In light of the Bagheri decision, and what that may mean for the pending Stewart decision, do we have any plans for legislation to address these problems with extrapolation? Any thoughts or suggestions?

John L. Pool

I put together a chart of the DWI/DUI laws of the other states for our Breath Testing Bureau about a year ago. At least 26 states provide for a presumption of intoxication at the time of driving if the defendant has BAC of .08 (or .10) or higher. Some of those states have a time limit within which the test sample must be takend (two, three, or four hours). A couple of states even have an enhanced offense if the person is .15 or over with X time of driving. A couple of states word the offense so that if the person has a BAC of .08 (or .10) or higher within X time of driving, the person commits the offense of DWI/DUI--no presumption, no extrapolation.

If the CCA goes the same way with ]Stewart that they did with Bagheri, the result will not be pretty. Hopefully the Legislature will recognize that requiring extrapolation testimony in order to introduce test analysis results defeats the whole idea of testing because it requires the defendant to waive his or her fifth amendment rights and testify. Right. I found it interesting Bagheri that the CCA quoted Forte. I have always read that case to mean that the jury if free to draw an inference from the totality of the evidence (test results, time of test, and observations of the officer at the scene of the stop) that the defendant has a BAC at or over the specified "legal limit" without the necessity of the State offering extrapolation testimony. But that doesn't seem to be the way the CCP read the case.

Janette Ansolabehere

Anybody have friends at MADD? I am sure they would be glad to help us on this.

Colorado Co. C&DA Ken Sparks got his local state rep. to file HB 1530 (78R) last session, but it was stuck in quicksand the whole time. I'm sure he'd welcome some help next time around, because Capitol folk completely tune out at the first mention of scientific stuff like "retrograde extrapolation".

I authored HB 1530 for this last session of the legislature. Rep. Cook introduced it for me. Rep. Keel would not set it for a committee hearing. I comunicated with the legislative director for MADD and got no response. HB 1530 reads as follows:

"Section 49.12. PRESUMPTION REGARDING ANALYSIS. For purposes of this chapter, it is presumed that at the time of operating a motor vehicle, aircraft, or watercraft, the operator had an alcohol concentration level equal to or higher than the level shown by an analysis of breath or blood taken from the operator at or not later than three hours after the time the person was operating the motor vehicle, aircraft, or watercraft."

I doubt that it will have any success in the future unless a large federal grant or matching funds are conditioned upon its approval by the legislature, which is how the 0.08 was passed.

[This message was edited by Ken Sparks on 11-18-03 at .]

[This message was edited by Ken Sparks on 11-18-03 at .]

I guess we can always just allege loss of physical and mental faculties and stop alleging a BAC. Of course, all those intoxilyzer salesmen (and women) will be upset. Hey, maybe there is our in to the leg. Get the Intoxilyzer sales people to lobby.

I still believe we need to introduce criminal penalties for refusing to submit to field sobriety test and the breath/blood test. I know bills addressing these issues have been presented before, but they have never really gained any steam.

Hopefully we can encourage the legislature to enact positive legislation to address the DWI problem, rather than creating new financial penalties for DWI�s that IMHO will lead to more uninsured drivers and more DWI trials.

John L. Pool

Feels really weird to even suggest that's possible, but the way I remember the .08 standard being shoved down our state leg's throat, was that the rationale was, Texas was behind the times compared to most of the rest of the country and was comparatively high (maybe worst?) in per capita drunk-driving fatalities. Well, according to Janette's research, we are again lagging behind the majority of the states in applying a presumptive-intox standard of some sort, and I'm betting our intox-death stats are still bad. So, what about seeking a fed redux applying the .08 pressure to a presumptive law?

Bagheri's not that bad, as far as I read it... true, it says 724.064 doesn't guarantee relevance of a later breath test-- but since Mata we knew we had to get our cops asking those 'predicate' type questions, so will this really change what we're doing? My question is: what's the best way to get this across to any officers who may not fully grasp the importance of the Mata questions?

When officers make a traffic stop and suspect drugs, they have begun asking many more questions at the scene (before custody) to create the reasonable suspicion necessary to detain and do a search. For example, they ask where they are coming from, going, location of luggage, etc.

DWI officers seem to think they need to wait until after an arrest to begin asking substantive questions. Why get started so quickly on the FSTs? In lots of situations, the officers, on camera, could be asking:

when did you last have a drink?
what was it?
when did you last eat?
etc.

The officer would get the answer then. He won't get them at the station.

Query: If the officer, despite our advice (or demands) waits to get the answers until the suspect is in custody under art. 38.22 sec. 3, and by chance the suspect does still provide the Mata info, can it be used under Tex.R.Evid. 104(a) or 703 without regard to 38.22?

Query No. 2: Why did the DPS ever develop the policy of asking these questions only after the arrest? Old habits are hard to kick. My officers seem as dazed by Mata as the average legislator.

Just curious about how Bagheri has been affecting ya'll on a day-to-day basis... I hear scary stories about breath tests being excluded EVEN WITH the Mata questions and potential for retrograde extrapolation, on the basis of misreading Bagheri...

Anything new on this in your courts?

I was told yesterday that a court in Williamson County (no idea which) indicated that it would grant the defendant's motion to suppress the breath test results unless the State was prepared to put on admissible retrograde extrapolation testimony. Evidently, the trial courts are now reading Bagheri to mean that without retrograde extrapolation, the test results are inadmissible, even to show that someone had consumed alcohol in a loss of faculties case. I did run across a case that came out recently where the issue was whether the trial court erred when it permitted the tech to use retrograde extrapolation to testify what defendant's BAC (a range) should have been at the time of the test if he consumed only the three drinks he told the officer he had taken. The tech knew the defendant's age, height, and weight and used those fact with the three drinks admission. The defendant argued the court should not have admitted the testimony; the appellate court said the tech had enough evidence for the trial court to admit the testimony.

Janette

Fortunately, my judge did not read Bagheri that broadly and agreed that it simply stood for the proposition that it is harmful for an improperly extrapolated number to be in front of a jury. I read Bagheri as an extension of Mata in that regard--if you did not have enough info with which to extrapolate, but did anyway and the jury was allowed to consider that evidence, you've got a problem. I have not heard any rulings (or proposed rulings!) from any of our other four county courts at law. Not sure what would be left for the Stewart court to decide if Bagheri were read that broadly.

Looks like some reason has prevailed. http://www.cca.courts.state.tx.us/opinions/032403a.htm