One of our misdemeanor prosecutors in Nueces County received this proposed jury instruction from a defense attorney looking to rumble. It is as follows:

"The accuracy, reliability and credibility of the Intoxilyzer test result and the Simulator test result are to be judged by you the same as you would the testimony of any witness. In this regard, you are instructed that the Intoxilyzer and Simulator are also to be judged by you the same as you would judge the accuracy, reliability and credibility of any witness.

The simple fact that the Intoxilyzer and Simulator have been purchased by and are used by the State is not to be considered by you for any purpose. Accordingly, based only upon the evidence admitted at the trial, you are free to reject or accept, in part or in whole, any Intoxilyzer and/or Simulator evidence."

I have found an unpublished opinion (Ainsworth v. State, 2006 WL 684483, Texarkana, March 20, 2006) in which the court rejects this type of proposed language in a jury charge, but it's because there's no authority cited by the defense. Are there better cases and/or arguments to use? I think the strongest is that this submission would be an improper comment on the evidence, i.e., singling out certain pieces of evidence.

Thanks.

Jason Espinosa
Assistant District Attorney
Nueces County, Texas

Sounds like a pretty blatant comment on the weight of the evidence to me, singling out one particular type of evidence/testimony and giving the jury particular instructions about it. Check out Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995), where the judge denied a pretty similar instruction on DNA evidence.

Excellent answer. I agree.

I think it depends on how well the Intoxilizer did on cross-examination and also on whether it is considered to be an accomplice.

LOL. You got me with that one Martin.