DWI Breath Test

Chapter 31. The Breath Test

§ 31:1 The breath test—Generally

* Texas Statutes and Codes
o Texas Penal Code Section 49.01(1) – Alcohol Concentration

(1) “Alcohol concentration” means the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine.

o Texas Penal Code Section 49.01(1) – Alcohol Concentration

(1) “Alcohol concentration” means the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine.

* Texas Penal Code Section 49.01(1) – Alcohol Concentration

(1) “Alcohol concentration” means the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine.

Texas Penal Code Section 49.01(2) – Intoxicated

(2) “Intoxicated” means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

o Texas Transportation Code § 724.011 – Consent to Taking of Specimen

(a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.

(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person’s alcohol concentration.

Texas Transportation Code 724.016-Breath Specimen

(a) A Breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to perform the analysis.

(b) The department may:

(1) adopt rules approving satisfactory analytical methods; and

(2) ascertain the qualifications of an individual to perform the analysis.

(c) The department may revoke a certificated for cause

Texas Transportation Code 724.019-Additional Analysis by Request

(a) A person who submits to the taking of a specimen of breath, blood, urine, or another bodily substance at the request of a peace officer may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist or registered professional nurse selected by the person take for analysis an additional specimen of the person’s blood.

(b) The person shall be allowed a reasonable opportunity to contact a person specified by Subsection (a).

(c) A peace officer or law enforcement agency is not required to transport for testing a person who requests that a blood specimen be taken under this section.

(d) 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 specimen taken at the request or order of the peace officer.

(e) A peace officer, another person acting for or on behalf of the state, or a law enforcement agency is not liable for damages arising from a person’s request to have a blood specimen taken

Court of Criminal Appeals of Texas

Jones v. State, 261 S.W. 2d 161

* Held that where medical witness qualified as expert in determining alcoholic content of breath, and on public highway while intoxicated and delivered to him, objection that instrument used to capture breath was not brought into court went to weight of evidence rather than its admissibility.

Texas Statutes, Codes and Rules

Texas ROE, Rule 401-Definition of “Relevant Evidence”

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Texas ROE, Rule 402- Relevant Evidence Generally Admissible’ Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority .

Texas Roe, Rule 403-Exclusion of Relevant Evidence on Special Grounds

although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Texas Roe, Rule 607- Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

Texas ROE, Rule 701- Opinion Testimony by Law Witness

If the witness is not testifying as an expert the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear determination of the witness’ testimony or the determination of the fact in issue.

Texas ROE, Rule 702-Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

31:3 The Intoxilyzer 5000–Generally

Texas Statutes and Codes

Texas Transportation Code 724.011 (a)-Consent to Taking of Specimen

If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 16.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’ body of a controlled substance, drug, dangerous drug, or other substance.

Court of Criminal Appeals of Texas

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

* This case discusses the requirements for admitting breath test evidence as stated in Hill v. State in light of the technology of the intoxilyzer. In HILL, the Court said breath test evidence was admissible with 1. Proof that the chemicals were compounded to the proper percentage for use in the machine. 2. Proof that the operator and the machine were under the periodic supervision of one who has an understanding of the scientific theory of the machine. 3. Proof by a witness who was qualified to calculate and translate the reading of the machine into the percentage of alcohol in the blood; that is, one who could eliminate the hearsay evidence mentioned earlier.
* With the intoxilyzer, there is no chemical compounding, but it is instead necessary to use a reference sample. Because the reference sample is so important to the intoxilyzer in Texas, a showing of proper use of a reference sample satisfies the first prong of the predicate, as modified due to the nature of the instrument.

Reynolds v. State, 204 S.W. 3d 386

* This is a more current case regarding admissibility of breath tests. It discusses history of both Hill and Harrell.
* It is not a part of the predicate for the admissibility of breath alcohol test results in a driving while intoxicated (DWI) prosecution that the operator of the breath testing apparatus himself understand the scientific and technological principles behind the apparatus.; as long as the operator is properly certified under the statue to operate it, knows the protocol involved in administering the test, and can testify that he followed it on the occasion in question,he need not demonstrate any familiarity with the underlying science and technology.
* 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 driving while intoxicated (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 are certified by, an were using methods approved by the rules of, Department of Public Safety (DPS) and (3) the trial court must determine whether the technique was properly applied in accordance with the rules of DPS on the occasion in question. The third prong is what must be determined in a Kelly hearing.
* 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.

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

Non preservation of the ampoules does not constitute a Brady violation. The unavailability of the ampoules merely goes to the weight and the credibility of the breathalyzer test results. we hold that the unavailable ampoules in the instant case were neither material nor exculpatory in the constitutional sense of a Brady violation.

Stevenson v. State, 895 S.W. 2d 694 (Tex. Crim. App., 1995)

Held that statute governing admissibility of evidence of alcohol concentration did not provide for blanket admissibility of evidence of breath test results regardless of from in which evidence was presented, and Court of Appeals this was required to determine whether evidence was hearsay,

Reynolds v. State,204S.W. 3d. 386 (Tex. Crim. App., 1995)

It is not a part of the predicate for the admissibility of breath alcohol test results in a driving while intoxicated (DWI) prosecution that the operator of the breath testing apparatus himself understand the scientific and technological principles behind the apparatus; as long the operator is properly certified under the statute to operate it, knows the protocol involved in administering the test and can testify that he followed it on the occasion in question, he need not demonstrate any familiarity with the underlying science and technology.

