I am an Assistant General Counsel for DPS. Currently, I am working with our Breath Test Section on some issues. I would like to ask for input from TDCAA members concerning the following question:

How has the Court of Criminal Appeals' decision in Mata v. State affected your ability to sucessfully prosecute breath or blood test failure DWI cases?

If you don't wish to post your answers to the bulletin board (lurking defense attorneys), you can e-mail me directly at janette.ansolabehere@txdps.state.tx.us

I will greatly appreciate all the advice, war stories, suggestions, etc., that you can give me. If you wish to call me, my number is 512-424-2890.

Thanks,

Janette Ansolabehere

The passage of the new legislation reproduced below would solve all of our problems.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 49 of the Penal Code is amended by adding Sec. 49.12 to read as follows:
Sec. 49.12 PRESUMPTION.
In any prosecution under Chapter 49, an alcohol concentration or amount of a controlled substance, a drug, a dangerous drug, or any other substance established by the results of an analysis of a specimen of a person�s breath or blood obtained within two (2) hours of the time the person was operating a motor vehicle, an aircraft, or a boat is presumed to be the alcohol concentration or amount of a controlled substance, a drug, a dangerous drug, or any other substance in the person�s breath or blood at the time the person was operating a motor vehicle, an aircraft, or a boat.
SECTION 2. This act takes effect September 1, 2003 and applies to offenses committed on or after that date.

Please let me hear any suggistions as to how this legislation could be improved.

In conjunction with the presumption legislation, why not make it a Class B misdemeanor for refusing to blow. If one really wants to increase the amount of breath samples given, it seems that would be the way to go.

The biggest problem we have had with Mata is making the bench understand that Mata does not prevent the admission of the breath test result but only impairs our ability to seek a conviction under the test paragraph. Defense attorneys will argue that the lack of extrapolation makes the test result irrelevant and unreliable. A judge who is inclined not to want to try a case finds that an appealing alternative to sitting in trial.
We are having to go through this testimony in motions to suppress and 702 objections at trial.

If the HGN result is relevant to show someone consumed (ingested) alcohol and was perhaps under its influence, how can you say the breath test result lacks relevance? While the court specifically explained there was no need for the state to quit buying intoxilizers, I guess your experience just goes to prove you can lead a horse to water but can't make him drink, I mean show a judge the law, but can't make him follow it.

I think the presumption would be fine so long as it did not keep blood test results that are over two hours old from being admitted into evidence.
Unfortunately many Intox Mansl cases I have seen have blood tests that are over two hours old.

There was talk about making a BT Refusal a Class B Misd in the past and I have a very large concern about that option. The law currently says that a person has no right to an attorney before they decide whether to honor their contract and give up breath/blood. If the answer to that question constitutes an offense would that ultimately lead to a reversal of the current
law? Would we have to warn a Defendant that their refusal constitutes an offense? Would their silence = refusal?

There is ample case authority that extrapolation is not necc to get a breath test result before a jury. I still believe that in the end Mata will hurt the defense attorneys experts (the ultimate sources of junk science) in that it will keep them from creative extrapolation.

Finally on the issue of leading a horse to water I think the language some are seaching for is

"You can lead a judge to logic but you can't make him think". I am of course referring only to hypothetical judges I have heard exist outside of Tarrant County.

Thanks for all the input so far--please keep it coming. Regarding Jeff Strange's comment, how many of you have had judges exclude the breath test results altogether, relying on Mata? When I was writing appellate briefs for the ALR section and was hit by a defendant with the argument that we couldn't prove BAC at time of driving without extrapolation evidence, I always argued Forte v. State, Owens v. State, and Daricek v. State. It worked in Martin v. Texas Dep't of Public Safety. (Jury can infer BAC based on breath test results and other evidence of defendant's condition at time of driving). I get the impression of Jeff that some judges are actually interpreting Mata to mean that the breath test results themselves are not admissible.

Janette Ansolabehere

So far, our office has received calls where at least two different judges, in "reliance" upon Mata, actually suppressed breath test results because there was no extrapolation evidence. It's hard for me to believe that any sentient being could read Mata and come to that conclusion, but there it is.

