Driving While Intoxicated Case Law Update - Texas District ...

C. CHARGE ON WORKING CONDITION OF INSTRUMENT
1. NOT ENTITLED TO SUCH A CHARGE
Stone v. State, 685 S.W.2d 791 (Tex.App.-Fort Worth 1985), affd., 703 S.W.2d 652
(Tex.Crim.App.
1986).
lmproperto charge jury itshould disregard resultsof test if jury had reasonable doubtastowhether
instrument was in good working order. Court held that hole in breath test tube went to weight to
be accorded the test result.
2. ENTITLED TO CHARGE AS TO DPS REGULATIONS
Atkinson v. State, 871 S.W.2d 252 (Tex.App.-Fort Worth 1994, rev'd, 923 S.W.2d 21
(Tex.Crim.App.
1996).
Should have charged on issue of whether DPS regulations regarding breath testing were complied
with. Court of CriminalAppeals holds that the charge on the working condition of instrument in this
case was proper and sets out the following standard for making that determination on page 5 and
it does bear reading. lt did remand the case to the Fort Worth Court of Appeals because that court
applied the wrong standard in determining that the failure to give the charge was not harmless.
Upon remand, that court found harm.
D. NO CHARGE ON BLOOD OR URINE IN BREATH TEST CASE
Maddox v. State, 705 S.W.2d 739 (Tex.App.-Houston [1st Dist] 1986), pet. dism'd, 770 S.W.2d
780 (Tex.Crim.App. 1 988).
Not required to include definition of alcohol concentration as it relatesto blood/urine when evidence
is that breath test given.
E. SYNERGISTIC CHARGES
1. PROPER
Grav v. State, 152 S.W.3d 125 (Tex.Crim.App.
2006).
Thisappealinvolved a DWlcasewhere fhe Sfafe alleged alcoholasthe intoxicantandthedefense
presented evidence that it was the anti-depressants the defendant was taking more than the
alcohol that caused his behavior. Ihe Sfafe's chemist testified the drugs the defendant took had
a synergistic effect and the Heard/Sutton charge was given. The defense attacked this and argued
that the intoxicant was an element of the DWI charge and that Sutton should be overruled. The
Court of Criminal Appeals rejected both of those arguments. It concluded thatthe substance that
causes intoxication is not an element of the offense. Instead, it is an evidentiary matter. The Court
affirmed that Sutton was properly decided and that a synergistic charge was properly used in this
case.
1_15