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

the probative vs. prejudicial effect r'ssue. ln holding that the probative value outweighed the
prejudicial effect, the Court pointed out that both of the samples fesfed significantly over the legal
blood-alcohol limit, the breath fesf resu/fs related directly to the charged offense, presentation of
the evidence did not distract the jury away from the charged offense, and the State needed the
evidence to prove intoxication due to evidence that defendant took field sobriefy fesfs under poor
conditions and she passed four of the field sobriefy fesfs. Note the need for the evidence was not
qs important to the Court of Criminal Appeals in Mechler.
Garcia v. State, 112 S.W.3d 839 (Tex.App.-Houston [1ath Dist]August 7,2003, no pet.).
Beard v. State, S S.W.3d 883 (Tex.App.-Eastland 1999), permanentlyabated in 108 S.W.3 304
(TCA-2003), opinion withdrawn in 2003 WL 21398347 (TA-Eastland, June 18, 2003)
(unpublished). /Case was permanently abated due to death. The body of opinion can be found at
http ://www. cca. courts. state.tx. u {opinion{028200. html.
ln response to the defendant's argument that without retrograde extrapolation the breath test
resu/fs fhemse/yes were inadmssrble as they were irrelevant to show the subject's BAC at the time
of the sfop unless the State offers extrapolation testimony. Judge Womack pointed out that the
argument was one that'\tve have never accepted and that other courts have rejected."
SEE ALSO:
Forte v. State,707 S.W.2d 89 (Tex.Crim.App. 1986).
Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. ref'd).
Texas Deoartment of Public Safetv v. Thompson, 14 S.W.3d 853 (Tex.App.-Beaumont 2000, no
pet.).
Mireles v. State, I S.W.3d 128 (Texas 1999).
O'Neal v. State, 999 S.W.2d 826 (Tex.App.-Tyler 1999, no pet.).
Martin v. Texas Department of Public Safety, 964 S.W.2d772 (Tex.App.-Austin 1998, no pet.).
Owen v. State, 905 S.W.2d 434 (Tex.App.-Waco 1995, pet. ref'd).
2. PROBATIVE VALUE OF BT OUTWEIGHS PREJUDICIAL EFFECT
Giqliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App 2006).
In determining that the trial court and Court of Appeals properly held that even in the absence of
retrograde extrapolation, evidence of two breath test samplestaken 80 minutes afterthe defendant
was driving which read .09 and .092, the Court of Criminal Appeals found as follows:
1) probative force of appellant's breath fesf resu/fs was considerable, since fhose fesf resu/fs
showed that appellant had consumed in the hours preceding the breath test, a substantial amount
of alcohol-enough alcoholto rarse firs breath alcohol concentration to 0.09. This evidence tended
to make more probable appellant's intoxication at the time he was driving, under either statutory
defi n ition of i ntoxication.
2) The Sfafebneedforthe breath festresu/fs wasconsiderable, since fhe Sfafeb videotapewhich
showed appellant as quite lucid, tended to contradict to some extent Officer Heim's testimony
concerning appellant's appearance and behavior.
3) The breath fesf resu/fs did not have a tendency fo suggesf decision on an improper basis. Ihe
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