I have a trial set where the defense attorney claims that the Breath Test results are inadmissible b/c the DIC 56 is sworn to but not signed by the technical supervisor. I say this is false b/c the DIC 56 only relates to the ALR hearing and whether or not the technical supervisor needs to be present.

Any case law to use in my suppression hearing?

I don't think there is any criminal case law on your issue, principally because the defense attorney is way out in left field. The DIC-56 was created to comply with the requirements of Transportation Code section 524.038. Back in the good ole days as an ALR Hearings Attorney and an ALR appellate attorney, I had lots of cases where I had the Tech testify rather than use a DIC-56 for one reason or another. When a defense attorney would object that I hadn't introduced the DIC-56, the judge would point out that I didn't have to do that--the witness was sitting in the witness chair, testifying live and in person. Moreover, as Section 524.038 states, the validity of the results and the reliability of the instrument used to test the defendant's breath samples "may be attested to in a proceeding under this subchapter by an affidavit...." This sentence not only makes it clear that use of the affidavit is optional, but that the affidavit is only meant for use in ALR hearings!

Feel free to call me. You can reach me via DPS' main number, 512-424-2000.

Janette Ansolabehere
Senior Assistant Gen Counsel
DPS