION ADMISSIBLE UNDER RULE 403

Morales v. State, 2012 WL 1648366 (Tex.App.—San Antonio 2012).

In this case there was a 5 ½ hour delay in drawing blood and the defense objected to its admission under Rule 403. The State expert admitted he could not and he did not attempt to extrapolate. The Court of Appeals applied balancing test and found probative outweighed prejudice under these facts. 

X.  OPERATOR NEED NOT UNDERSTAND SCIENCE BEHIND THE INSTRUMENT!

Reynolds v. State, 204 S.W.3d 388 (Tex.Crim.App. 2006).

In response to the question of whether the breath test operator needed to understand the science behind the instrument, the Court said: The fact of certification is sufficient to meet the Kelly criteria with respect to the competence of the breath test operator.  That the opponent of the evidence can demonstrate that the operator has not retained all of the knowledge that was required of him for certification is a circumstance that goes to the weight, not the admissibility, of the breath test results.  As long as the operator knows the protocol involved in administering the test and can testify that he followed it on the occasion in question, he need not also demonstrate any personal familiarity with the underlying science and technology.

Y.  FAILURE TO NOTE TEMPERATURE

1.  OF REFERENCE SAMPLE = BT EXCLUDED

State v. Garza, 2005 WL 2138082, No. 04-02-00626-CR (Tex.App.—San Antonio 2005)(not for pub.).

Trial court held that evidence of Intoxilyzer test results was inadmissible without testimony that the Intoxilyzer’s reference sample was operating at a “known” temperature at the time the test was administered.  The technical supervisor testified it was reasonable to infer the temperature was in range as he had checked it before and after the test.  The Court held that it was not abuse of discretion for the trial court to exclude the results.  It distinguished this case from Gamez on the basis that the reference was checked the day before and the day after in Gamez, and in this case it was the week before and the week after.

2. OF REFERENCE SAMPLE = BT NOT EXCLUDED 

Scillitani v. State, 343 S.W.3d 914 (Tex.App.—Houston [14 Dist.] 2011).

In administering the defendant's intoxilyzer test, the operator, believing the machine checked the temperature before administering the test to appellant, did not check the temperature of a reference sample on the intoxilyzer. He did conduct a diagnostic test on the intoxilyzer, which did not identify or indicate any invalid conditions; then appellant gave two breath samples, taken three minutes apart. The intoxilyzer did not indicate any malfunction. At first in an earlier hearing, the technical supervisor said regulations were not followed but later testified that the current regulations no longer require that the reference sample be taken at a known temperature. Court held test properly admitted. 

3. OF SUSPECT & REFERENCE SAMPLE = BT NOT EXCLUDED

Gamez v. State, 2003 WL 145554 (Tex.App.—San Antonio, 2003) (not for pub.).

The Defense proved through the State’s expert that the “Fox study is” was accurate in its findings that an elevated alcohol concentration can result if the subject is running a high fever (the State’s expert said it would have to be 4 ½ to 5 degrees elevated).  On the basis of that answer, the defendant tried to get the Court to suppress the breath test because his temperature was not taken by the operator prior to his sample being taken.  The Court rejects that argument finding there is no such requirement in the breath testing regulations.  It also found that the operator’s failure to check the reference sample temperature was not a basis for exclusion as the technical supervisor had checked it the day before and the day after the test, and both times it was at the correct temperature.