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

XVII. BREATH TEST
A. IMPLIED GONSENT LAW
Rodriquez v. State, 631 S.W.2d 515 (Tex.Crim.App. 1982).
Statutory presumption of consent to breath test.
Graham v. State, 710 S.W.2d 588 (Tex.Crim.App. 1986).
"lmplied consent law" does not place any mandatory duty on the State to administer a chemical
test.
Growe v. State,675 S.W.2d 564 (Tex.App.-Houston [14th Dist.] 1984, no pet.).
Motorisfs implied consent r's nof subject to motorist's electing to contact an attorney.
B. BREATH TEST PREDICATE
Harrell v. State,725 S.W.2d 208 (Tex.Crim.App. 1986).
PREDICATE:
1) proper use of reference sample.
2) existence of periodic supervision over machine and operation by one who
understands scientific theory of machine.
3) proof of result of fesf by witness or urifnesses qualified to translate and interpret
such result so as to eliminate hearsay.
Kercho v. State, 948 S.W.2d 34 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).
The testimony of an Intoxilyzer operator and a technical superuisor to the effect that the instrument
was periodically tested to ensure that it was working properly, that a test sample run prior to
appellant's lntoxilyzer fesfs demo nstrated the machine was functioning properly at that time, that
the operator had been trained in the operation of the lntoxilyzer machine, and that the technical
supervisor, who also testified about the theory of the fesf, was certified by the Department of Public
Safefy as a technical supervisor, was sufficient predicate to admit fhe resu/fs of the lntoxilyzer test.
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