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

T. LOSS OF NORMAL & PER SE LAW EVIDENCE NOT MUTUALLY EXCLUSIVE
Daricek v. State, 875 S.W.2d770 (Tex.App.-Austin 1994, pet. ref'd).
Proof needed attrialto show "loss of faculties" and per se offense are not mutually exclusive in that
blood fesf resu/f is probative of /oss of faculties and failure of FSIs makes it probable the breath
or blood test taken an hour before is reliable.
U. NO SAMPLE TAKEN = NO DUE PROCESS VIOLATION
Johnson v. State, 913 S.W.2d 736 (Tex.App.-Waco '1996,
no pet.).
Failure of officer who arrested defendant for DWI to offer blood or breath test did not deny
defendant his due process rights. No evidence that resu/fs would have been useful or that officer
acted in bad faith (defendant was belligerent).
V. FAILURE TO TIMELY RESPOND TO REPEATED BT REQUEST = REFUSAL
State v. Schaeffer,839 S.W.2d 113 (Tex.App.-Dallas 1992, pet. ref'd).
During videotape session, appellant changed his mind several times about consenting to breath
test. Officers refused to read appellant his rights for third time, or allow him to read them himself.
Court found that appellant never affirmatively consented to breath test, and that trial court could
have reasonably concluded, based on the record, that appellant did not voluntarily consent or
refuse to give a breath test. Judge's suppression of breath test upheld.
W. EXTRAPOLATION
1. IS NOT NEEDED TO PROVE DEFENDANT WAS INTOXICATED UNDER
CHEMICAL TEST DEFINITION
Stewart v. State, 129 S.W.3d 93 (Tex.Crim.App. 2004).
ln a lower court opinion, the San Antonio Court of Appeals held that a .16 breath test result was
inadmissible, irrelevant, and "no evidence" in the absence of extrapolation and should therefore not
have been admitted into evidence. The Court of Criminal Appeals reversed and remanded
rejecting that argument. It specifically held that the resu/fs of a breath test administered eighty
minutes after the defendant was pulled over were relevant even without retrograde
extrapolation. One argument that the court rejected was that Section 724.064 of the
Transportation Code mandates that such resu/fs are admissible in DWlcases. The Court also
failed fo address fhe r'ssue of whether the probative value of the breath test results were
outweighed by the prejudiciat effect. The case vyas re manded to the San Antonio Court of Appeals
fo address fhaf issue and other points.
Ihis case was.senf back by the Court of Criminal Appeals so fhe Court of Appeals could answer
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