OK, What now?? The San Antonio Court of Appeals reversed Stewart's conviction for DWI. They found that the trial court erred in admitting Stewart's breath test results because they "were irrelevant." The test was given 80 minutes after the arrest and the tech (McDougall) testified that he did not have enough information to testify regarding retrograde extrapolation. The court seemingly ignored Forte v. State and Beard v. State.

Anyway, the opinion was issued on January 8, 2002, and the Lexis cite is 2003 Tex. App. LEXIS 70.

Janette Ansolabehere

So, now you have a great chance to get PDR and get all this mangled case law straightened out. I think it would be rather odd if a decision preventing the presentation of evidence of the presence of alcohol in a defendant's system were found "irrelevant."

I wouldn't go so far as to call it good news but it would be nice to have this issue cleared up once and for all. If the San Antonio Court of Appeals continues to churn out such bad opinions we may want to look into giving that territory back to Mexico?

If Mata II is correct, then the court is accurate in stating: "Without retrograde extrapolation to show whether her body was absorbing or eliminating alcohol at the time of the test, those test results are irrelevant to whether her alcohol concentration was more than 0.10 when she drove." It is also true that the result at the time of the test did not tend to prove whether her BAC was higher, lower, or the same at the time of driving. It was, however, some evidence that she may have suffered loss of use of normal faculties at that time and certainly helped to prove that any such loss was the result of the consumption of alcohol. Thus, the Rule 402 objection had no basis although a limiting instruction was probably called for to eliminate any crude extrapolation effort by the jury. It is odd three intelligent judges would think otherwise although they seemed a bit upset by the prosecutor's arguments to the jury.

It is good cases like this are now arriving though. Not only will the CCA be called upon to definitively interpret the meaning of Rule 402 in this area, but assuming a bill is introduced to change 49.04, this case will only demonstrate the need to change the law.

Or we can have a fire sale on all those useless intoxilizers scattered around the state or at least in the 4th COA district.

And the answer to the Stewart PDR may already be issued in Manning v. State. The court of appeals reversed for admission of evidence of presence of cocaine in blood absent extrapolation testimony. CCA says that is confusing admissibility with sufficiency. Drug evidence comes in because it proves defendant did ingest drugs before driving. The same reasoning should apply to results of a breath test, establishing that defendant did drink alcohol.

I notice that Stewart v. State is set for oral arguments on Thursday, September 18th, at St. Mary's School of Law.

Janette Ansolabehere

Today the CCA decided Mechler v. State, and held that admission of breath test results obtained an hour and a half after a traffic stop, even in the absence of retrograde extrapolation, did not violate Rule of Evidence 403. The Court ballanced the Montgomery factors and determined that the evidence was not substantially more prejudicial than probative.

[This message was edited by kyeary on 01-12-05 at .]

The court ruled that it was an abuse of discretion for the trial judge to exclude the breath test under Rule 403. That seems fairly significant to me.