But how will you get the PBT evidence in?

I think you get the PBT in as part of the officer's investigation, which includes the FSt's, to confirm or dispel the suspicion of the officer that ALCOHOL is the intoxicant.

Yes, you can admit that a PBT was administered, and even perhaps that it confirmed the officer's evaluation that the intoxicant was alcohol, depending on your judge-- but how will you admit the test results? How do you get them past Daubert-Kelly and the maintenance/calibration issues?

Maybe use Mata to get the results in - the result is a factor that is relevant to determining BAC @ time of driving, so it is a fact that the expert uses. Instead of having the officer testify to the result, how about having the expert testify to the result as one of the factors used to extrapolate?

Does everyone agree that so long as we know which theory the jury will rely on in assessing their verdict, neither Rule 402 or 403 can be lodged as an objection to an unextrapolated test result- as seems to me to be the holding in Martinez, No. 04-03-746-CR (11/24/04)- so long as the CCA does not say differently in Mechler?

I think that the proposed legislation would help. Also - the surcharge penalizes people who take the test. WHy not make it $2000 for refusal, $ 1000 for failure? (Not that most of my defendants can pay it, anyway.......)

I think David has a point. Back when I was writing briefs to the courts of appeal in ALR cases, we often had to deal with the defense argument that DPS was required to offer extrapolation evidence in order to prove that someone was at or over .08 at the time of operating the vehicle. I actually lost count of the number of briefs on this topic after I hit 10 in one year! Anyway, we had several cases where the defense argued that the ALJ improperly admitted the evidence of the breath test results, citing rule 403, etc. We argued that Tex. R. Evid 101(b) states that the rules of evidence may be preempted by statute, which the legislature did with Chapter 724 by it express statement that the BAC results of a chemical analysis are admissible in a civil or criminal trial, and the courts accepted that premise as correct. I don't understand why the CCA believes that the state still must prove the relevance of the test results for admissibility purposes given the language of Chapter 724.

Janette Ansolabehere