Matthew Paul

Take a look at Bagheri v, State, (San Antonio June 28, 2002) (en banc)

http://www.4thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=15122

Footnote 1 seems to all but hold that test results are not relevant without proper extrapolation testimony.

I think the S.A. court misunderstands the out-of- state cases it cites. In the Jarman case, for example, the defendant was acquitted of the "incapable" DWI theory. The lack of extrapolation testimony part of the opinion is about sufficiency under the .10 theory, not relevance.

OK, I'm convinced. I've called my broker with instructions to sell all my shares in Intoxilizer, Inc. since their product no longer has a market. Guess the best that can be said about this opinion is: would the result be different if the test results are offered for the limited purpose of showing alcohol had been consumed? I suppose the defendants will quickly stipulate to that fact and render this proof completely inadmissible.

Let me be sure I understand the logic. He may be guilty under theory A or B. The evidence is clearly sufficient to show guilt under A and would be sufficient under B except proof in support of that theory was erroneously admitted. Since jury or some members may have utilized theory B in finding guilt and those same jurors can be assumed not to have used theory A, we must assume their verdict was influenced by the bad evidence. But if theory A is actually a subset of theory B, in other words anyone guilty under theory B must also be guilty under theory A, can we really say that in finding B someone decided against A?

Truly, the most amazing thing of all is that the court affirmed Mata and cannot now apply its new ruling to assist him. Guess the rule is, Mata (you stupid *#@!) you should have asked for en banc consideration. Or maybe the court sat down and said what's the best way we can assure the CCA must address this issue. "I know, let's decide the same issue just the opposite from the case pending on PDR, surely then they'll have to grant one of the PDRs!"

Looks like I should definitely find a good video system manufacturer to invest in, because I just don't trust the legislature to crack down on the Daubert problem anytime soon (e.g., redefine "intoxicated").

[This message was edited by Martin Peterson on 07-08-02 at .]

I can only pray that there will be an appeal of the Bagheri opinion. Footnote one does at least affirm that the Court of Criminal Appeals has left the question of admissibility of BT in the absence of extrapolation open. The time for the Court of Criminal Appeals to once and for all clear this mess up is now!

One of our local judges has ruled a breath test imadmissable under TRE 403 because it was taken 1 1/2 hours after the defendant was arrested. It is my understanding the court reporter has not fininshed the record. But appeal has been perfected and we have a decent record. David Newell will be writing the brief for Fort Bend County.

I get the distinct feeling from Justice Duncan's language in this latest case that the court is still smarting over the Texas Supreme Court's reversal in the Mireles case. Personally, I disagree with her analysis that somehow Forte is no longer good law because it is pre-Daubert. The application of Daubert or Kelly is to determine if the chemical test results are admissible. I don't see how any reasonable court could hold that breath test analysis performed in compliance with state regulations (promulgate under specific statutory authority) is not admissible because the Intoxilyzer is unreliable. All Forte said is that once the test results are actually admitted into evidence, a trier of fact can draw the inference that the person was per se intoxicated at the time of driving based on the results and other factual evidence regarding the person's condition at the time of the stop and arrest. Extrapolation was specifically rejected by the Forte court as a requirement for a trier of fact to make the conclusion. It least that's how I read it and it is what the Austin Court of Appeals held in Martin which was my case on appeal.

There's no pressure David. Just the entire highway safety of the entire Great State of Texas.

Richard: In reading back over this thread I had to chuckle when reading your suggestion that the CCA could ever "once and for all" clean up a legal issue. The good news about Bagheri is the CCA did not adopt footnote 1, so we still have to think Stewart is wrong (and Garcia is right), and I still think you can offer the test results with a limiting instruction and get around the "possible misuse harm problem" in two-pronged liability theory cases. The only bad news as I see it is the court appears to read Forte somewhat differently than Janette suggested. Maybe the real problem in Bagheri is the State's admission/concession that the evidence was erroneously admitted. Why couldn't Bexar County argue it was admissible in line with Scherl despite Mata? I thought that unless the complaining party had requested a limiting instruction, "the court's action in admitting such evidence without limitation [cannot] be a ground for complaint upon appeal." Tex.R.Evid. 105(a). Or that it cannot be said that the decision to admit evidence falls outside the zone of reasonable disagreement if it can be supported under any theory of law, regardless of whether the theory went unmentioned at trial. Nunez, 27 S.W.3d at 213.

