Defendant young and sympathetic - so-so video (the kind where the jurors think 'he doesn't look that bad') but blew a .140. The officer who performed the breathalizer is deceased. No video of the test, although I do have the operator's affidavit notorized by an officer who is available for trial.

Arguments for admission? Esp. case law on testimonial v. non-testimonial for Crawford challenge and reliability. Can my expert testify that even if the test were done wrong, the results would not show alcohol where there was none - argue that it's an issue of credibility, not admissability?

I suppose the circumstances are comparable to cases in which the person who conducted an autopsy is no longer available. The question then becomes whether a new expert may testify, relying on the work of a prior expert. For such a case, see Mitchell v. State, 191 SW3d 219.

The records of who was tested and who performed the test are admissible under 803(6). The certification of the operator alone is then arguably sufficient to prove "proper application of the technique on the occasion in question," especially since the intoxilizer only produces a result if the device is properly operated. See Emerson, 880 S.W.2d at 869.

Richard Alpert (Tarrant County DA's Office) has dealt with several cases involving deceased officers and has had their videos admitted. I don't know if he's specifically had one involving a BTO with NO video, but I'm sure he (or Clay Abbott with TDCAA) can give you some further advice/info.