OK all you DWI prosecutors out there. The Court of Criminal Appeals finally released its opinion in Beard v. State (unanimous). This is the case out of the 11th Court of Appeals which addressed whether the trial court erred by admitting the breath test results into evidence withou first conducting a "gatekeeper" hearing to determin the validity of the underlying scientific theory of, and the technique of its application by, Intoxilyzers. The Court said that the Legislature by statute had provided for the first two prongs of Kelly, and that the trial court only has to consider the third prong: was the technique properly applied in accordance with DPS rules on the occasion in question. The Court, of course, said that a full gatekeeper hearing was required before admission of extrapolation evidence, BUT the Court also said that it and other courts have rejected the argument (made by Beard) that the breath test results were irrelvant to show the defendants BAC at time of the stop unless the state offered extrapolation testimony.

For those of you who do prosecute DWI cases, how do you think this opinion will affect your cases? Will this help clear up some of the confusion caused in the trial courts by Mata? Our Breath Testing Bureau has been tracking this as those of you who have responded to my previous inquiries already know.

Janette Ansolabehere
Senior Assistant General Counsel
Texas Department of Public Safety

I'm glad you brought this up as I noted that language when I read the opinion. The exact quote related to the Court's discussion of it's previous holding in Hartman regarding the question of the admissibility of extrapolation evidence. In referring to the defense atty's argument concerning the admissibility of the breath test result the Court says, "His (the defense atty's) only argument that the results themselves wre inadmissible was that they were irrelevent to show the subject's BAC at the time of the stop unless the State offers extrapolation testimony -- an argument that we have never accepted and other courts have rejected." The attached footnote cites cases out of Arizona, Connecticutt and Mireles v. Texas Department of Public Safety which is a Texas Supreme Court opinion. As many of you know I can point to a number of other opinions that I think point to that issue going as far back as Forte. So the problem is that many "judges" still seem to feel that the "we" mentioned here (The Texas Court of Criminal Appeals) has actually not addressed that question. In fact in Mata the same Court says they aren't addressing it. I will of course cite this as proof of the what Court has said or a good hint and what they will say in the future but I'm still waiting for the Court to speak to one of the cases that I know are in the Appellate pipeline that directly address this issue. I'd love to hear from other prosecutors whether this case has changed the mind of any of the judges that in the past have thought the test is not admissible.

Does anyone think that this will apply to blood tests? The statute says "breath, blood, or urine"