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

C. INSTRUMENT CERTIFICATION
1, NEW INSTRUMENT NEED NOT BE RE.CERTIFIED
State v. Kraqer, 810 S.W.2d 450 (Tex.App.-San Antonio 1991, pet. ref'd).
When police agency substitutes one approved brand of breath testing equipmentfor another, itwas
not necessary that there be a reapplication for certification of entire breath testing program.
2. CERTIFICATION AND MAINTENANCE RECORDS ADMISSIBLE
Ponce v. State, 828 S.W.2d 50 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd).
Repods and test records which reflected that the lntoxilyzer machine used fo test appellant's
alcohol concentration wasworking properlywere admissible under Rule 803(6) and are not matters
observed by law enforcement personnel.
D. LIMITED RIGHT TO BLOOD TEST
1. FAILURE TO ADVISE OF RIGHT TO BLOOD TEST
Maxwellv. State. 253 S.W.3d 309 (Tex.App.-Fort Worth 2008).
Defendant argued that breath fesf was inadmissible because he was not afforded "his right to
contact a physician to obtain a specimen of his blood." ln overruling this point the Court points out
that Section (c) of 724.019 provides that a peace officer is not required to transport someone in
custodyto afacilityfortesting, and further, section (d) providesthatthe "fgj!.Wtjngbfuto obtain
an additional specimen or analysis underthis section does not precludethe admission of evidence
relating to the analysis of the specimen taken" by the officer originally.
McKinnon v. State, 709 S.W.2d 805 (Tex.App.-Fort Worth 1986, no pet.).
State v. Lyons, 820 S.W.2d 46 (Tex.App.-Fort Worth 1991, no pet.).
Officer has no duty to advise defendant of right to btood fesf & failure fo do so witt not affect
admissibility of breath test.
2. NO RIGHT TO BLOOD TEST IN LIEU OF BREATH TEST
Aouirre v. State,948 S.W.2d377 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).
Drapkin v. State, 781 S.W.2d71O (Tex.App.-Texarkana 1989, pet. ref'd).
Statute does not give the suspecf the right to a blood test instead of a breath test.
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