Stay tuned, sequels from the CCA to follow.

Martin. I will stand by my optimism that the Court will solve this problem. I base that on my belief that logic will ultimately prevail. The San Antonio Court of Appeals and it's misguided opinions will soon be dashed against the rocks of logic and legal precedent. One sign that all is not lost are opinions like that in Garcia v. State, 112 S.W.3d 839 (Tex. App. - Houston (14th Dist.) Aug 7, 2003. This case is a must-read for anyone looking for a clear discussion of why breath and blood tests are and have always been admissible without retrograde extrapolation. I will continue to hope and believe that the Court of Criminal Appeals will fix this issue before the end of the year because I find the alternative to be unacceptable.

Glad you clarified that legal precedent is not always one of those rocks of logic. What a beautiful phrase though, I love it! If Stewart were to get affirmed, then the repeal of the DWI law (or at least the most viable means of enforcing it) will have been completed. Otherwise, our hope and faith will have been rewarded. Either way, at least the stage will be set for the next legislative session. Has anyone had great success in getting the necessary information to get an admissible retrograde analysis?

I have been having great results getting retrograde extrapolation evidence in. For one thing, our officers have been getting better about asking the predicate questions, which I think is the real and only solution. Changing the habits and minds of hundreds of law enforcement officers seems easier than changing either the Court's mind or the Leg's mind...

However, I think the way our technical supervisor explains it gets around many traditional ret. ex. arguments from the defense. He uses DUI Professional software (originally developed by defense attorneys) to work backwards from 3 facts- gender, weight, and BAC at time of test, plus known stop drinking time (which in the best case scenario for the defendant is the time of stop) to calculate the total minimum amount of alcohol consumed. From that he can work backwards to come up with a graph of BAC, and uses that to say whether BAC was rising, falling etc. Technically not ret. ex. because he doesn't have to have a definite BAC number for the time of driving (though he can.)

So, I'm reading through Mata and wondering:

If the concern is

1. that the Defendant may be on the upside of his BAC spike while he's driving thereby getting more intoxicated as the alcohol is absorbed into his system while he's being stopped, interrogated, arrested etc.

2. that the in station BAC test is unreliable because the defendant's BAC could be higher than the 'while driving actual BAC because the results reflect BAC on either the upside of the spike or the down side of the spike if the spike happens after he's driving/stopped by the police,

Then,

wouldn't a breath test on a portable breath test device indicate which side of the spike he was on?

See, in Mata they are concerned that a person could 'chug-a-lug' just before getting stopped, thereby ensuring that the spike in BAC will occur up to an hour later after the consumption of beverages. But, officers are instructed to wait at least fifteen minutes if the driver informs them that the last beverage consumed by said driver was within fifteen minutes of the stop. (The concern is that there will be alcoholic vapors in the esophagus that would cause an extremely high reading on the PBT.)

So, if the PBT doesn't come back with an enormous reading, no 'chug-a-lug session can have happened. Had there been some 'chug-a-lug'ing, the PBT would have registered way off the chart.

If everything I've said so far is accurate, then a PBT reading under say, .2 or so, should be evidence upon which the expert can rely to show that the BAC spike occured BEFORE the driver was stopped. Thereby restoring retrograde extrapolation. Maybe.

Thoughts?

I know this is a wild hare idea, I just thought I'd see what you learned types considered...

That getting the necessary information and making use of it in the courtroom remains a big problem was again recently demonstrated. Owens, (45 year sentence overturned). Like Bagheri, this case continues to suggest you should proceed only on a loss of use theory unless you are absolutely certain you are not going to get 'Matafied" on appeal.