* Court of Appeals of Texas, Houston (1st Dist.)
o Malkowsky v. Texas Dept. of Public Safety, 53 S.W.3d 873 (Tex.App.-Houston [1st Dist.], 2001)
+ [NOTE: This case is in here because it shows that at least one appellate court in TX regards inability to produce an adequate breath sample as a refusal. The Court of Criminal Appeals does not appear to have a definite rule on this.]
+ Failure to produce an adequate breath sample, for the sole reason that the person is unable to comply because of his voluntary intoxication, is a refusal to give a breath sample as required by statute governing license suspension, because it is an intentional failure to give the specimen. V.T.C.A., Transportation Code § 724.032. This is a matter of public policy to prevent the accused from benefiting from their drunkenness.
Court differentiated case from Nevarez v. State, 671 S.W.2d 90 (Tex.App.-El Paso, 1984), for reasons including that in Nevarez the failure to pass the breath test was because of an asthmatic condition.

* Texas Transportation Code § 724.064– Admissibility in Criminal Proceeding of Specimen Analysis
o On the trial of a criminal proceeding arising out of an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft, or an offense under Section 106.041, Alcoholic Beverage Code, evidence of the alcohol concentration or presence of a controlled substance, drug, dangerous drug, or other substance as shown by analysis of a specimen of the person’s blood, breath, or urine or any other bodily substance taken at the request or order of a peace officer is admissible.
o Court of Criminal Appeals of Texas

Atkinson v. State, 923 S.W.2d 21 (Tex.Crim.App. May 01, 1996), abrogated on other grounds

+ In prosecution for driving while intoxicated (DWI) in which there was disputed issue of fact as to whether person who tested defendant continuously observed defendant for at least 15 minutes before administering the test, trial court should have given defendant’s requested charge telling jury to disregard evidence of alcohol concentration in defendant’s system if chemical analysis was administered in violation of Department of Public Safety regulations; instruction would not have violated prohibition against judicial comment on weight of evidence.

Love v. State, 861 S.W.2d 899 (Tex.Cr.App. 1993)

+ In prosecution for driving while intoxicated, defense counsel should have been allowed to call technical supervisor for breath testing instrument for further cross-examination on the day after supervisor testified, where defense counsel had not agreed to excuse witness, witness was available to testify, counsel perfected offer of proof showing testimony he wished to adduce was relevant and likely to impeach credibility of prior testimony, and additional cross-examination would have taken only about 15 minutes. Vernon’s Ann.Texas Const. Art. 1, § 10.
+ Error in precluding defense counsel from impeaching credibility of technical supervisor for breath testing equipment in prosecution for driving while intoxicated was not harmless beyond reasonable doubt, where trial was credibility battle which jury resolved in state’s favor and, had defense counsel been allowed to impeach supervisor, jury would have heard that some of supervisor’s testimony was incorrect.
+ To run a valid test on the intoxilyzer it is necessary to follow the Department of Public Safety regulations. (Court’s words at 905; however, invalid results are not necessarily inadmissible)

Palafox v. State, 509 S.W.2d 846 (Tex.Cr.App. 1974)

+ [NOTE: The date of this case indicates that the breath test device used here was not the Intoxilyzer 5000. However, the method of attack would probably work regardless of the type of breath test device used.]
+ No proper predicate was laid for introduction of results of breathalyzer test where there was no showing that officer who administered test possessed a valid certificate issued by Department of Public Safety or that chemical analysis of defendant’s breath was performed according to methods approved by the Department and there was no showing of use of properly compounded chemicals, existence of periodic supervision over machine and operation by one who understood scientific theory of the machine and proof of the results of the test by witness qualified to translate and interpret such results so as to eliminate hearsay

+ 37 TX ADC § 19.4—Approval of Techniques, Methods, and Programs [NOTE: only included part of the statute requiring 15 minute waiting period; the rest of the statute basically sets forth procedure for having a program approved.]
+ (c) All breath alcohol testing techniques, in order to be approved, shall meet, but not be limited to, the following:
+ (1) a period during which an operator is required to remain in the presence of the subject. An 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

+ Court of Criminal Appeals of Texas

Stewart v. State, 129 S.W.3d 93 (Tex.Crim.App., 1993)
+

Even without retrograde extrapolation evidence, results of breath tests administered 80 minutes after defendant was pulled over were relevant in prosecution for driving while intoxicated (DWI); test results tended to make it more probable that defendant was intoxicated at the time she drove under either the “per se” or “impairment” definition of “intoxication,” there was no evidence she consumed alcohol after driving, and absence of retrograde extrapolation evidence did not encourage jury to decide case based on facts not in evidence. Rules of Evid., Rule 401.
o Court of Appeals of Texas, 14th District
+ Verbois v. State, 909 S.W.2d 140 (Tex.App.-Houston [14th Dist.], 1995)
+ [NOTE: I am including this case even though it is an appellate court case because this is the longest amount of time I have seen between the time of the detention/arrest and the breath test – 2.5 hours.]
+ Prejudicial nature of results of breath test taken two and one-half hours after automobile accident did not outweigh their probative value where tests were not shown to be unreliable, and expert testimony that results could not be used to determine the level of alcohol in driver’s system at time of accident and that breath tests could produce erroneous results eliminated potential for undue persuasiveness. Rules of Crim.Evid., Rules 402, 403.