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

P. BREATH TEST ADMISSIBLE AS PROOF OF LOSS OF NORMAL
Hunt v. State, 848 S.W.2d764 (Tex.App.-Corpus Christi 1993, no pet.).
Where Court refused to submit charge on .10 definition due to inability or failure of State to
extrapolate, it was proper for the Sfafe fo argue that the jury consider the breath test result as proof
of "/oss of normal."
O. BREATH TEST RESULTS ADMISSIBILITY ISSUES
1. BREATH TEST RESULT IS NOT HEARSAY
Stevenson v.State, 895 S.W.2d 694 (Tex.Crim.App. 1995) on remand,920 S.W.2d 342
(Tex.App.-Dallas 1996, no pet.).
When lntoxilyzer operator did not testify, the Court held the fesf resu/f became hearsay and
remanded case fo Court of Appeals to make that determination (controversial decision with 4
dr'ssenfs,), When asked on remand to consider whether breath fesf resu/fs are hearsay, found
(logically) that a breath fesf s/rp could not be "hearsay" and affirmed the original holding.
Smith v. State, 866 S.W.2d731(Tex.App.-Houston [14th Dist.] 1993, no pet.).
"Computer-generated data is not hearsay." Where the computer conducfs fhe fesf dse/4 rather
than simply storing and organizing data entered by humans, the test result is not subject to a
hearsay objection. The proper objection to the admissibility of a computer-generated Intoxilyzer
printout slip should be based upon whether the Sfafe has shown that the printout is reliable.
2. PARTIAL TEST RESULTS INADMISSIBLE
Boss v. State, 778 S.W.2d 594 (Tex.App.-Austin 1989, no pet.).
Arresting officer should not have been permitted totestifythat, although valid lntoxilyzer fesf resu/f
was not obtained, digital indicator preliminarily registered alcohol content of defendant's breath at
level that was two and one half times the legal level of intoxication.
3. NEWTECHNICAL SUPERVTSOR CAN LAY PREDICATE FOR OLD TESTS
Henderson v. State, 14 S.W.3d 409 (Tex.App.-Austin 2000, no pet.).
TechnicalSupervr'sor who maintained instrument was not called to testify. The State called his
successorrnsfead who did not prepare reference sample or personally maintain instrument when
sample was given. Court held that succeeding superuisor could rely on previous superuisor's
records as basts for opinion that breath test machine was working properly. Also held to be
relevant that new superuisor had personal knowledge that old superuisor was certified.
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